COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Garcia-Machado, 2015 ONCA 569 

DATE: 20150807

DOCKET: C58506

Hoy A.C.J.O., Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Gilberto Garcia-Machado

Respondent

Jocelyn Speyer, for the appellant

Carolyne Kerr, for the respondent

Heard: March 18, 2015

On appeal from the acquittal entered on February 18, 2014 by Justice Patrice François Band of the Ontario Court of Justice.

Hoy A.C.J.O.:

Overview

[1]          The respondent, Gilberto Garcia-Machado, crashed his vehicle into two trees. Armed with a valid search warrant, the police seized evidence critical to determining the level of alcohol in his blood. However, the responsible Constable misunderstood the requirements of s. 489.1(1) of the Criminal Code, R.S.C. 1985, c. C-46. He did not report to a justice “as soon as is practicable” after he had seized the evidence, as that section requires.

[2]          The trial judge concluded that the Constable’s failure to report as soon as is practicable breached s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge excluded the evidence seized and acquitted the respondent.

[3]          This appeal by the Crown raises two questions:

1.    Did the Constable’s failure to file a timely report to a justice pursuant to s. 489.1(1) of the Criminal Code in relation to lawfully seized items breach s. 8 of the Charter?

2.    If so, did the trial judge err in excluding the evidence?

[4]          I agree with the trial judge that the Constable’s failure to file a timely report breached s. 8 of the Charter. However, in my view, the trial judge erred in excluding the evidence. I would accordingly allow the appeal, set aside the acquittal, and order a new trial.

Background

[5]          The respondent crashed on August 25, 2012. The respondent and his front-seat passenger were seriously injured and were transported to hospital, unconscious. There, medical staff drew blood from the respondent for medical purposes. The police had reasonable grounds to believe that the respondent was intoxicated. Constable Kosher placed a Centre of Forensic Sciences seal on one of the vials of blood drawn from the respondent. He then obtained a search warrant, authorizing him to seize the vial of blood and hospital records relating to the respondent’s treatment after the crash. It was apparent from the third appendix to the warrant application that the Constable intended to send the blood sample and records to the Centre of Forensic Sciences for analysis.

[6]          The warrant required the Constable to bring the seized items before the justice who issued the warrant or another justice “to be dealt with according to law.” 

[7]          The Constable executed the warrant on August 28, 2012.

[8]          A toxicologist at the Centre of Forensic Sciences tested the vial of blood on September 13, 2012. The toxicologist also requested a copy of the hospital’s laboratory results. In response, an officer gave her a copy of all the seized hospital records. She concluded that the respondent’s blood alcohol concentration at the time of the accident was over 80 milligrams of alcohol in 100 millilitres of blood, and that the respondent’s level of intoxication would have impaired a person’s ability to drive.

[9]          Section 489.1(1) of the Code (reproduced below) required the Constable to report to a justice “as soon as is practicable” that he had seized and was detaining the vial of blood and the hospital records.

[10]       The Constable testified that he thought s. 489.1(1) of the Code required him to report to a justice only when charges were laid. He did not know that the section required him to report to a justice “as soon as is practicable”.

[11]       The information charging the respondent with Impaired Driving Causing Bodily Harm and “Over 80” Causing Bodily Harm was sworn on October 26, 2012. The Constable filed the report required by s. 489.1(1) on December 17, 2012 – approximately fifteen weeks after the seizure, ten weeks after the Centre of Forensic Sciences had completed its evaluation, and seven weeks after charges had been laid against the respondent. The Constable explained that he filed the report when he “had the opportunity” to attend the courthouse during a day shift and that, because of his schedule, he did not have such an opportunity for some time.

Sections 489.1(1) and 490 of the Criminal Code

[12]       Before considering the trial judge’s reasons, it is important to understand the scope of both ss. 489.1(1) and 490.

[13]       Section 489.1(1) provides as follows:

489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,

(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or

(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),

(i) bring the thing seized before the justice referred to in paragraph (a), or

(ii) report to the justice that he has  seized the thing and is detaining it or causing it to be detained

to be dealt with by the justice in accordance with subsection 490(1). [Emphasis added.]

[14]       Section 489.1(1) applies to both warrantless common law seizures and seizures pursuant to a warrant: R. v. Backhouse (2005), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 113, 115.

[15]       Importantly, s. 489.1(1) is the gateway to s. 490. As Rosenberg J.A. explained in Backhouse, at para. 112:

Section 490 provides that where things have been brought before a justice or a report made to a justice in respect of anything seized under s. 489.1, there is an obligation on the justice to supervise its detention. The section also sets out an elaborate scheme to facilitate the return of items seized to their lawful owners.

[16]       If a peace officer fails to file a report under s. 489.1(1), the property seized is not subject to judicial supervision during the investigation under s. 490. The real importance of s. 489.1(1) is its link to s. 490.

[17]        In R. v. Raponi, 2004 SCC 50, [2004] 3 S.C.R. 35, at para. 28, McLachlin C.J.C. described s. 490 as “purporting to provide a complete scheme for dealing with property seized in connection with crime”. Section 490 is lengthy. To provide context for my analysis below, I outline some of its principal provisions, although in very broad terms. The interpretation of these provisions is not at issue on this appeal.

[18]       Under s. 490(1), the justice to whom a report is made under s. 489.1(1)(b) is required to order the return of the property to the lawful owner or a person lawfully entitled to possession of the item unless the justice is satisfied that detention of the item is required “for the purposes of any investigation or a preliminary inquiry, trial or other proceeding.” In that case, the justice may order the item detained for up to three months.

[19]       Under ss. 490(2) and (3), if the justice is satisfied that, “having regard to the nature of the investigation”, the detention of the item for a further period is warranted, the justice may extend the detention for successive periods, but not for more than a year in total. Importantly, notice of each application to the justice for further detention must be given to the person from whom the thing detained was seized.

[20]       Section 490(3) requires an order from a judge of a superior court[1] to detain the item for more than a year, unless proceedings have been instituted in which the thing detained may be required.

[21]        Section 490(4) provides that if the accused is ordered to stand trial, the justice is required to forward anything detained to the clerk of the court.

[22]       Sections 490(7) and (8) permit the person from whom the item has been seized to apply for the return of the item seized after the expiry of the detention period or, in the case of hardship, before the expiry of the detention period.

[23]       Section 490(10) permits a person (other than the person from whom the item was seized) who claims to be the lawful owner or a person lawfully entitled to possession of the thing seized to apply for an order to return the thing.

[24]       Section 490(13) permits the Attorney General, the prosecutor, the peace officer, or other person having custody of a document to make and retain a copy of the document before bringing it before a justice or returning it to a person.

The trial judge’s reasons

[25]       The trial judge noted that the vast majority of Ontario cases he had reviewed[2] suggest that a failure to comply with the return and report provisions in s. 489.1(1) of the Code is a breach of s. 8 of the Charter. At para. 51, he wrote that the respondent had “a high expectation of privacy in the items seized, both of which contain a high level of personal and private information.”

[26]       At para. 54, he cited S. Hutchison et al., Search and Seizure Law in Canada, loose-leaf (Toronto: Carswell, 2005), at p. 18-1:

[I]t is often only during the ongoing detention that the governmental intrusion into the privacy interests of the individual are realized. It is detention which allows examination, copying, and forensic testing. These aspects of the seizure, as much as the initial search itself, would seem to engage the interests of the individual which s. 8 of the Charter was intended to protect. As such, the ongoing detention should meet the same constitutional standard that the original seizure is measured against, that is, reasonableness.

[27]       The trial judge concluded, at para. 55:

In this case, based on the authorities and the highly personal and private information at issue, I find that the police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to s. 8 of the Charter.

[28]       He then considered whether to exclude the evidence having regard to the three factors identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[29]       He concluded that the first Grant factor – the seriousness of the Charter-infringing state conduct – weighed heavily in favour of exclusion. He found, at para. 60, that the Constable’s actions were symptomatic of an institutional and systemic problem. He noted that in R. v. Villaroman, 2012 ABQB 630, 557 A.R. 1, at para. 131, the court found that non-compliance with these provisions was a “not uncommon situation in police forces across Canada.”  And in Cunliffe, the trial judge continued, Justice Corbett described the situation as a “matter of institutional concern.” The trial judge observed that Ontario jurisprudence has held for nearly thirty years that a police officer acts unlawfully if the officer fails to report or return on a warrant. He determined that the fact that the Constable’s colleagues and superiors knew no better was evidence that the problem did not rest exclusively with the Constable.

[30]       The trial judge reasoned that while the Constable had not acted dishonestly, in bad faith, or with wilful or reckless disregard for the law, he was careless and negligent.

[31]       The trial judge wrote, at para. 65:

The breach in this case is not minor or technical, but substantive. It involves provisions of the Criminal Code that are essential to maintaining the courts’ supervision of investigative steps that invade the privacy of individuals. The police failure to comply with those provisions in this case had the effect of ousting the court from its supervisory role until after all additional investigative steps had been taken in relation to items that were being held unlawfully. [Citations omitted.]

[32]       The trial judge also found that the second Grant factor – the impact on the Charter-protected interests of the accused – weighed in favour of exclusion. In his view, the state, in its analyses of the accused’s blood and medical records, had intruded into areas in which the accused held a high expectation of privacy.

[33]       The trial judge concluded that the final Grant factor – society’s interests in adjudication on the merits – favoured admission of the evidence. He noted that the case involved a very serious accident and significant injury to the driver and passenger. The evidence was highly reliable and very important, if not necessary, to the Crown’s case.

[34]       Balancing these three factors, the trial judge concluded that, because of the seriousness of the Charter breach, he must exclude the evidence.

Conflicting jurisprudence

[35]       Before analyzing whether the Constable’s violation of s. 489.1(1) breached s. 8 of the Charter, I will briefly address what the parties describe as conflicting jurisprudence on whether failure to comply with s. 489.1(1) breaches s. 8 of the Charter.

[36]       As the trial judge noted, a number of cases support the view that failure to comply with s. 489.1(1) renders the continued detention of a seized item unreasonable and contrary to s. 8 of the Charter.[3] On the other hand, the Crown points to a number of cases it argues support the view that failure to comply with s. 489.1(1) does not breach s. 8 of the Charter:[4]

[37]       I do not propose to review these cases. As I discuss below, R. v. Colarusso, [1994] 1 S.C.R. 20, and its holding on the reach of s. 8 play a central role in the analysis of whether failure to file a timely report under s. 489.1(1) breaches s. 8 of the Charter. Some of the cases, including this court’s decision in R. v. Church of Scientology of Toronto (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), which the Crown relies upon, pre-date Colarusso. The other cases do not invoke Colarusso on the question.

[38]       I now turn to the main issue on this appeal.

Did the Constable’s failure to file a timely report to a justice pursuant to s. 489.1(1) of the Criminal Code in relation to lawfully seized items breach s. 8 of the Charter?

[39]       Section 8 of the Charter provides that: “Everyone has the right to be secure against unreasonable search or seizure.” Section 8 of the Charter protects an individual’s reasonable expectation of privacy: R. v. Dore (2002), 166 C.C.C. (3d) 225 (Ont. C.A.), at para. 42.

[40]       In Colarusso, at pp. 61, 63-64, the Supreme Court of Canada made it clear that s. 8 continues to apply to protect a person’s privacy rights in seized items during detention of those seized items.

[41]       In that case, a coroner, acting under the Coroners Act, R.S.O. 1980, c. 93, seized a driver’s blood and urine samples from a hospital in order to decide whether to hold an inquest into a death. The police eventually took the evidence to use against the driver in a criminal proceeding. The Supreme Court concluded that the seizure, which was reasonable as long as the coroner seized the evidence, was unreasonable from the point at which the police took the evidence. At para. 91, La Forest J., writing for the majority, said this:

[I]t must be understood that the protection against unreasonable seizure is not addressed to the mere fact of taking. Indeed, in many cases, this is the lesser evil. Protection aimed solely at the physical act of taking would undoubtedly protect things, but would play a limited role in protecting the privacy of the individual which is what s. 8 is aimed at, and that provision, Hunter [v. Southam Inc., [1984] 2 S.C.R. 145] tells us, must be liberally and purposively interpreted to accomplish that end. The matter seized thus remains under the protective mantle of s. 8 so long as the seizure continues. [Emphasis added.]

[42]       To the extent this court’s decision in Church of Scientology held that s. 8 of the Charter does not apply to the act of detention, it was overtaken by Colarusso.

[43]       This court has already determined that detention of property in breach of s. 489.1(1) is unlawful: Backhouse, at para. 115. However, as Rosenberg J.A., writing for the court, added at para. 115:

It does not necessarily follow, however, that the continued unlawful detention violated the appellant’s Charter rights. The initial search and seizure was lawful and complied with the Charter. I need not decide whether the subsequent failure to comply with s. 489.1 could render the initial lawful seizure unreasonable. However, see Re Church of Scientology et al. and the Queen. (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) at 543-547.[5] Even if the detention of the clothing did violate the appellant’s rights under s. 8, I would not exclude the evidence obtained by the analysis of the appellant’s jacket.

[44]       The question on this appeal is whether the Constable’s failure to comply with the requirements in s. 489.1(1) to make a report to a justice as soon as practicable also rendered the continued detention of a seized item unreasonable and therefore contrary to s. 8 of the Charter.

[45]       I conclude that the answer to that question is “yes”. As I have explained, it is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The Constable’s  post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter. However, they will not render continued detention after a clear  violation of the requirement in s. 489.1(1) to report to a justice as soon as practicable reasonable.

[46]       It is established law that in order to be reasonable, a seizure must be authorized by law: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278; R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10. If seized property is detained without complying with s. 489.1(1), then its continued detention is not authorized by law: Backhouse, at para. 115.

[47]       Although one could conceive of provisions governing retention that would not relate to the protection of privacy, ss. 489.1(1) and 490 were enacted to “regulate state activity that interferes with privacy interests”, as Rosenberg J.A. explained in Backhouse, at para. 110:

Although s. 489.1 was an early enactment after proclamation of the Charter it reflects Charter values and principles. It favours judicial supervision. It is part of a scheme that includes s. 490 and that is designed to regulate state activity that interferes with privacy interests. [Emphasis added.]

[48]       As I explain below, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting an individual’s residual, post-taking reasonable expectation of privacy. I therefore conclude that the Constable’s clear failure to comply with that obligation breached s. 8.

[49]       One indicator of the privacy-related role of s. 489.1(1) is the fact that the form of the warrant authorizing the initial seizure required the peace officer to comply with s. 489.1(1) (“[T]his is to authorize and require you… to bring [the seized things] before me or some other justice to be dealt with according to law”).

[50]       A second indicator is the substance of the provision itself. Section 489.1(1) requires a peace officer who wishes to detain a thing seized to bring the thing before a justice or report to a justice that he or she has seized the thing. It engages judicial oversight of state-held property in which privacy interests subsist. It also ensures that a record is made of what was actually seized. Such a record may be critical if a person seeks to assert that the initial seizure was overly broad or that the state does not need the item seized for its investigation.

[51]       A third  indicator of the role of s. 489.1(1) is the nature of the rights s. 490 provides to individuals whose property has been taken. Two  aspects of that section are particularly important.

[52]       First, s. 490(2) requires the state to give notice to the person from whom the detained thing was seized if the state wishes to obtain an extension beyond the initial three-month detention period. Notice gives the affected person the opportunity to argue that the nature of the investigation does not warrant further detention of the item seized. If the state does not need the item for the purpose envisaged when it seized it, and the state’s continued detention of the property is not otherwise legally justified,[6] the individual’s privacy interest should prevail. Moreover, notice under s. 490(2) may be the only way an affected individual learns exactly which items the state has taken. For example, as the result of a peace officer’s failure to make a return on the warrants, the defendants in Guiller were not fully apprised of what was seized until the items were introduced at trial.

[53]       In R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, the Supreme Court highlighted the importance of notice where privacy is at issue. Section 184.4 of the Code (the emergency intercept provisions) did not provide after-the-fact notice to individuals whose communications the police had intercepted without prior judicial authorization. The court held, at para. 85, that s. 184.4 violated s. 8 because it did not include post-intercept notice or any other specific mechanism to permit supervision of police intercept activity. Moldaver and Karakatsanis JJ., writing for the court, adopted this statement, at para. 83:  “The right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy.”  Although made in a different context, this comment is apposite. Notice under s. 490(2) may provide an affected individual with the ability to challenge the necessity of the continued detention of items seized.

[54]       A second important aspect of s. 490 is that it provides the lawful owner of the item seized, a person lawfully entitled to possession of the item seized, or the person from whom the item was seized the right to apply for return of the item – the meaningful remedy that Tse adverts to. Return of the seized  items reduces or eliminates the risk that the state will violate the person’s residual privacy interest. As Rosenberg J.A. noted, at para. 113 of Backhouse, s. 490’s relatively summary procedure is much preferable to a more cumbersome and expensive replevin action in civil court.

[55]       The recording of the items seized, the right to notice and the right to apply for return of things seized confer important protections on people whose items the state holds in detention. Compliance with s. 489.1(1) is the gateway to all of these protections. The appellant failed to report to a justice for over three months after the blood and hospital records were seized. Effective judicial oversight of property in which the appellant maintained a residual privacy interest was compromised. I conclude therefore that the Constable’s clear failure to comply with the requirement in s. 489.1(1) that he report to a justice as soon as practicable breached s. 8 of the Charter. I leave for another day whether any other breach of s. 489.1(1) or any breach of s. 490 – even if so minor or technical as to have no real impact on the judicial oversight contemplated by the sections – would breach s. 8 of the Charter.

[56]       I turn next to whether the trial judge erred in excluding the evidence.

Did the trial judge err in excluding the evidence pursuant to s. 24(2) of the Charter?

[57]       Where a trial judge has considered the proper factors and has not made any unreasonable findings, his or her decision to exclude evidence under s. 24(2) is owed considerable deference on appellate review. However, if relevant factors have been overlooked or disregarded, a fresh Grant analysis is both necessary and appropriate: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82.

[58]       As I explain below, the trial judge failed to consider a number of relevant factors in assessing the seriousness of the breach and the impact of the breach on the Charter-protected interests of the respondent. Conducting a fresh Grant analysis with reference to all of the relevant factors, I would not exclude the evidence.

[59]        In my view, the trial judge failed to consider the following relevant factors.

[60]       First, he did not expressly consider that the initial search was authorized by a warrant. Before the Constable seized the evidence, a justice had already balanced the very significant privacy interest of the respondent in his blood and his medical records against the interest of the state in investigating the crash: see R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 46.

[61]       Second, Cole instructs that in assessing the impact of a breach, a trial judge should consider the nature of the respondent’s reasonable expectation of privacy at the time of the breach. In Cole, a work-issued laptop computer was seized without a warrant. The Supreme Court, at para. 92, found that the trial judge, in assessing the impact of the breach, had failed to consider the applicant’s diminished reasonable expectation of privacy in a work-issued computer. Similarly, here the trial judge failed to consider that the respondent had a minimal residual privacy interest in the blood sample and the hospital records when the reporting period under s. 489.1(1) lapsed.

[62]       Third, the trial judge did not consider that the property seized was that specifically authorized by the warrant and that the property was used for the precise purpose for which it was obtained. No event subsequent to the issuance of the warrant necessitated a re-balancing of the respondent’s privacy interest against that of the state in investigating the incident. While the respondent had an objectively reasonable expectation that the property would not be used for any purpose other than that for which it was obtained, he did not have an objectively reasonable expectation that the property seized would not be used for the very purpose for which it was lawfully obtained.

[63]       Fourth, had the Constable made the requisite report “as soon as is practicable”, the justice of the peace would undoubtedly have ordered detention of the evidence. The police indisputably needed the blood sample and the hospital report for the investigation. This “inevitability” factor was a consideration in Cole. There, in assessing the impact of the breach, the Supreme Court took into account the fact that had the officer complied with the applicable constitutional requirements, the evidence would necessarily have been discovered: Cole, at para. 93.

[64]       Fifth, the trial judge did not focus on the nature of the property at issue. The respondent was not deprived of the use or enjoyment of the items. The items at issue are much different than a smart phone or a computer. Practically, it did not matter to the respondent if the state continued to detain the items and deprived the respondent of the opportunity to have them returned.

[65]       Sixth, this was a case of delayed compliance, not of complete non-compliance.

[66]       And, finally, in the case of the hospital records, the impact of the breach on the respondent’s residual privacy interest was even less than in the case of the blood sample. Section 490(13), referred to above in my discussion of s. 490, provides as follows:

The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, before bringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection (1), (9) or (11), make or cause to be made, and may retain, a copy of the document.

Hence, even if the respondent had been given notice and obtained return under s. 490, the state would have been entitled to retain a copy of the hospital records.

[67]       I acknowledge the trial judge’s concern that the Constable, although he did not act dishonestly, in bad faith, or with wilful or reckless disregard for the law, was not familiar with the timing requirement of s. 489.1(1), despite its enactment nearly thirty years ago. I also acknowledge that, based on the Constable’s evidence, the trial judge found the Constable’s colleagues, including some superiors, were similarly ill-informed. Nonetheless, considering all the factors outlined above, I would without hesitation characterize the seriousness of the breach in this case as minor or technical.

[68]       Based on the factors outlined above, I also conclude that in this case, the breach had no real impact on the respondent’s Charter-protected interests. And, as the trial judge determined, society’s interest in the adjudication on the merits favours admission of the evidence. The case involved a serious accident that resulted in significant injury. The evidence makes up a critical piece of the Crown’s case.

[69]       Balancing the three Grant factors, I would not exclude the evidence.

Disposition

[70]       In the result, I would allow the appeal, set aside the respondent’s acquittal, and order a new trial.

Released: August 7, 2015 (A.H.)

                                                                   “Alexandra Hoy A.C.J.O.”

                                                                   “I agree K. Feldman J.A.”

                                                                   “I agree Paul Rouleau J.A.”