This week’s top three summaries: R v SS, 2023 ONCA 130: s.8 REP in #ambulance, R v Metzger, 2023 SCC 5: #circumstantial ID, and R v Brar, 2023 ABCA 63: #circumstantial possession.
This week’s top case is an impaired driving decision. For great general reference on the law of impaired driving, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Impaired Driving and Other Criminal Code Driving Offences, 2nd Edition
R v SS, 2023 ONCA 130
[February 27, 2023] Charter s.8 – Reasonable Expectation of Privacy in Paramedic Questioning – Impaired Driving [Reasons by David Paciocco J.A. with S.E. Pepall and L. Favreau JJ.A concurring]
AUTHOR’S NOTE: Serious impaired driving incidents often leave accused persons going to the hospital. This means that police investigation of the most useful source of evidence (the accused) has to take a back seat to their medical injuries being dealt with. Since they are at the very least a person of interest during the transport, police officers inevitably literally take a back seat in their ambulance and take notes (or record videos) while the accused has private conversations with a medical practitioner for the purpose of obtaining medical assistance. You would think this type of conduct should receive some bright line rules so it’s not up to individual litigants to sort things out each time it happens. However, you’d be wrong. The balancing act is set out in the below decision with a helpful determination for the defence.
I. OVERVIEW
[1] On November 4, 2019, S.S., the 17-year-old respondent was found trapped and unconscious in the driver’s seat of a motor vehicle that had left the road before coming to rest in a ditch. The passenger-side of the vehicle was damaged extensively. Tragically, the front seat passenger, J.S., also a 17-year-old youth, died at the scene as a result of the accident.
[2] S.S. was charged as a young person with two criminal charges for causing J.S.’s death, both particularized as arising from S.S.’s alleged impaired driving. Count 1 alleged that S.S. committed criminal negligence in causing J.S.’s death, “to wit: [by] operating a motor vehicle while impaired”, contrary to s. 220(b) of the Criminal Code, R.S.C., 1985, c. C-46. Count 2 alleged that S.S. committed the offence of impaired operation of a conveyance, causing J.S.’s death, contrary to s. 320.14(3) of the Criminal Code.
[3] S.S.’s trial was conducted as a blended voir dire, in which S.S.’s application for the exclusion of evidence as the result of alleged Charter violations was conducted within the trial. (For convenience, I will refer to this blended hearing as the “trial”.) S.S. was acquitted at trial on both charges after the trial judge found section 8 Charter violations and excluded evidence that the Crown was relying on to prove that S.S was impaired by alcohol at the time of the accident.
[4] The Crown appeals the acquittals,…
…I would dismiss the appeal.
[5] There were no eyewitnesses to the accident, which occurred shortly before 11:15 p.m. on a dark, wet stretch of a two-lane, semi-rural roadway with a posted speed limit of 70 km/hr. The trial judge found that prior to coming to rest, S.S. applied the brakes and the vehicle momentarily skidded for approximately 37 metres before leaving the roadway on the opposite side of the oncoming lane, sliding on grass, and then coming to rest in a ditch….
[6] There was no direct evidence presented as to S.S.’s manner of driving prior to the accident. Nor did the Crown present expert evidence to establish the speed the vehicle had been travelling at the time of the accident….
[7] P.C. Sagl was the first officer at the scene, arriving at 11:23 p.m….
…P.C. Sagl located a backpack. She testified that it was near the vehicle and contained a bottle of alcohol with a lid on it. She then identified the backpack from a photograph that appeared to show the backpack not near the vehicle as she had testified but on the shoulder area of the roadway. Sgt. Byford, who had arrived on scene minutes after P.C. Sagl, testified that he had observed the backpack on the roadway.
[8] After being removed from the vehicle, S.S. was placed in the back of an ambulance. S.S. was immobilized and was wearing a neck brace. At 11:50 p.m., on Sgt. Byford’s instructions, P.C. Sagl got into the back of the ambulance for the purpose of investigating whether S.S. was impaired.
[9] …She sat in the back of the ambulance closer to the driver’s cab and did not identify herself to S.S. or announce her presence. The two paramedics who were also in the back of the ambulance were in uniform.
[10] Ms. Lemcke was one of the paramedics…
…she had little recall of the relevant events….
…Ms. Lemcke testified that she asked S.S. questions for the purpose of assessing S.S.’s medical condition. In response to those questions S.S. made statements about the speed the vehicle was travelling and his alcohol consumption. The evidence presented at the trial about the content of those statements had generic similarities but some differences in detail. The Ambulance Call Report that Ms. Lemcke prepared recorded non-verbatim responses, including that S.S. reported the “vehicle [was] travelling 120 km/hr”, and that S.S. “initially stated he had drank ‘a lot’ enroute and then stated it was 4 drinks at a house but unable to recall (beer vs liquor)”. The Ambulance Call Report also recorded that there was no obvious smell of alcohol present. P.C. Sagl’s recollection of the statements S.S. made differed somewhat from the Ambulance Call Report. P.C. Sagl testified that she overheard S.S. telling the paramedics that “he had been drinking and was travelling approximately 100 to 120 kilometres an hour” and that “he had approximately four drinks.”
[11] At 12:00 a.m., P.C. Sagl arrested S.S. and read S.S. the caution and advised S.S. of the right to counsel. She also gave S.S. a breath demand and then a blood sample demand. She testified that the ambulance arrived at the hospital at 12:12 a.m. Shortly after, blood samples were taken for medical purposes.
[12] In her discussions with medical staff, P.C. Sagl learned that S.S. was a youth, something she had not previously been aware of, and at 1:25 a.m. she provided S.S. the youth caution and right to counsel. Then she questioned S.S. about the other occupant of the vehicle. Approximately one hour later she called duty counsel on S.S.’s behalf, and between 2:50 a.m. and 3:06 a.m., S.S. spoke to duty counsel.2
[13] In the meantime, P.C. Alszegi, a qualified breath technician who had been dispatched to the hospital arrived at 12:46 a.m. and began to ready the approved instrument in order to receive samples of S.S.’s breath for analysis. He testified that at 3:02 a.m. he spoke to P.C. Sagl and “received grounds from her which include all the necessary information [for him] to continue her investigation and conduct the breath test…” He testified “my grounds were complete with Constable Sagl at 3:22 a.m.”
[14] In addition to the information that he received from P.C. Sagl, P.C. Alszegi made observations of his own which contributed to his grounds. In particular, P.C. Alszegi said that he detected a light odour of alcohol from S.S.’s breath, observed bloodshot eyes, and found S.S. to be in a “confused”, “indifferent” and “sleepy” state, speaking in a “low tone, very quiet”.
[15] At 3:46 a.m., P.C. Alszegi took custody of S.S., and at 3:52 a.m. he read S.S. a breath demand. At 3:58 a.m. and 4:23 a.m., S.S. provided P.C. Alszegi with two samples of his breath. Both breath readings showed blood alcohol levels below the legal limit of 80 milligrams of alcohol in 100 millilitres of blood, but because of the delay in securing the samples the readings could not be relied upon, without expert evidence, as proof of S.S.’s blood alcohol content at the time of driving.
[16] On November 6, 2019, D.C. Davis applied for and obtained a search warrant for the medical blood samples that had been secured from S.S. at the hospital, as well as a production order for the medical records. He executed the search warrant and the production order the next day and furnished the blood samples and the hospital records to the Centre for Forensic Sciences with a view to obtaining an expert report relating to S.S.’s blood alcohol concentration at the time of the accident.
[18] She granted leave to S.S.’s counsel to cross-examine D.C. Davis on the ITOs….
…The trial judge found that D.C. Davis also “took some liberties” in the Background section relating to his own conclusions relevant to the speed of the vehicle and the force with which it struck two trees, and he swore that, “There was a backpack containing an open container of alcohol located in close proximity to the vehicle.” He swore this latter assertion to be true even though he could not say where the backpack was actually located based on the photographs he relied upon, nor did he have support for his claim that the container of alcohol was open. He also failed to mention things that may have suggested an alternative explanation for the accident, namely, the road, weather, and lighting conditions.
[20] P.C. Sagl testified as a key witness. The trial judge did not find her to be credible after concluding that P.C. Sagl had provided four different versions of her grounds for making the breath demand: (1) when testifying in chief; (2) when she was cross-examined; (3) when describing her grounds to P.C. Cutler, the Officer in Charge of the investigation, during a phone call from the hospital; and (4) when describing her grounds to P.C. Alszegi. The trial judge found that these inconsistencies “severely damaged” her credibility.
[21] More specifically, the trial judge did not believe P.C. Sagl’s testimony that she subjectively believed that she had grounds to make the breath demand, a point I will develop below. Indeed, the trial judge found that P.C. Sagl “knowingly provided misleading and untrue grounds to P.C. Alszegi, while also knowing that he was the qualified breath technician, who could be expected to act on these grounds and conduct a warrantless search by having S.S. provide a breath sample.” She based this finding, in part, on her conclusion that P.C. Sagl provided P.C. Alszegi with a significantly different account of her grounds than she provided in court, including by altering the timing of when she said she smelled alcohol on S.S.’s breath, from during S.S.’s arrest to before his arrest, and by falsely adding slurred speech, a common indicium of impairment.
[22] In her Charter ruling the trial judge made the following relevant holdings:
- S.S. had a reasonable expectation of privacy during the medical assessment by Ms. Lemcke in the ambulance, and it was contrary to s. 8 of the Charter for P.C. Sagl to “search and seize” S.S.’s communications “made as part of a medical assessment”, and “observations of S.S. during the same medical assessment” (emphasis in original).
- P.C. Sagl did not have grounds to make a breath demand pursuant to s. 320.28(1) of the Criminal Code because her claim to subjectively believing that she had reasonable and probable grounds is not credible, therefore the search and seizure of S.S.’s breath contravened s. 8 of the Charter.
- P.C. Alszegi’s breath demand is not a “fresh start”. The “intentionally misleading” information that P.C. Sagl provided to P.C. Alszegi is excised from his grounds, and his own observations do not provide objectively reasonable and probable grounds for the search and seizure of S.S.’s breath samples.
- The search warrant and production order are quashed. Misleading evidence in the ITOs and information that was obtained in violation of the Charter is excised from the ITO, and the information that remains is insufficient to provide reasonable and probable grounds for these orders.
[23] The trial judge went on to find that even if she had not excluded the hospital records pursuant to s. 24(2), the Crown failed to establish the admissibility of those records because it failed to lead evidence to demonstrate their admissibility pursuant to a hearsay exception.
[24] After making the passing observation that no evidence had been presented as to where the Ambulance Call Report document came from, she exercised her residual discretion to exclude the otherwise admissible utterances in the Ambulance Call Report. The Crown has not challenged that decision.
A. DID THE TRIAL JUDGE ERR IN FINDING THAT P.C. SAGL’S OBSERVATIONS IN THE AMBULANCE VIOLATED SECTION 8 BECAUSE THERE WAS NO REASONABLE EXPECTATION OF PRIVACY?
…The trial judge held that S.S. had a reasonable expectation of privacy while being medically examined in the back of the ambulance….
[30] The Crown does not take issue before us with the trial judge’s characterization of the interception by P.C. Sagl of private communications between S.S. and Ms. Lemcke as a search or seizure. This characterization is in keeping with recognition by Watt J.A. that “the interception of private communications constitutes a search or seizure”: R. v. Doroslovac, 2012 ONCA 680, 112 O.R. (3d) 696, leave to appeal refused, [2013] S.C.C.A. No. 35126, at para. 29, citing R. v. Duarte, [1990] 1 S.C.R. 30.
[31] The Crown argues instead that the trial judge erred in finding that S.S. had a reasonable expectation of privacy by: (1) failing to consider or follow this court’s “binding” precedent of LaChappelle which the Crown submitted holds that “no reasonable expectation of privacy exists in innocuous information shared in an ambulance and observed by a police officer”; and (2) finding an expectation of privacy by S.S. in the ambulance at the material time that was not proved and would not be reasonable, in the circumstances of this case.
[32] For the following reasons I would not give effect to these grounds of appeal. I will begin by elaborating on the trial judge’s reasoning.
[33] As I have described, S.S., who was injured in the accident, was placed in the back of an ambulance after being extricated from the damaged vehicle. Ms. Lemcke then conducted a medical examination in the back of the ambulance. The trial judge characterized Ms. Lemcke and S.S. as being in a medical practitioner- patient relationship at that time. The trial judge concluded that the verbal exchange between S.S. and the paramedic during that medical assessment was part of this overall medical assessment, a finding consistent with the testimony of Ms. Lemcke that the questions she asked were for the purpose of assessing S.S.’s condition. The trial judge also found that S.S. did not know that P.C. Sagl was present during S.S.’s medical examination in the ambulance and S.S. was not under police detention.
[34] Based on these factual findings, the trial judge held that in all of the circumstances S.S. had a reasonable expectation of privacy during that medical examination such that s. 8 of the Charter was violated when P.C. Sagl searched and seized the communications exchanged while that medical examination was underway.
[36] As indicated, I would not give effect to the Crown’s argument that LaChappelle is binding authority that there is no reasonable expectation of privacy in the circumstances of this case. LaChappelle does not establish a Charter-free zone in the back of ambulances. As the Crown conceded during oral argument, the determination of whether a reasonable expectation of privacy exists requires a case-specific, contextual analysis. That is how Rosenberg J.A. resolved the “reasonable expectation of privacy” issue in LaChappelle. At para. 34, he quoted Sopinka J. in R. v. Plant, [1993] 3 S.C.R. 281 at p. 293, relating to the kinds of factors to consider:
Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained, and the seriousness of the crime being investigated, allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement. It is, then, necessary to apply this contextual approach to the facts of the case at bar.
[37] After quoting this passage, Rosenberg J.A. engaged in a case-specific evaluation of the “Plant factors” before upholding the trial judge’s decision in LaChappelle. In finding that LaChappelle did not have a reasonable expectation of privacy in the circumstances of that case, he relied upon the police officer’s “non- intrusive presence [in the ambulance during the investigation of a serious offence] with the consent of the ambulance personnel”, as well as the officer’s observation of a “kind of information that was not of a highly confidential nature” – namely, the fact that Mr. LaChappelle responded with one-word answers and gestures: LaChappelle, at paras. 36-38.
[38] Therefore, LaChappelle is not binding authority on whether S.S. had a reasonable expectation of privacy. It is a case that turned on its own facts. The trial judge clearly understood this. Although she did not expressly address the Crown’s arguments to the contrary, she correctly concluded that the issue of S.S.’s reasonable expectation of privacy should be determined based on the specific circumstances before her.
[40] Naturally, S.S. did not claim any personal right in the seized information, nor did S.S. advance any territorial privacy claim. At its heart, S.S. was making an informational privacy claim relating to the communications exchanged during the medical examination. An “information privacy” claim is made where an individual asserts the right “to determine for themselves when, how, and to what extent information about them is communicated to others”: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 23; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para 66. In R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, Deschamps J. explained that “the appropriate question [where an informational right of privacy is being claimed] is whether the information is the sort that society accepts should remain out of the state’s hands because of what it reveals about the person involved, the reasons why it was collected, and the circumstances in which it was intended to be used.” It is helpful to begin with the latter two considerations – the reasons why the information was collected, and the circumstances in which it was intended to be used – before considering the impact of what the information revealed about S.S.
[41] In terms of the “reasons why [the information] was collected”, the trial judge concluded that this occurred as part of a medical examination being conducted to ensure S.S.’s health. This finding was supported by the evidence. The expectation of privacy in information exchanged for medical treatment is significant given that the patient “is forced to reveal information of a most intimate character to … protect his life or health”: R. v. Dyment, [1988] 2 S.C.R. 417, at p. 433. In this case, S.S., a young person, just having been injured in a car accident, answered questions posed by a paramedic for the purpose of securing required medical attention, thereby creating communicated information that S.S. may well not otherwise have provided.
[42] The Crown argues that any reasonable expectation of privacy in information exchanged in ambulances for health care purposes is diminished because of the combined effect of disclosure exceptions in provincial privacy legislation,3 that together permit a health information custodian within a municipal service to disclose information to a Canadian law enforcement agency to aid in an investigation….
[43] I need not comment on the Crown’s interpretation of the legislation to reject this submission. Even if it can be said that the disclosure exception the Crown relies upon diminishes, in some measure, the relevant expectations of privacy, it does not do so materially. The legislation relied upon by the Crown applies solely to municipalities. Surely the reasonableness of S.S.’s expectation of privacy does not turn on whether the ambulance that attended happened to be municipally owned.
[44] More importantly, there are general problems with the Crown’s submission. In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 73, Cromwell J. recognized that the purpose of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5, a privacy statute, is to increase the protection of personal information, a proposition equally true of the statutes relied upon by the Crown in this case. It would defeat the operation of such statutes if law enforcement disclosure provisions were treated as equivalent to powers of search or seizure: Spencer, at paras. 71, 73. Yet that would be the effect of treating the law enforcement disclosure provision as defeating S.S.’s reasonable expectation of privacy, thereby permitting a search or seizure that may otherwise be unlawful.
[45] In order to prevent disclosure exceptions in privacy legislation from playing this kind of role, this court has cautioned that disclosure exceptions are not to be interpreted in a way that makes privacy legislation “‘virtually meaningless’ in the context of an ongoing police investigation”, nor should disclosure exceptions be taken as defeating the reasonable expectations of privacy recognized in the legislation as a whole: R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 103, 111. After all, disclosure exceptions exist not to deny privacy interests, but to protect persons who disclose private health care information pursuant to those exceptions from being prosecuted for breach of the statute.4
[46] Moreover, even if the existence of a disclosure exception can be said, in some measure, to diminish an expectation of privacy, “a reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 9.
[47] I am therefore satisfied that the disclosure exemption that the Crown claims does not play a significant role in determining whether S.S. had a reasonable expectation of privacy. In my view, the trial judge was correct when assessing S.S.’s reasonable expectation of privacy in giving the weight that she did to the fact that the information seized by P.C. Sagl was provided as part of a medical examination being conducted to ensure S.S.’s health.
[48] With respect to the third Gomboc factor for consideration in assessing a reasonable expectation of informational privacy – “the circumstances in which [the information] was intended to be used” – the trial judge found that the information in question was intended to be used for the purpose of S.S.’s care. In this context, the trial judge’s finding, again supported by the evidence, that S.S. would not have known that P.C. Sagl was in the ambulance, takes on significance. S.S. had no reason to believe that the answers shared with the paramedic for health purposes were being captured by a police officer as part of a criminal investigation.
[49] This brings us to the remaining Gomboc consideration – what the information reveals about the person involved. I accept the Crown’s submission that information from S.S. about S.S.’s alcohol consumption and speed of driving does not relate to S.S.’s private medical conditions. I am also prepared to assume, for the sake of analysis, that such information is not core biographical information relating to S.S.’s life choices.5 But that does not, in all of the circumstances, work against the trial judge’s finding that S.S. had a reasonable expectation of privacy. The information that S.S. shared was self-incriminatory, and individuals are entitled to make a meaningful and informed choice whether to share self-incriminating information with the police or exercise their right to silence: R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 23, 31; R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 97. The fact that SS. shared self-incriminatory information during a medical examination for medical purposes, not knowing that a police officer was present, underscores the importance of privacy in the circumstances of this case. In my view, the trial judge was correct in observing that S.S. lacked the knowledge required to choose whether to exercise the right to silence that would have operated had P.C. Sagl identified herself to S.S.
[50] I recognize that there are similarities between this case and LaChappelle, most notably that in both cases ambulance attendants consented to the presence of the police officers, and that the presence of the police officers was unobtrusive. I am nonetheless persuaded that the factors I have just identified not only distinguish this case from LaChappelle, but also provide a firm basis for the trial judge’s reasonable expectation of privacy finding. I see no palpable and overriding errors in the factual findings relied upon by the trial judge to find a reasonable expectation of privacy in the information seized, nor am I persuaded that her conclusion is incorrect.
[51] I would reject the Crown’s appeal of the trial judge’s finding that the seizure of this information by P.C. Sagl breached S.S.’s Charter rights.
B. DID THE TRIAL JUDGE ERR IN FINDING THAT P.C. SAGL’S BREATH DEMAND CONSTITUTED A SECTION 8 VIOLATION?
[54] The assertion that S.S. provided the breath samples pursuant to P.C. Alszegi’s breath demand and not P.C. Sagl’s breath demand reflects a mischaracterization of the legal nature of a breath demand. In R. v. Townsend, 2007 ONCA 332, 46 M.V.R. (5th) 159, at para. 1, this court affirmed that a Criminal Code breath demand imposes “a continuing demand that [remains] in force until complied with”. When S.S. provided the samples to P.C. Alszegi, S.S. was therefore satisfying the ongoing legal obligation that P.C. Sagl’s breath demand imposed.
[56] Finally, in the circumstances of this case, the attempt to treat P.C. Sagl’s demand as irrelevant because of P.C. Alszegi’s subsequent demand is artificial, as the two demands were inextricably linked. P.C. Sagl’s demand and the associated arrest provided the legal mechanism that brought S.S. before P.C. Alszegi, who derived the grounds for his demand in material part from what P.C. Sagl told him about her grounds. I agree with the trial judge that it is not possible to insulate P.C. Sagl’s demand from Charter review because a second demand preceded the provision of the samples.
[57] I therefore reject the Crown’s first premise, that P.C. Sagl’s breath demand did not result in the samples that were provided. It clearly did.
[58] Although this alone is enough to dismiss the Crown’s argument that no search occurred, I also reject the Crown’s second premise for this argument – that a breath demand is a search only if it produces breath samples. If a search within the meaning of s. 8 of the Charter does not occur until evidence has been obtained, the distinction between a search and a seizure would disappear and s. 8 would offer no protection in the case of an unsuccessful search, such as a strip search or the search of a person’s home that yields no evidence.
[59] As I described above, whether investigative state conduct is a “search” within the meaning of the Charter depends on whether the state examination intrudes upon a reasonable expectation of privacy. In my view, where a legally enforceable demand for breath samples has been made pursuant to s. 320.28(1) of the Criminal Code compelling a subject to yield a sample of their breath, a state examination process that intrudes upon a reasonable expectation of privacy has been triggered and a search is underway.
[60] I therefore reject the Crown’s submission that P.C. Sagl’s breath demand cannot form the basis for a s. 8 Charter violation.
[64] I see no basis for interfering with the trial judge’s finding that the demand that P.C. Sagl made pursuant to s. 320.28(1) was unlawful, and therefore unconstitutional. I would dismiss this ground of appeal.
C. DID THE TRIAL JUDGE ERR IN FINDING THAT THE BREATH TECH, P.C. ALSZEGI’S BREATH DEMAND WAS INVALID?
[65] The Crown argues that even if P.C. Sagl did not have reasonable and probable grounds for the demand she made, P.C. Alszegi had reasonable and probable grounds for his demand, and the trial judge erred in finding otherwise.
[66] As I will explain, the Crown may be correct about this, but the exclusion of the breath demand provided to P.C. Alszegi from evidence does not depend on the finding that P.C. Alszegi lacked reasonable and probable grounds for the search….
[67] I will begin with whether the trial judge erred in finding that P.C. Alszegi lacked reasonable and probable grounds. In that regard, the trial judge accepted that P.C. Alszegi subjectively believed that he had grounds. She found, however, that in the “unique circumstances” of this case, the information he received from P.C. Sagl had to be excised from consideration because P.C. Sagl had deliberately misled P.C. Alszegi about her grounds, knowing that P.C. Alszegi would rely upon what she told him in determining whether he had grounds….
[68] …the Crown argues that the trial judge erred in assessing the sufficiency of P.C. Alszegi’s grounds by excising from consideration the information that P.C. Sagl had shared with him….
[70] On the other hand, I find the trial judge’s reasoning to be compelling. If the authority the Crown relies upon were to apply even where one police officer has intentionally misled another as to the grounds for a search or an arrest, it would be possible for a police officer who has no grounds (the “informant officer”) to provide another officer with reasonable and probable grounds simply by lying convincingly to that officer about their grounds.
[71] Although there is language in some of the cases suggesting that the rule relied upon by the Crown applies even where an informant officer has misled the officer whose grounds are at issue, that language is obiter and none of the cases relied upon by the Crown involve findings that the informant officer intentionally misled the officer, knowing that doing so would lead to a search. I also note that in R. v. Williams, 2022 ONCA 596, at para. 18, when applying the principles relied upon by the Crown, this court commented that there was “no suggestion” that the failure by an informant officer to communicate information that qualified the grounds for arrest “was anything other than a miscommunication”. The intimation, of course, is that the result in Williams may have been different had the informant officer intentionally misled the other officer about their grounds, as the trial judge found occurred in the “unique circumstances” of this case.
[72] Ultimately, in order to resolve this appeal, I do not have to determine whether one officer can base reasonable grounds on the intentionally misleading information provided by an informant officer, because in this case the trial judge gave an alternative basis for excluding the breath samples. She reasoned that, even if P.C. Alszegi had reasonable grounds, the demand provided by P.C. Alszegi was “part of [a] continuing s. 8 breach by P.C. Sagl”, and not a “fresh start”, and that the breath samples that he received from S.S. would have to be excluded in any event because of P.C. Sagl’s breach.
[73] I would not interfere with this finding. I have already explained why I would find that P.C. Sagl’s unconstitutional demand continued to be operative when S.S. provided the breath samples. Even though the breath samples were ultimately provided to P.C. Alszegi, subject to consideration of the “fresh start” doctrine described in R. v. Beaver, 2022 SCC 54, [2022] S.C.J. No. 54, at para. 97, the breath samples were “obtained in a manner” that violated the Charter because of P.C. Sagl’s breach.
[74] In my view, the trial judge was correct in finding that in this case the fresh start doctrine does not apply to sever the required “obtained in a manner” connection. The fresh start doctrine holds that “evidence will not be ‘obtained in a manner’ that breached the Charter when the police made a ‘fresh start’ from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous.” In this case, the breath samples are tightly linked to P.C. Sagl’s Charter breach, despite the demand made by P.C. Alszegi. As the trial judge found, his demand was “part of [a] continuing s. 8 breach by P.C. Sagl”. There is ample support for that finding. First, P.C. Sagl’s unconstitutional demand provided the legal basis for arranging for P.C. Alszegi to take a breath sample, in the first place. Moreover, P.C. Alszegi relied on P.C. Sagl’s unconstitutional demand in making his own demand. Indeed, on the trial judge’s findings, P.C. Sagl intentionally caused P.C. Alszegi to conduct a search by misleading him as to the grounds for doing so. There is no room in these circumstances for the application of the fresh start doctrine.
[75] In these circumstances the trial judge was entitled to consider whether the breath samples should be excluded because of P.C. Sagl’s Charter breach, even if P.C. Alszegi had grounds for his demand. And as I will explain below, I see no material errors in the trial judge’s s. 24(2) analysis which resulted in the exclusion of the breath samples.
[76] As a result, even if the trial judge did err in finding that P.C. Alszegi did not have reasonable and probable grounds for the demand he made, this error would not affect the outcome of this appeal.
D. DID THE TRIAL JUDGE ERR IN FINDING THAT THE SEARCH WARRANT AND PRODUCTION ORDER COULD NOT HAVE ISSUED?
[77] …Insofar as the production order is concerned, this ground of appeal is moot. The trial judge ruled that, independently of Charter exclusion, the evidence obtained by the production order, namely hospital records, was inadmissible because the Crown failed to lead evidence to demonstrate their admissibility pursuant to a hearsay exception.
[78] But even leaving this aside, the ITO used to obtain the production order was materially indistinguishable from the ITO used to secure the search warrant. I can find no error in the trial judge’s decision that the search warrant ITO, and by implication the production order ITO, failed to disclose reasonable and probable grounds.
[79] The Crown submits that the trial judge erred in her evaluation of reasonable and probable grounds by excising the breath sample results and the observations made by P.C. Sagl in the ambulance from the ITOs. I disagree….
[80] …The trial judge was correct to quash the search warrant and the production order.
[92] In the circumstances I would not interfere with the trial judge’s decision to exclude the evidence she did, nor would I come to a different conclusion, even on full reconsideration.
CONCLUSION
[93] I would dismiss the appeal.
R v Metzger, 2023 SCC 5
[March 3, 2023] Circumstantial Evidence of Identification [Majority Reasons by Rowe J. with Martin and Kasirer JJ. concurring – Dissent: Côté and O’Bonsawin J.J.]
AUTHOR’S NOTE: The test for circumstantial evidence of identification should be rather unforgiving. This case is one of two summarized this week in which the ABCA gets circumstantial evidence right and wrong. Evidently, the intricacies of applying to test to facts in a case can frustrate even the highest courts. Here, the Crown attempted to prove ID of a home invasion perpetrator through DNA found on a cigarette butt in a vehicle of one the victims and the testimony of a victim who may have heard the name Metzger spoken during the robbery (although this recollection only came up at trial).
[1] The appellant, Shawn Metzger, appeals as of right from a decision of the Court of Appeal of Alberta dismissing his appeal from convictions by a judge sitting alone for a number of offences arising from a home invasion robbery: 2022 ABCA 16. Identity was the sole issue at trial. Neither of the two victims of the robbery clearly saw the perpetrators, who numbered three or four, as the perpetrators were masked. The Crown’s case to identify the appellant as a participant in the robbery relied entirely on two pieces of circumstantial evidence: (1) the appellant’s DNA found on a cigarette butt in the vehicle of one of the victims, Mr. Iten, which was stolen from the scene and found abandoned approximately 11 hours after the robbery; and (2) the testimony of Mr. Iten that he may have heard the name “Metzger” spoken by one of the intruders during the robbery. On this evidence, the trial judge was satisfied beyond a reasonable doubt that the appellant participated in the robbery. A majority of the Court of Appeal dismissed the appellant’s conviction appeal. Veldhuis J.A., dissenting, would have allowed the appeal and substituted acquittals on the basis that the verdicts of guilt were unreasonable.
[2] …Even accounting for the privileged position of the trial judge, I am satisfied that the guilty verdicts cannot be supported by the evidence: R. v. Brunelle, 2022 SCC 5, at para. 7.
[3] The trial judge acknowledged that the DNA evidence, standing alone, would not be sufficient to establish guilt beyond a reasonable doubt. I agree with that conclusion. The DNA evidence at best permitted an inference that the appellant was in the vehicle at some point in time prior to its recovery by the police. There was no evidence indicating when and why the appellant may have been in the vehicle, which was unaccounted for during the 11 hours between the robbery and its recovery. Mr. Iten also routinely left the keys in the vehicle prior to the robbery. As the dissenting judge of the Court of Appeal noted, there were also pieces of clothing and other items in the vehicle that the forensic identification officer acknowledged were not sent for DNA analysis. In these circumstances, the DNA evidence alone could not have established a case to meet against the appellant with respect to participation in the robbery.
[4] The other piece of circumstantial evidence that supported the DNA evidence was Mr. Iten’s testimony that he had heard the name “Metzger” during the robbery. However, that evidence was fraught with frailties. Mr. Iten was struck on the head with a baseball bat at the outset of the robbery and was fading in and out of consciousness. In his testimony, he actively questioned his own recollection of what he had heard. He did not mention to the police during his initial interviews that he had overheard the name “Metzger”; rather, an investigating officer first mentioned the name to Mr. Iten during a telephone interview, months or possibly years after the robbery. When asked at trial whether he recalled hearing the name before that telephone interview, Mr. Iten said that he did; he indicated this was based on discussions that he had after the robbery with the second victim, Mr. Rivard, who Mr. Iten believed shared the same recollection. However, this was not corroborated by Mr. Rivard in his testimony. Mr. Iten also contemplated that his recollection of hearing the name may have been a false memory due to childhood trauma arising from personal associations with the German word “metzger”, meaning “butcher”, which is Mr. Iten’s lifetime vocation.
[5] Although no issue is raised with respect to Mr. Iten’s honesty, in my view, this is one of the rare instances where the trial judge’s acceptance of the reliability of Mr. Iten’s evidence cannot be supported on any reasonable view of the evidence: R. v. Burke, [1996] 1 S.C.R. 474, at para. 7; Brunelle, at para. 8. The trial judge wrongly concluded that “[n]othing turns” on the inconsistency between Mr.Iten’s and Mr. Rivard’s evidence because they were in different rooms and may have heard different things; the trial judge misapprehended the fact that Mr. Iten testified they had the same recollection.
[6] Considering the totality of the evidence — including the frailties in Mr. Iten’s evidence and the absence of any other inculpatory evidence except for the presence of the appellant’s DNA on the cigarette butt — I am satisfied that no “trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. The verdicts were therefore unreasonable.
[9] I would allow the appeal, set aside the convictions, and substitute verdicts of acquittal.
R v Brar, 2023 ABCA 63
[February 27, 2023] Circumstantial Evidence of Possession of a Firearm [Martin, Schutz, and Strekaf JJ.A.]
AUTHOR’S NOTE: Here circumstantial evidence combined with the law of possession. After a shooting a man was pulled out from under a deck. A gun was found in a pail underneath the same deck. The question was whether he was in possession of the gun. However, the evidence of that possession was circumstantial. Was there a rational reason why someone would be found underneath a deck with a gun in their vicinity if it wasn’t theirs? There is a second issue about police violence in this case, but that is perhaps better left for commentary on another day.
The Court:
[1] On March 17th, 2017, the appellant was at a gunfight in Calgary. When the shooting started, he fled and hid under the deck of a nearby house. Forty minutes later, he was pulled from his hiding place by a police dog and arrested. A loaded handgun was found where he had been hiding.
[2] The appellant was charged with numerous offences related to the possession of that handgun. Following a trial by judge alone, he was convicted as charged. He appeals arguing the convictions are based on a misunderstanding of the law and further that the trial judge erred in finding the police acted reasonably when they beat him upon arrest.
Background
[3] At approximately 5:30 PM on March 17th, 2017, a confrontation occurred between two groups of young men at a park in a residential area of northeast Calgary. Calgary police responded en masse, with uniformed officers, two tactical units, a K-9 unit, and a police helicopter. By the time they arrived the combatants had scattered, some in a vehicle, others on foot, discarding clothing, ammunition and drugs as they fled.
[4] At 6:12 PM, officers in the helicopter advised their colleagues on the ground of a suspicious person by an address referred to as #7 Saddlecrest. Members of the TAC team responded. They observed a deck partially surrounding the back of the house. The deck was clad with wood covered by lattice with an opening large enough for a person to crawl through. An officer shone his flashlight through the opening but could not see anyone. He called for K-9…
[5] When K-9 arrived, the handler placed the dog at the opening and gave a hand signal for him to go in and search. Just at that time the officers heard the appellant say, “All right, I’m coming out now”, or words to that effect.
[6] Almost immediately, the appellant screamed in pain as the dog bit his leg and began pulling him out, as he had been trained to do. As this was happening, the police instructed the appellant to come out with the dog. The events that followed were video recorded by the police helicopter hovering overhead.
[7] The dog emerged from the opening with the appellant firmly in tow. The appellant was pulled out on his stomach with his hands above his head. One of the officers then knelt either on or beside the appellant’s right shoulder, reaching to secure his right hand. Another officer stood above the appellant with a rifle pointed at, or pressed against, the appellant’s back. The K-9 officer moved behind the police dog, who was still clamped on the appellant’s leg and shaking him. The fourth officer, Constable Wilkinson, on the appellant’s left side, repeatedly punched him in the face.
[8] After the appellant was handcuffed, he was searched and found to be unarmed. One of the officers then entered the opening under the deck and found a white pail with a loaded handgun wrapped in a sock in the area where the appellant had been hiding. As a result, the appellant was charged with several offences related to the possession of that loaded handgun.
[9] The trial began with a voir dire to determine whether the assault of the appellant violated his section 7 Charter rights, and if so, whether the charges should be stayed. Ultimately, the trial judge found that the appellant’s section 7 rights had not been violated as the assault was justified pursuant to section 25 of the Criminal Code.
[10] …The appellant then testified. He explained that he was working as an apprentice electrician in another neighbourhood when his supervisor, a man named Dhillon, received a phone call advising that there was to be a fight at the park. Both men then left their workplace in Dhillon’s vehicle to watch the fight. The appellant explained that on arrival he noted a group of men standing in the park and that shortly thereafter a white Honda motor vehicle pulled up and stopped abruptly. He said that four or five men emerged from that vehicle, confronted the other group, and exchanged gunfire.
[11] The appellant said he immediately fled on foot, as Dhillon had driven off without him. He explained he jumped over fences and ran through neighbourhood yards until, after jumping over the fourth fence, he found an opening under a deck. He said he went through the opening, turned to the right, knelt there, and prayed that he would not be discovered as he was “on conditions” and did not want to be arrested for breaching his bail.
[12] He insisted he did not have a gun at the park, that he did not have a gun when he hid under the deck, and that the handgun found there was not his.
[13] The appellant testified that following his arrest he was taken to hospital to be treated for his injuries. The dog bites were sutured. His left orbital bone, which had been shattered, required surgery and titanium implants to repair. That injury has left him with pain and vision problems. His nose was also broken. Of note, the appellant, 21 years old at the time, was not a physically imposing man; he is of medium height, and fairly described himself as “skinny”.
[14] …The trial judge…
…However, she rejected his testimony that the gun was not his. She found it was and convicted him accordingly.
Grounds of Appeal
I) That the Trial Judge Misapprehended the Law Regarding Circumstantial Proof of Guilt
[17] The police evidence was that the opening under the deck, though small, was obviously large enough for a person to get through. As mentioned, the handgun was found wrapped in a sock inside a white pail. It appears the pail was under the deck prior to the appellant’s arrival, and it was not suggested he brought it there. There was no evidence, forensic or otherwise, tying the appellant to the sock or the handgun.
[18] It appears that some of the other assailants involved in the gunfight fled past #7 Saddlecrest, and it was a man with a hoodie seen emerging from the side of #7 Saddlecrest by officers in the helicopter that prompted officers on the ground to attend there approximately 30 minutes after their arrival at the park.
[20] Defence counsel asserted that in the absence of any forensic evidence, or any evidence at all, connecting the appellant to the pail, the gun, or the sock, reasonable inferences other than guilt had to be considered. Counsel advanced two alternative inferences that could account for the gun having been placed under the deck prior to the appellant’s arrival:
i. That someone not involved in the gunfight had placed it there on a previous occasion; or
ii. That one of the persons involved in the gunfight had placed it there and then left the area before the appellant’s arrival.
[21] In her reasons for judgment, the trial judge stated:
Is there a reasonable, rational, alternative explanation for the Discovered Handgun other than it was Mr. Brar who possessed and controlled the Discovered Handgun and hid it under the deck? In considering this, I remind myself not to draw inferences based on speculation or narrative that somehow connects facts to inferences sought to be drawn. Inferences must be reasonable and based on the proven facts: TR 621/29-330 [emphasis added]
[22] With respect, that is an incorrect statement of law. As stated in Villaroman at paragraph 35:
At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts” … However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts.
[23] The court reasoned that requiring proven facts to support explanations other than guilt wrongly obliges the accused to prove facts. And further, that alternative inferences as to guilt are not rendered speculative simply because they arise from a lack of evidence: Villaroman at para 36.
[25] …In the result, alternative inferences other than guilt may not have been considered or were dismissed because they were not based on proven facts.
[27] In summary, it is reasonable to assume that the trial judge would be guided by her misunderstanding of the law as she assessed alternative inferences and looked for proven facts to raise those inferences from possible to reasonable. In that way, alternative inferences not based on proven facts may have been dismissed as unreasonable. That prospect, in this case, is troubling.
II) That the Trial Judge Erred in Finding the Force Used to Effect the Arrest of the Appellant was Objectively Reasonable
[29] As mentioned, when the police dog pulled the appellant from under the deck, he was on his stomach with both of his arms stretched out above his head. Constable Wilkinson immediately began punching him in the face, perhaps five to seven times, shattering the orbital bone around his left eye and breaking his nose. The general tenor of the officer’s evidence was that when the appellant was pulled from the hole, he was unable to see what, if anything, the appellant had in his hands, so he immediately began punching him to stun him and prevent him from reaching for a weapon. And he kept on punching him in the face to distract him until other officers had secured his hands.
[30] Constable Wilkinson testified that he did this as a means of ensuring his safety and that of his fellow officers. He acknowledged that the police dog, still clamped on the appellant’s leg, was by itself a form of stunning. However, as he testified: “he [the appellant], in my opinion, needed further stunning”: TR 323/23 and “I kept punching him to keep him occupied until the members were able to control his hands”: TR 328/36-37.
[31] Significantly, Constable Wilkinson also testified that although the appellant’s arms were above his head when he emerged from the hole, after he started hitting the appellant one of his hands began moving toward his waist where a weapon may have been concealed. That evidence was supported by the testimony of the other officers.
The Applicable Law
[32] In addressing the limits of force that may be used to effect an arrest, the Supreme Court in R v Nasogaluak, 2010 SCC 6, at paragraph 32, stressed:
While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences. [emphasis added]
[35] In summary, both section 25 of the Criminal Code and the Supreme Court emphasize that the justification for using force must be supported by the officer’s subjective belief that the force used was necessary to protect the officer or others. That belief must then be assessed to determine if it was objectively reasonable as well.
[36] …Ultimately, the question is not whether some force was necessary to secure the appellant’s hands, but whether the degree of force used was objectively reasonable.
[37] In determining that issue, the trial judge was required to view the situation from the perspective of a reasonable person standing in the officer’s shoes as the events unfolded….
[40] …in determining the degree of force necessary, the trial judge need not have found that only one response was appropriate. For example, a finding that it would have been sufficient to put a foot on the appellant’s left arm to stop him from reaching for his waist would not necessarily have rendered any other response unreasonable. Rather, the trial judge should have focussed on the nature of the force used and ask whether in the circumstances that degree of force was objectively reasonable.
[41] On the facts of this case, it was not at all obvious that the force used was reasonable. Accordingly, whether there were other available options that could have achieved the same objective with less force needed to be considered. In the words of Chief Justice Fraser in R v Davis, 2013 ABCA 15, at paragraph 92:
This evidence whether there were other reasonable options open to the police officer short of employing deadly force goes directly to the issue of whether the Crown had established on a balance of probabilities that the police officer’s belief that deadly force was necessary was in fact objectively reasonable.
[42] Unfortunately, the trial judge did not engage in that analysis in reaching her conclusion that the beating was objectively reasonable. Rather, as to the other available options, she simply observed:
Defence counsel suggested that Constable Wilkinson could have taken other actions that were available to him, other than administering the stun punches to Mr. Brar’s face area. While it is the case that there may have been other options available to Constable Wilkinson, he was reacting in real time to rapidly occurring events, as is clear from the video footage, and making what he believed was the best course of action to ensure reasonably the safety of himself and his fellow officers: TR 498/32-37.
[43] She then concluded:
While it is regrettable that Constable Wilkinson’s stun punches resulted in serious injuries to Mr. Brar, I am of the view that this amount of force used by Constable Wilkinson in these circumstances was subjectively and objectively necessary, reasonable, and proportional: TR 499/27-30.
[44] With respect, a greater analysis was required.
Conclusion
[45] In the result, we are concerned that we cannot safely conclude that the errors we have identified were harmless and did not have a material effect on the outcome of the trial. Accordingly, we allow the appeal and order a new trial.
Impaired Driving and Other Criminal Code Driving Offences, 2nd Edition
