This week’s top three summaries: R v Frampton, 2021 ONSC 5733: #vaccination status of jurors, R v Tutu, 2021 ONSC 5375: #satchel #racial profiling , and R v Notay, 2021 ABQB 706: #impaired operation RPG
R v Frampton, 2021 ONSC 5733
[August 25, 2021] Excusing Jurors for "Other Reasonable Cause" s.632 Criminal Code [Kevin B. Phillips J.]
AUTHOR’S NOTE: Herein, in a natural progression of preserving jury trials during the covid-19 pandemic, Justice Phillips imposed a vaccination requirement on prospective jurors in a multi-week jury trial pursuant to 'other reasonable cause" for excusing jurors in s.632(c) of the Criminal Code. While the norm in many jurisdictions has been moving jury trials to locations that have larger spacing between jurors and other participants or online, this solution could see juries return to regular courthouses while the pandemic continues. With vaccination and masking requirements, juries could perhaps safely return to the buildings our taxes continue to pay for. Defence counsel may wish to bring this application in appropriate cases where they believe a pro-vaccination jury might be beneficial considering the possible correlations between vaccination attitudes and other issues that can arise in a criminal trial.
Facts
[2] I have decided that the jury shall consist of only those who have been fully vaccinated against Covid-19. I intend as part of the jury selection process to ask each prospective candidate if they have been fully vaccinated. If the answer is a negative one, that candidate shall be excused in accordance with s.632(c) of the Criminal Code. These are my reasons for that decision.
[3] Pursuant to s.626 of the Code, a person’s eligibility to serve as a juror is governed by the Juries Act, R.S.O. 1990, c. J.3. Section 4 of that legislation provides that a person is ineligible for service if he or she is physically unable to discharge the duties of a juror and cannot be reasonably accommodated in such a way as to allow them to perform those duties.
[4] Serving on a jury requires a physical ability to attend court each day of the trial, along with an ability to observe the proceedings with focused attention. The job also requires interaction and sometimes spirited communication in a confined indoor space.
[7] To my mind, in the context of the burgeoning “fourth wave”, allowing an unvaccinated person to serve as a juror would irresponsibly introduce risk to the trial. An unvaccinated juror is a potential conduit for the Covid-19 virus to make its way into the jury room. Obviously, such a result would derail the proceeding. Indeed, worrying about such an outcome would likely become a constant distraction.
[8] Because including an unvaccinated person on the jury introduces a real risk that the trial could be compromised, I conclude that such a person is physically unable to perform the role of juror. In the context of the pandemic’s fourth wave, an unvaccinated person is not physically able to contribute to the jury process in the manner called for in the circumstances. Simply put, a juror candidate who is unvaccinated against a serious and contagious illness that is currently spreading out of control and about which there is much concern introduces untenable risk of physical harm as well as distracting anxiety to the others compelled by law to serve alongside.
[12] I have two issues with relying on this sort of thing to address the problem. First, plexiglass and the like does not always work as it is supposed to. This is not my first jury trial during the pandemic. I did a long trial in 2020 in the same special courtroom. What I found is that human nature being what it is, people often slip up on the distancing and related rules, especially as they get familiar with each other and their surroundings. I repeatedly saw jurors do things like leaning in to make comments to each other or to assist one another in finding something in a photobook. I actually had to tell a particular gentleman to stop holding the door for the person exiting after him because it caused them to come too close. I could give other examples but I think the point is made.
[13] A second, and more compelling, reason to reject the non-vaccination measures is that they are simply not the best way. The available science makes clear that vaccination is the superior approach to minimizing risk of Covid-19 illness both per individual and on a collective basis. The stakes are high. Covid-19 is potentially fatal. In endeavouring to minimize risk of transmission, why would we opt to use a method that is not the best method? Surely, the reputation of the administration of justice would be compromised if a court declined to adopt the optimal approach toward preserving the health of those compelled by law to participate in the judicial process.
[14] ... It continues to qualify as a global pandemic and is causing substantial harm. As a result, in my judgment, the cost-benefit analysis breaks the other way when it comes to Covid-19 vaccination and jury duty. Any upside in accommodating an unvaccinated juror is outweighed by the downside of exposing the remaining jurors to risk of physical harm as we try to make this fourth wave the last one.
[16] It is important to consider that the law understands privacy to exist on something of a sliding scale. Some things are more private than others. One’s core biographical information, for instance, carries higher privacy concerns than the contents of a trash bag one has left at the curb. In my view, the privacy interest inherent in whether a person has or has not been vaccinated against Covid-19 would sit toward the low end of the privacy spectrum...
[18] For those reasons, I intend to ask each potential juror whether they have been fully vaccinated. If they have not, I will be excusing them from duty.
R v Tutu, 2021 ONSC 5375
[August 4, 2021] Charter s.9 - Racial Profiling of Black Men with Satchels [André J.]
AUTHOR’S NOTE: Satchels have become a more common item for men to carry during the last 10 years. While the satchel has become a more common male accessory, it has also become used for other nefarious purposes just like other luggage or articles of clothing. It appears that police services are training their members to correlate satchels in certain socio-economic or racial neighbourhoods with hidden firearms. Allowing such correlations to be used to interfere with personal liberty has rather obvious implications for the over-policing of racial minorities. This case provides defence counsel with the authority to call satchel correlation with firearms what it is: racial profiling.
Introduction and Background
[1] In this blended voir dire, the Crown seeks an order declaring that Mr. Tutu’s statement to the police, following his arrest on August 5, 2018, was voluntary. Mr. Tutu also seeks an order that Constable Jamie Wallace of the Peel Regional Police (PRP) violated his s. 7, 8 and 9, 10(a) and 10(b) Charter rights and that the evidence of the firearm found in his satchel should be excluded, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.
[2] On August 5, 2018 PRP officers Jamie Wallace and Christopher Galvao investigated a group of black males in the parking lot of a bar in Mississauga. Constable Wallace directed Mr. Tutu, who was carrying a black satchel on his back, to come forward. The officer later gave the following reasons why he did so:
a) Mr. Tutu did not make eye contact with him;
b) Mr. Tutu “bladed” him or turned sideways in an apparent attempt to hide the satchel; and
c) Mr. Tutu tried to hide behind another male when the police officers arrived at their location.
[3] Mr. Tutu came to the officer as directed. Constable Wallace grabbed the satchel and felt the outlines of a firearm within it. Constable Wallace then arrested Mr. Tutu for possession of a firearm. He later recovered a Springfield Armory firearm, a magazine and ammunition from the satchel.
a) DID CONSTABLE WALLACE RACIALLY PROFILE MR. TUTU WHEN HE INVESTIGATED HIM ON AUGUST 5, 2018?
THE LAW
[11] In Grant, the Court recognized detention may also be psychological. It stated:
Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject’s position would feel so obligated….
[12] The Court further noted at para. 31 that:
…As held in Therens, this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police. As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.
[13] In R. v. Thompson, 2020 ONCA 264, at para. 36, the Court of Appeal noted that:
A psychological detention can arise either if: (1) an individual is legally required to comply with a police direction or demand (as with a demand for a roadside breath sample); or (2) absent actual legal compulsion, “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant, at paras. 30-31; Suberu, at para. 22; and Le, at para. 25. This involves “an objective determination, made in light of the circumstances of an encounter as a whole”: Suberu, at para. 22.
[14] The Alberta Court of Appeal in R. v. Saretzky, 2020 ABCA 421, at para. 31, “It is the perceived loss of choice which requires a psychological detention.”
RACIAL PROFILING
[15] In Peart v. Peel (Regional Municipality) Police Services Board (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (ONCA), the Ontario Court of Appeal noted, at paras. 89-90, that:
Racial profiling occurs when race or racialized stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or suspect treatment. The one exception to this is where race is used as part of a known suspect’s physical description, the description is detailed and an individual is investigated because he or she reasonably matches that description.
[16] Justice Doherty further noted at paras. 95-96, as follows:
…The courts, assisted by various studies, academic writings, and expert evidence have come to recognize a variety of factual indicators that can support the inference that the police conduct was racially motivated, despite the existence of an apparent justification for that conduct…
The indicators of racial profiling recognized in the literature by experts and in the caselaw can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case…..
[17] In R. v. Richards, 1999 CanLII 1602 (ON CA), [1999] O.J. No. 1420, at para. 24, the Court of Appeal noted that:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
[18] Racial profiling may be the result of overt, subconscious or institutional racial bias: R. v. Brown, 2003 CanLII 52142 (ON CA), [2003] O.J. No. 1251, at para. 8. Racial profiling can rarely be proven using direct evidence; it must be inferred from the circumstances of the police action: see Peart v. Peel Regional Police Services Board, 2006 CanLII 37566 (ON CA), [2006] O.J. No. 4457, at para. 95.
[19] Racial profiling is improper even if it was only one of other factors in a decision to detain or arrest a detainee: Brown v. Durham Regional Police Force, 1998 CanLII 7198 (ON CA), [1998] O.J. No. 5274; Richards; R. v. Dudhi, 2019 ONCA 665, at paras. 62-63. The Court of Appeal noted in Dudhi that:
Where race or racial stereotypes are used in any degree in subject selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.
[20] Similarly, the Supreme Court of Canada noted in R v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431 at para. 76, that racial profiling occurs when race or racial stereotypes are used, consciously or unconsciously, and to any degree, in the selection or treatment of a subject. See also R v Sitladeen, 2021 ONCA 303, at para. 50.
The Facts
[23] They then drove down a ramp to a lower level of the parking lot where they saw another group, of mostly black males and a few black females. They stopped on the ramp in a location which allowed other vehicles to get through. Some persons were playing loud music in their vehicles.
[24] The officers parked their cruiser. Most of the males were 3 to 5 feet from the front passenger side of the unmarked cruiser. Constable Wallace greeted the group by saying, “Hey, how’s everyone doing?” The males appeared surprised with a “wide-eyed” look. No one responded to his greeting. They stared at him. He took a step towards the group and greeted them.
[25] The officer testified that he noticed a male, later confirmed to be Mr. Tutu, making a “very suspicious movement.” The movement was that Mr. Tutu tapped the satchel he was carrying with his right hand to prevent the officer from seeing it. Mr. Tutu, according to the officer, then “bladed” his body thereby concealing the right side of his body. Constable Wallace felt that this was significant given that the satchel was on the right side of Mr. Tutu’s body. The officer had also seen a police circular indicating that suspects used satchels to carry firearms. The officer’s suspicion was further aroused when Mr. Tutu stepped behind another male in an apparent attempt to conceal the satchel. “I saw him tap it with his right hand,” the officer testified.
[26] The satchel appeared to contain something heavy. “It felt very obvious something was in there,” the officer added. “His eyes were very wide, mouth ajar and he was just staring at me.”
[27] These observations, Constable Wallace testified, left “no doubt in my mind,” that there was a weapon in the satchel. He therefore ordered Mr. Tutu to “come here.”
[28] Mr. Tutu looked at the satchel and then at the officer. Constable Wallace told him, “Don’t reach for it.” He repeatedly asked Mr. Tutu to show him his hands. Mr. Tutu did not respond. Constable Wallace told the male behind Mr. Tutu to get out of the way. He ordered Mr. Tutu to walk towards him. He then handcuffed Mr. Tutu behind his back and told him that he was under investigative detention.
[29] Constable Wallace squeezed the satchel and felt the outlines of a gun. He yelled “gun” and contacted dispatch. A male came towards him aggressively, prompting him to call for more units.
[43] After Constable Wallace had handcuffed Mr. Tutu, the other males started to come forward. They were all advised they were being detained and that they should place their hands on the fence. The males complied. A picture showed four of the males being held at gunpoint by police officers.
APPLICATION OF THE LAW TO THE EVIDENCE
[44] Constable Wallace provided reasons why he detained Mr. Tutu by ordering him to come to him. These included:
a) Seeing Mr. Tutu with a satchel;
b) Mr. Tutu’s actions which he described as “blading”;
c) Mr. Tutu attempts to hide the satchel;
d) Mr. Tutu’s attempts to hide behind another male;
e) The information gleaned from a police circular that criminals typically conceal their firearms in satchels; and
f) The parking lot was known in police circles as a “hotspot” for illegal activity.
[46] With these legal principles in mind, I turn to Constable Wallace’s evidence. Before I do, I must address a preliminary issue raised by Ms. Schofield which is the suggestion that because the officer is a black man, it may be believed racial profiling could not have played any role in his investigation of Mr. Tutu.
[47] The Crown did not advance this position and rightly so. Unconscious racial bias is not the exclusive preserve of white police officers; it can be a factor in any police investigation irrespective of the race or ethnicity of the officer. The fact that Constable Wallace is black, and repeatedly referred to Mr. Tutu as “bro” or “fam”, which is a reference to family, during the police interview, is not evidence of the absence of unconscious racial bias. The conscious racial bias deals with the exercise of police powers by law enforcement agents rather than with the race or ethnicity of the law enforcement agents who exercise these powers.
[48] In my view, there was nothing wrong with the officers deciding to drive into the restaurant’s parking lot as part of their proactive policing mandate under the PRP’s S.T.E.P. programme. What is problematic however, in my view, is the subjective beliefs formed by Constable Wallace during his interaction with the second group of black males. According to his evidence, he greeted the group but was confronted by a stony silence. Significantly, he clearly construed this non-response as an indicator that members of the group were up to no good. He testified that they did not greet them enthusiastically. He added that they had a “wide-eyed, deer eyed look.” He concluded, based on the silence from the group that he was immediately suspicious that something “was off”. Constable Galvao added that he developed a “very bad feeling” about the group given their failure to respond to the greeting. These descriptions clearly suggest, in my view, that the officers immediately concluded that the black males were involved or contemplated being involved in some nefarious or illegal activity and were caught in the act of doing something illegal.
[49] And yet other than this non-response, the officer did not observe any suspicious action or activity by members of the group. Indeed, they were not investigating any specific criminal activity at the parking lot. They were merely checking on the group and looking for signs or evidence of criminal activity.
[50] The history of police interaction with young black males has been the subject of judicial comment in many cases. The unfortunate reality is that many young black males are wary, suspicious and distrustful of the police. The fact that some black males would be unresponsive to a greeting from a police officer, even if one of them is black, is not indicative of any suspicious activity that they were engaged in. To that extent, the conclusions drawn by the officers about the non-response of the males, in my view, is evidence of racial stereotyping whether conscious or unconscious. The fact that they were playing loud music, on Caribana Sunday, is not evidence of wrongdoing. [Emphasis added]
[52] I do not accept the officer’s testimony concerning his actions for the following reasons. The first relates to the speed with which Constable Wallace acted. Constable Galvao testified that within seconds of getting out of their unmarked cruiser, he heard his partner issuing commands to Mr. Tutu. Mr. Tutu must have acted very quickly when he “bladed” himself, tried to hide the satchel and tried to hide behind another black male. And yet Constable Wallace testified that most of the black males, including Mr. Tutu, stopped and froze when they recognized that it was the police.
[53] Third, when pressed during cross-examination, regarding how Mr. Tutu had tried to hide the satchel, the officer replied that Mr. Tutu “was trying to make his movements subtle.” He conceded that the satchel could not have been moved more than two and half inches. He testified that he never “fully” lost sight of the satchel.
[54] Fourth, when questioned about the male Mr. Tutu had hidden behind, the officer could not give a description of this male.
[55] Fifth, the officer testified that Mr. Tutu “displayed the characteristics of an armed person” by having a satchel. The officer testified that he had attended a course during which he learnt that persons carried firearms in satchels. In my view, there is nothing suspicious about a young black male with a satchel in a group of other black males during a Caribana weekend. In my view, it is the investigation of Mr. Tutu that displayed the characteristics of racial profiling. [Emphasis added]
[57] In my view, Constable Wallace’s testimony regarding Mr. Tutu trying to hide the satchel and hiding behind another male is nothing more than an attempt to justify his decision to command Mr. Tutu to step forward, thereby detaining him. He did so because he subjectively assumed that Mr. Tutu was carrying a firearm in the satchel.
[58] There is additional evidence which supports this view. Constable Wallace’s demeanour on the stand was both defiant and arrogant. He sought to justify his actions by pointing to the fact that he recovered a firearm in the satchel. When, under cross-examination, Ms. Schofield put to him that police services in other jurisdictions facilitated an accused’s exercise of his or her right to counsel at the scene of an arrest, he dismissively replied, “I am not concerned with other jurisdictions. It is irrelevant.”
[59] In my view, racial profiling played a role in the detention of Mr. Tutu.
[62] Given my conclusion that Mr. Tutu was unlawfully detained, it logically follows that the search of Mr. Tutu’s satchel was similarly unlawful. The officer conducted a search of Mr. Tutu’s satchel when he grabbed it to feel its contents. When his hunch proved to be correct he reached into the satchel and recovered the firearm. The recovery of the firearm cannot legitimize Constable Wallace’s actions. The officer therefore breached Mr. Tutu’s s. 8 Charter rights.
Section 24(2) Analysis
[69] Mr. Tutu’s arrest was partly on account of racial profiling. As a result, his rights under s. 8, 9 and indeed, the equality provisions under s. 15 of Charter, were violated. The reliance of race as a proxy for criminal activity amounts to a serious violation of the rights of a racialized person.
[70] The carrying of a satchel, a practice which is quite commonplace in the community and one which cuts across all racial, ethnic and even class lines should not be viewed as suspicious or indicative of criminal activity when possessed by a black male. This breach of Mr. Tutu’s Charter rights is very serious.
[72] The impact of the impugned conduct on Mr. Tutu’s Charter protected rights was serious. He was ordered to approach Constable Wallace, was consequently detained unreasonably before being arbitrarily arrested and taken to a police division.
[75] However, in certain cases, the court cannot be seen to condone behaviour that undermines one of the most important tenets of our democracy which is the right of every citizen not to have their rights against arbitrary arrest and unlawful search and seizure be taken away by law enforcement officers. Maintaining fidelity to this overarching duty plays an important role in maintaining the integrity of our judicial system. To that extent, this factor also favours exclusion
R v Notay, 2021 ABQB 706
[September 3, 2021] Charter s. 8 - Reasonable Ground for Impaired Arrest with an Accident [Justice N.J. Whitling]
AUTHOR’S NOTE: Signs or admissions of alcohol consumption coupled with a serious accident may lead to an impaired driving arrest nine times out of ten. However, without more it should not lead to a conviction after consideration of the requirement of reasonable grounds for arrest. This case provides a good overview of the law and why that should be the case.
Overview and Facts
[1] The accused, Brahamjot Notay, stands charged on a nine-count Indictment with four counts of impaired driving causing bodily harm, four counts of driving “over 80” causing bodily harm, and one count of driving while disqualified. All of the charges relate to a motor vehicle collision which occurred on August 25, 2018, at or near Edmonton, Alberta.
[5] In the early morning hours of August 25, 2018, a collision occurred at the intersection of Winterburn Road (being 215th Street) and Whitemud Drive which involved a white Dodge Journey and a black Lexus RX 350. Scene photographs demonstrate that the front end of the Dodge impacted with the passenger side of the Lexus. To adopt a common expression sometimes used by the trial participants, the black Lexus was “T-boned” by the white Dodge. The collision occurred roughly in the middle of the intersection.
[6] Although the sky was dark at the time of the collision, the intersection was fairly well illuminated by street lights. There was no rain or fog, and the road was dry.
[7] The intersection of Winterburn Road and Whitemud Drive is controlled by traffic signals. Mark Martinez, who was the driver of the white Dodge, would later testify before me that he was driving northbound on Winterburn Road and had come to a stop at the previous red light where Winterburn Road intersects with the entrance to Costco. After the light turned green he accelerated towards the intersection with Whitemud Drive. Before his vehicle had reached 60 kilometres per hour, the light at that intersection turned green, and Mr. Martinez proceeded through. At that time his white Dodge collided with the black Lexus, which he believed had run a red light.
[10] Following the collision, a number of emergency response vehicles attended at the scene, including fire trucks, ambulances, and police vehicles. There were perhaps a dozen emergency response personnel at the scene of the collision.
[11] The accused received on-the-scene medical treatment from two paramedics, Shanna Reimer and Richard Poulin. The accused remained in their care while he was transported by ambulance to the University of Alberta hospital. Following standard procedures, Ms. Reimer and Mr. Poulin recorded some of the key events and observations in a Patient Care Record or “PCR” which was included as part of Exhibit 1 on the voir dire before me.
[13] The details of Cst. Taylor’s investigation are examined in greater detail throughout these reasons. In brief overview, however, Cst. Taylor spoke briefly to paramedics at the scene and then followed the ambulance transporting the accused to the hospital. He arrived at the hospital at 3:26 am, and advised the accused that he was being investigated for impaired driving, and was being detained on that basis. Cst. Taylor did not advise the accused of his s. 10(b) rights at the time of that initial investigative detention. At that time, Cst. Taylor made certain observations of the accused’s condition. Between 4:15 and 4:45 am, while the accused was receiving medical treatment, Cst. Taylor formed grounds for an evidentiary blood demand. At 4:55 am, Cst. Taylor spoke to the accused’s doctor respecting the preconditions for such a demand. Cst. Taylor placed the accused under arrest at 4:58 am, and advised him of his right to counsel at 5:03 am. He provided the accused with a phone to speak to a lawyer at 5:06 am, and was advised by the accused’s father that the accused was done speaking to a lawyer at 5:10 am. At 5:13 am, the accused was cautioned as to his right to silence, and at 5:15 am, Cst. Taylor read an evidentiary blood demand. Following the accused’s agreement to comply with the demand, a first sample was drawn at 5:35 am, and a second sample was drawn at 5:36 am.
[14] After leaving the hospital that morning, Cst. Taylor called back to the hospital by telephone, and asked that the blood drawn from the accused for medical purposes be held for 30 days pending an application for a warrant. His request was agreed to, and the hospital retained those blood samples for the RCMP. Approximately three weeks later, on September 18, 2018, Cst. Taylor drafted an Information to Obtain a Search Warrant (“ITO”), and obtained a warrant for the seizure of the hospital blood and a production order for the seizure of the accused’s medical records. Both the hospital blood and the blood demand blood were subsequently delivered to a laboratory by Cst. Taylor for analysis.
Factual issue regarding Cst. Taylor’s communications with Ms. Reimer
[16] An important factual issue which is common to several aspects of the accused’s application pertains to the communications which occurred between Cst. Taylor and Ms. Reimer. They are summarized by Cst. Taylor in his ITO of September 18, 2018, as follows:
12. Emergency Medical Services (EMS) Shanna Reimer verbally advised me of the following:
a. Reimer was informed by the male subject in her ambulance that he was the driver of one of the motor vehicles.
b. Reimer advised me that when she asked the driver if he had consumed any drugs or alcohol, he admitted to consuming alcohol.
c. Reimer informed me that she believed that the male subject was intoxicated by alcohol.
[17] Although neither Ms. Reimer nor Mr. Poulin had a specific recollection of their conversations with the accused, there appears to be no dispute about the fact that they did, for the purpose of providing him with medical treatment, ask him whether or not he had consumed any alcohol or drugs. Posing such a question is part of their standard practice, and the PCR they prepared contains the following notation: “Pt stated ‘Yes, Ive had about 8 drinks’”; “ETOH Like Smell on Breath; Patient Admits to Alcohol Use”; and “Suspected Intoxication”. What is disputed, however, is whether or not Ms. Reimer actually communicated this information to Cst. Taylor, given its confidential nature.
[an extensive consideration of the evidence follows] [54] In conclusion, I find that the Crown has not proven, on a balance of probabilities, that Ms. Reimer verbally advised Cst. Taylor of the information contained in paragraph 12 of his ITO of September 18, 2018. Two of the Crown’s three witnesses respecting those communications effectively deny that they occurred. Those two witnesses are both credible, professional persons who were both said to have been at hand at the time. Given the nature of their practices and policies as medical professionals, I find it highly unlikely that both of them would have forgotten communications of their patient’s confidential medical information to a police officer.
The s. 9 Challenge to the Arrest
[57] Although listed as Ground 3 in the accused’s Application, I will deal first with the accused’s application pursuant to s. 9 of the Charter. This aspect of the application focuses upon the accused’s arrest by Cst. Taylor at the hospital at 4:58 am. The accused argues that since Cst. Taylor did not have “reasonable and probable grounds” to arrest the accused, the arrest was arbitrary and contrary to s. 9.
Summary of Facts
61] In my view, the most significant information identified by Cst. Taylor in his testimony and in his ITO in regards to impairment was the information said to have been communicated to him by Ms. Reimer.
[62] The other indicia of impairment relied upon by Cst. Taylor in the ITO consists of the initial advice he received from dispatch to the effect that one of the drivers in the collision was believed to be impaired by alcohol, together with the following:
18. I continued to make the following observations from Notay [at the hospital]:
- Notay had a strong odor of alcohol / liquor stemming from his breath.
- Notay had red glassy eyes.
- Notay appeared groggy and had slow responses when questioned.
- Notay had difficulties spelling his name and repeatedly lost focus, often being prompted to continue.
- Notay’s cognitive function appeared to be slow in processing information and responding to questions.
[63] Notably absent from the circumstances relied upon by Cst. Taylor is any information respecting the manner in which the accused had been driving, or any other information respecting the nature or cause of the collision.
[69] In his testimony, Cst. Taylor acknowledged that at the time of the arrest, he did not have any driving pattern information, or other information respecting how the collision had happened. He had not interviewed Mr. Martinez or any other persons involved in the collision himself, and he was not in possession of any witness information collected by other police officers
[70] Other information that was available to Cst. Taylor at the time of the arrest and at the time he swore his ITO included the dry road conditions and clear visibility.
[71] At the time of the arrest and the preparation of the ITO, Cst. Taylor also considered and relied upon the accused’s medical condition. He had been advised that the accused had experienced a head trauma, and he recalls observing a bruise or contusion somewhere on the accused’s face. He was also aware that the accused had sustained a chest injury in the collision, and that he had not been wearing a seatbelt. He knew, and stated in the ITO, that the accused’s chest injury would have affected his breathing, particularly since the accused had asthma. Cst. Taylor relied upon these circumstances in support of his conclusion that it was impractical to acquire a breath sample, as opposed to a blood sample, from the accused.
[79] In Hicks v Faulkner (1878), 8 QBD 167 (Div Ct) at p. 171, aff’d (1882), 46 LT 130 (CA), Hawkins J. provided the following description of the standard “reasonable and probable cause”, being substantially the same requirement as the “reasonable grounds” requirement of s. 495(1)(a):
Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
[80] The above definition was adopted by Lamer J. (as he then was) in Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170 at para. 43.
[81] In the century-and-a-half since Hicks, the courts have intentionally declined to add much greater definition to the “reasonable grounds” standard....
[83] The words “reasonable grounds” in s. 495(1)(a) create the same standard as the words “reasonable and probable grounds” (R v Loewen, 2011 SCC 21 at para. 5). The phrases “reasonable probability” and “reasonable belief” also approximate the same standard (R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 at p. 1166). Similarly, the English common law standard of “strong reason to believe”, the American standard of “probable cause” and the Canadian standard of “reasonable ground to believe” are “identical” (Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at p. 167). In contrast, it is an error to equate the reasonable grounds standard with the higher standard of a “balance of probabilities”, “more probable than not” or a “50% statistical probability” (Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114; R v Loewen, 2010 ABCA 255 at para. 28, aff’d 2011 SCC 21; Allen v Alberta (Law Enforcement Review Board), 2013 ABCA 187 at paras. 24-30). Reasonable grounds is less than proof beyond a reasonable doubt or a prima facie case (R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241 at pp. 250-251), but more than reasonable suspicion (R v Chehil, 2013 SCC 49 at para. 27). It arises at the point where “credibility-based probability replaces suspicion” (Hunter v Southam, [1984] 2 SCR 145 at p. 167).
[87] Several of the applicable case authorities, such as Golub at p. 750, state that the reasonable grounds standard must be assessed in light of not only the information actually considered by the arresting officer, but also that information “available to them” at the time of the arrest. It has also been stated that the police are expected to make such reasonable inquiries as the circumstances require (Storrey at p. 250 quoting Dumbell v Roberts, [1944] 1 All ER 326 (CA) at p. 329). To be clear, these authorities do not hold that the Crown may subsequently justify an arrest by relying upon incriminating information that was not actually considered by the officer at the time of the arrest. As McFadyen J.A. stated in R v McClelland, 1995 ABCA 199 at paras. 20-21: “Evidence which arose or came to light subsequent to the formation of the belief is not relevant in determining whether the police officer had reasonable and probable grounds for his belief at the time he formed the belief”. What these authorities do hold is that an arresting officer may not focus only upon incriminating information while ignoring exculpatory information. An arresting officer must take into account all information available to him or her, and may only disregard that information which is unreliable (Chartier v Quebec (Attorney General), [1979] 2 S.C.R. 475 at p. 499).
[91] Defence counsel relies upon R v Berube, 2015 ABQB 572, in which Shelley J. addressed a s. 8 challenge to a seizure of hospital records and hospital blood pursuant to a warrant following a motor vehicle collision involving the accused. The officer’s warrant application included evidence consistent with alcohol consumption, but little or no evidence respecting the circumstances of the accident or a driving pattern by the accused. In applying the reasonable suspicion standard as opposed to the reasonable grounds standard under the old s. 487.012(3) (R v Fedossenko, 2014 ABCA 314), Shelley J. concluded that there existed a reasonable suspicion that the accused had alcohol in his body, but no reasonable suspicion that his ability to drive had been impaired by alcohol. She then proceeded to exclude the evidence gathered pursuant to the warrant.
[92] Although every case must turn upon its own facts, I agree with defence counsel that the circumstances of Berube are broadly similar to the circumstances of the present case. In both cases, the police conduct at issue was supported by some evidence of alcohol consumption, but unsupported by evidence respecting the circumstances of the accident, or the accused’s driving pattern.
Application of legal principles
[93] Applying the reasonable grounds standard to Cst. Taylor’s arrest of the accused at 4:58 am, I find that that standard was not met. Although Cst. Taylor may have subjectively believed that he had reasonable grounds to arrest the accused, the information available to him and relied upon by him does not objectively satisfy the standard. Consequently, the arrest was not authorized by s. 495(1)(a) of the Criminal Code, and was unlawful. This being the case, the arrest constituted an arbitrary detention contrary to s. 9 of the Charter.
[94] After excising the advice said by Cst. Taylor to have been received from Ms. Reimer, the remaining information he relied upon does not give rise to reasonable grounds to believe that the accused had care and control of a motor vehicle while his ability to drive was impaired by alcohol. Cst. Taylor’s observations of the accused at the hospital while immobilized on a gurney, such as the smell of alcohol, bloodshot eyes, slurred speech, muttering, and apparent lack of focus, were at best indications that the accused had alcohol in his body. I say at best, because some of these circumstances were equally consistent with the head trauma and chest injury also considered by Cst. Taylor, combined with the effects of whatever medications might have been administered to the accused at the time.
[96] The reasonable grounds standard requires police officers to conduct investigations with reasonable diligence, and to make reasonable inquiries. Despite this, Cst. Taylor did not gather or consider any information respecting the circumstances of the collision, such as that which was readily available from Mr. Martinez and the other occupants of the white Dodge. He could have communicated with Cst. Bona or Cst. Ryan on this subject, but he did not. That information, combined with that which Cst. Taylor actually did consider, might well have satisfied the reasonable grounds standard.
[97] In conclusion, I find that when Cst. Taylor arrested the accused at the hospital at 4:58 am, he did not have reasonable grounds to believe that the accused had committed the offence of having care and control of a motor vehicle while his ability to drive was impaired by alcohol. Therefore, the arrest constituted a violation of s. 9 of the Charter.
[98] I turn next to the accused’s challenge to the two seizures of his blood at 5:35 am and 5:36 am pursuant to the statutory demand made by Cst. Taylor at 5:15 am. Among other things, the accused’s Application pleads that Cst. Taylor did not have “reasonable and probable grounds” to make a blood demand since he did not have an objectively reasonable basis to infer that the accused’s ability to operate a motor vehicle was impaired by alcohol.
[102] As just noted, the reasonable grounds standard contained in s. 495(1)(a) of the Criminal Code is substantially the same standard as that contained in the version of s. 254(3)(a)(ii) of the Criminal Code that was in force on August 25, 2018. Unsurprisingly therefore, I reach the same conclusion in the accused’s s. 8 application as I have reached in his s. 9 application.
Subsequent Warranted Seizure
[162] Applying the above principles to the present case, I have excised from my assessment of the ITO paragraph 12 respecting the information said by Cst. Taylor to have been received from Ms. Reimer. I will not repeat my previous analysis here, other than to re-emphasize that notwithstanding the general rule that the accused bears the burden of demonstrating that the ITO was insufficient on a balance of probabilities, I have shifted the burden of proof respecting the occurrence of these communications to the Crown both to ensure fairness to the accused (Shepherd, Davis) and to avoid inconsistent outcomes on the same issue because of conflicting burdens (Gerson-Foster).
[163] Given that I have also found that paragraph 12 of the ITO contains “erroneous” information, as opposed to information which is knowingly false, it may be appropriate to consider amplification. On the other hand, this is not a minor or technical error of the sort contemplated by Lebel J. in Araujo. Although I do find it appropriate to include into my consideration such basic circumstances of the collision as the dry road conditions and good visibility, I do not find that resort to amplification would justify the addition of information derived by the EPS from its own interviews of witnesses such as Mr. Martinez given that such information is unrelated to the excised information in paragraph 12, and given that Cst. Taylor could have acquired that information and included it in the ITO but failed to do so. Permitting the addition of that information at this stage would amount to allowing amplification to become a means of circumventing the prior authorization requirement.
[164] As previously concluded, and notwithstanding the different onus and standard of review applicable to a Garofoli application, I again conclude that the contents of the ITO which remain following excision do not satisfy the reasonable and probable grounds, or reasonable grounds to believe standards. Absent that information, the authorizing judge could not (and likely would not) have issued the warrant or the production order. Although the remaining information does arguably raise reasonable grounds to believe that the accused had alcohol in his body, that information does not raise reasonable grounds to believe that the accused’s ability to drive was impaired by alcohol.
[165] I therefore conclude that the seizure of the accused’s blood and hospital records violated s. 8 of the Charter.
Summary
[170] In summary, I find that the following breaches of the accused’s Charter rights have been established by the evidence.
[171] Firstly, Cst. Taylor violated the accused’s rights under s. 9 of the Charter when he arrested the accused at 4:58 am in the absence of reasonable grounds to believe that the accused had committed an indictable offence for the purposes of s. 495(1)(a) of the Criminal Code.
[172] Secondly, Cst. Taylor violated the accused’s rights under s. 8 of the Charter when he directed the drawing of the accused’s blood at 5:35 am and 5:36 am, and seized that blood pursuant to the demand made at 5:15 am which was not supported by reasonable grounds to believe that an accused had committed an impaired driving offence for the purposes of the former s. 253(3)(a)(ii) of the Criminal Code.
[173] Thirdly, Cst. Taylor violated the accused’s rights under s. 8 of the Charter when he seized the accused’s hospital blood on August 25, 2018, when he asked Ms. Richardson to retain that blood for 30 days without a warrant.
[174] Fourthly, Cst. Taylor violated the accused’s rights under s. 8 of the Charter on or shortly after September 18, 2018, when he seized the accused’s hospital blood and medical records pursuant to the warrant and the production order issued pursuant to ss. 487 and 487.014(2) of the Criminal Code which was not supported by reasonable grounds to believe that the accused had committed an offence.
[175] The remaining aspects of the accused’s Charter application are dismissed.
Charter 24(2) Analysis
[184] I have previously found that Cst. Taylor’s purported reliance upon information derived from Ms. Reimer was not an attempt to deceive the Court, and I do not find that his conduct was a knowing and deliberate violation of the accused’s rights. But his conduct also cannot meet the standard of “good faith” (Grant at para. 75). The reasonable grounds standard has existed for centuries and must have been known and understood to Cst. Taylor. Given Ms. Reimer’s and Mr. Poulin’s evidence to the effect that they did not provide Cst. Taylor with information respecting alcohol consumption or intoxication, I can only conclude that Cst. Taylor engaged in a repeated course of conduct in arresting the accused, directing two drawings of his blood, and seizing blood drawn for medical purposes, in circumstances where he knew or ought to have known that reasonable grounds were not present. This course of conduct continued into misleading a judicial officer into issuing both a warrant and a production order.
[191] Applying the principles in Stillman and Grant, I find that two drawings of the accused’s blood with a hypodermic needle for a non-medical purpose at the direction and under the supervision of a police officer to be towards the more intrusive end of the spectrum. With respect to the hospital blood, although it had previously been drawn for medical purposes, its warrantless seizure (first without a warrant and then pursuant to an invalid warrant) implicated the accused’s personal autonomy and bodily integrity.
[192] With respect to the medical records seized pursuant to an invalid production order, I also find this seizure to have had a serious impact upon the accused’s Charter protected interests. It is a significant collection of documentation, and contains much personal medical information which goes to the accused’s “biographical core”.
[197] On balance, I find that an application of the Grant criteria favours exclusion of the evidence that was gathered in a manner that violated the accused’s Charter rights. In other words, I find that the admission of the evidence in these proceedings would bring the administration of justice into disrepute for the purposes of s. 24(2) of the Charter.
[198] As to the specific evidence that is to be excluded, the Crown does not, of course, intend to lead the blood itself as evidence. Instead, it intends to rely upon the Certificates of a Qualified Technician and the Certificates of an Analyst respecting the analysis of that blood. The Crown would also presumably seek to rely upon the contents of the medical records seized pursuant to the production order. Given that those certificates and medical records have been acquired as a direct result of the Charter violations I have found, they shall be excluded from the evidence pursuant to s. 24(2) of the Charter.
[199] Since the I have not found that the accused’s statement of October 15, 2018, was obtained in a manner which violates the Charter there will be no order excluding that statement pursuant to s. 24(2).
Conclusion
[207] In summary, I grant the accused’s application in part, and find that the accused’s rights under ss. 8 and 9 of the Charter were violated when he was arrested, when his blood was drawn pursuant to a blood demand, when Cst. Taylor asked the hospital to retain his blood for 30 days, when his blood was seized pursuant to a warrant, and when his medical records were seized pursuant to a production order. The accused’s application for a stay of proceedings is denied. The accused’s request to exclude the certificates respecting the analysis of his blood and his medical records is granted. The accused’s request to exclude his statement of October 15, 2018, is denied.
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