R v Fedossenko (ABCA): Production orders can be granted on reasonable suspicion of an offence

NOTE (added Feb. 3, 2015): Amendments to the Criminal Code which take effect on March 9, 2015 contain provisions relating to the issuance of production orders which differ from the provisions of the Code discussed in this case: See Bill C-13: Protecting Canadians from Online Crime Act (2013-2014) Passed October 20, 2014, 41st Parliament, 2nd Session, s. 20. The newly-created “general production order” will not be available on a reasonable suspicion standard, but on the basis of reasonable grounds to believe. The decision discussed below will be of limited use in respect of any production order granted after the amendments take effect.

ORIGINAL POST (Nov. 5, 2014): The accused was injured in a single-vehicle collision, then taken to the hospital in an ambulance. A police officer was with him in the ambulance. On the way to the hospital, the police officer was told by the accused that he had consumed “a few beers earlier”. No signs of impairment had been noted by an emergency medical technician or other civilian witnesses. There was no smell of alcohol in the ambulance, but the police officer said when he placed his nose close to the accused’s mouth, he detected a faint smell of alcohol. The accused had red eyes, but he was coherent and was not slurring his speech. Nothing was known about the driving pattern prior to the collision and no evidence addressed the road conditions prior to the collision.

At the hospital, blood was taken from the accused for medical purposes. Subsequently, the accused was arrested for impaired driving and given his Charter rights and caution. A demand for a sample of the accused’s blood was also read. The accused did not wish to speak with a lawyer. Blood was taken from the accused pursuant to the demand.

The next day, police applied for a search warrant to seize from the hospital blood samples which had been taken from the accused for medical reasons. A justice of the peace refused to grant that search warrant, being unsatisfied that there were reasonable grounds to believe that the offence of impaired driving had been committed.

Some time later, the results of the blood taken pursuant to a demand were communicated to police. They indicated that the accused’s blood alcohol level was in excess of the legal limit at the time the samples were taken. Given this new information, police applied for a production under under the Criminal Code, s. 487.012 for production of the medical records of the accused from his emergency visit, including the analyses of the blood taken from the accused for medical purposes. The information to obtain (“ITO”) for the production order was similar to that which had been provided in support of the failed application for a search warrant, but with the addition of the results of the analysis of the blood taken pursuant to a demand. It was not disclosed in the ITO that the earlier search warrant application had been made (or that it had been rejected).

The officer who swore the ITO seeking a production order stated that he had reasonable grounds to believe that the accused had committed the offence of impaired driving. A production order was granted and the medical records, including lab testing results, were obtained.

At trial, the Crown conceded that the results of the analysis completed on the blood taken pursuant to the demand were not admissible because the officer did not have reasonable grounds to believe an offence had been committed at the time that demand was made. There was a dispute, however, as to the admissibility of the lab testing results obtained under the production order. At trial and on summary conviction appeal, the courts held that this evidence should also be excluded. The reasoning of the lower courts was:

  1. There were no reasonable and probable grounds to arrest the accused initially and, accordingly, to make the blood demand.
  2. Once the results of the blood demand were excluded from the ITO for the production order, the court is left with the same grounds that were in the ITO for a search warrant to seize the medical blood samples.
  3. The ITO for the production order, once excised of the illegally obtained evidence, did not disclose reasonable grounds to believe that the accused had committed the offence of impaired operation.
  4. Accordingly, there was no lawful basis for the issuance of the production order and the resulting seizure of documents was a breach of the accused’s Charter section 8 rights.

On the appeal (2014 ABCA 314), the issue was whether the trial judge and summary conviction judge had misinterpreted the wording of s. 487.012 with regard to whether an information to obtain was to demonstrate reasonable grounds to believe that an offence has been committed, or alternatively, reasonable grounds to believe that an offence is suspected to have been committed. This somewhat tortured language comes directly from s. 487.012(3), which provides, in part, that the ITO in support of the order sought must show “that there are reasonable grounds to believe that (a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; …”.

The courts below, in holding that “reasonable grounds to believe” meant “reasonable and probable grounds” had, in the view of the majority, read down s. 487.012(3) by excluding the phrase “or is suspected to have been committed”. Given the wording of the section, the majority held:

Under the circumstances here, the police were not required to show reasonable and probable grounds to believe the offence was in fact committed in order to meet the requirement in s 487.012(3)(a) of the Code. The purpose of the production order was to verify the reasonable suspicion that the offence was committed.

The dissenting decision of Justice O’Ferrall focused on the minimum constitutional standard for intrusive searches discussed in Hunter v Southam Inc., 1984 SCC 33. In my reading, the issue of whether the reasonable suspicion standard passes constitutional muster was not before the Court of Appeal. The appellant had sought to argue that the Crown’s interpretation of s. 487.012 was not constitutionally valid; however, the justice granting leave held that such issues should be decided after the statutory interpretation issue was resolved and on the basis of a more complete record: R v Fedossenko, 2013 ABCA 164.

Image Credit: Lori Greig. Licence. Link.

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