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Criminal - Drunk Driving. R. v. Khandakar
In R. v. Khandakar (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown summary conviction appeal of a conviction for refusing to provide a 'roadside breath screening' (breathalyzer) [also: 'approved screening device' demands ('ASD demands')] sample, where the issue was how promptly must they comply with a demand before they commit an offence:[1] This Crown summary conviction appeal raises the question of how long persons subjected to roadside breath screening demands have to change their minds about refusing to provide a breath sample before they commit a criminal offence. Many years ago, in R. v. Domik, [1980] O.J. No. 642 (C.A.), aff’g (1979) 2 M.V.R. 301 (Ont. H.C.), this court held that an initial refusal will not be criminal if the accused later agrees to provide a breath sample as part of the “same transaction”. This appeal requires us to reconcile this rule with the statutory requirement in s. 320.27(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46, that persons subjected to “approved screening device” demands (“ASD demands”) must provide a breath sample “immediately”.
[2] As I will explain, I do not accept the Crown’s argument that Domik has no application to refusal cases involving ASD demands. We have not been invited to reverse Domik, and I am not persuaded that it can or should be read as narrowly as the Crown contends. However, I would hold that in ASD refusal cases the duration of the “transaction” is constrained by the requirement that ASD tests be conducted “immediately”. In other words, when someone initially refuses to provide an ASD breath sample, the maximum time within which they can change their mind cannot exceed the time within which a compelled breath sample can lawfully be obtained by the police. This latter time is determined by the operational requirements of the ASD test process and by any “unusual circumstances” that extend the statutory “immediacy” window: R. v. Breault, 2023 SCC 9, 425 C.C.C. (3d) 1, at paras. 32, 51-60.
[3] I would also clarify that Domik creates a window during which persons subjected to breath demands can change their minds about refusing before committing the actus reus of the refusal offence. This is an analytically distinct question from whether the accused’s refusal to comply in a particular case was “unequivocal”, which bears on both the actus reus and the mens rea of the refusal offence.
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C. Relevant statutory provisions
[11] The Criminal Code provisions that authorize the police to compel motorists to provide breath samples have a long history. They have been amended many times over the last 40 years, including most recently in 2018. Although there are some important differences between the current Criminal Code sections and those that they replaced, the specific issues raised in this appeal are unaffected by the 2018 amendments.
(1) Police powers to make breath demands
[12] There are two different Criminal Code breath demand powers. It is a criminal offence under s. 320.15(1) to refuse or fail to comply with either form of demand.
[13] The first breath demand power, now situated in s. 320.27, authorizes the police to demand that the subject blow into an “approved screening device” (“ASD”).[1] I will refer to this as an “ASD demand”. In this case, PC Bannister relied on s. 320.27(1)(b), which required her to have “reasonable grounds to suspect” that the respondent had alcohol in his body.[2] It is undisputed that she had sufficient grounds to make this demand, although the respondent maintains that her demand was nevertheless unlawful because she waited too long to make it after forming her grounds.
[14] Assuming that PC Bannister’s ASD demand was lawful, once she made it, the respondent became obliged to provide a breath sample “immediately”: s. 320.27(1)(b). The analogous provision in previous versions of the Criminal Code used the term “forthwith”, but it is common ground that “forthwith” and “immediately” mean the same thing: Breault, at para. 29.
[15] The second breath demand power, now found in s. 320.28 of the Criminal Code, authorizes the police to demand the production of breath samples for analysis by an “approved instrument”.[3] I will refer to these as “intoxilyzer demands”, after the trade name of the approved instrument most commonly used in Ontario. Section 320.28(1)(a)(i) requires that both the making of the demand, and compliance with the demand once it is made, must occur “as soon as practicable”.
[16] Persons subjected to both types of breath demands are “detained” within the meaning of s. 10 of the Charter. However, the ASD demand power has been interpreted as implicitly suspending detainees’ s. 10(b) Charter rights in a manner that is justified under s. 1: see e.g., R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640. As a consequence, persons subjected to ASD demands generally cannot obtain legal advice before deciding whether or not to comply. In contrast, the intoxilyzer demand power does not implicitly suspend s. 10(b) Charter rights. Persons subjected to intoxilyzer demands must be advised of their right to counsel and, if they choose to exercise this right, are entitled to speak with a lawyer before they decide whether to provide breath samples.
(2) The offence of failing or refusing to comply with a demand
[17] Section 320.15(1) of the Criminal Code states:320.15(1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28. [18] To establish the actus reus of the offence, the Crown must prove that the police made a lawful demand under either s. 320.27 or 320.28, and that the accused either “fail[ed]” or “refus[ed]” to comply. In cases involving the refusal branch of the offence, the accused must be proved to have refused “unequivocally”: R. v. Degiorgio, 2011 ONCA 527, 275 C.C.C. (3d) 1, at para. 42.[4]
[19] There is disagreement in the case law about the mental elements of the refusal offence: specifically, over whether the Crown must prove that the accused intentionally failed or refused to provide a breath sample, or whether it is enough for the Crown to prove that the accused knew that their conduct would have this result: see e.g., R. v. Porter, 2012 ONSC 3504; R. v. Lewko, 2002 SKCA 121, 169 C.C.C. (3d) 359; R. v. Soucy, 2014 ONCJ 497, 316 C.C.C. (3d) 153; R. v. Slater, 2016 ONSC 2161, 94 M.V.R. (6th) 224; R. v. Mtonga, 2021 ONSC 1482. We are not called on to resolve this question here, since there is no dispute that the respondent was intentionally refusing to comply with PC Bannister’s ASD demand.
(3) Domik and its progeny
[20] Domik involved an intoxilyzer demand under what was then s. 235 of the Criminal Code. The accused was taken to a police station, where he initially refused to provide a breath sample. While the police were typing up the paperwork to charge him with the refusal offence, he changed his mind and asked if he could take the test. However, the police declined to let him do so.
[21] The accused was convicted of the refusal offence at trial, but on appeal by way of a stated case, Grange J. (as he then was) set aside the conviction and entered an acquittal. He adopted the following comment by MacDonald J.A. of the Nova Scotia Court of Appeal in R. v. Bowman (1978), 1978 CanLII 2337 (NS CA), 40 C.C.C. (2d) 525 (N.S.C.A.), at p. 529:If a person refused to comply with a s. 235(1) demand but immediately thereafter indicated a change of mind and a willingness to take the test then since the refusal and the subsequent change of heart occurred almost simultaneously both really comprise the reply to the demand, i.e., form but one transaction, and there would not therefore, in my view, be a refusal in law. [22] Grange J. then added, at para. 5 of his reasons:Section 235 is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal. A majority of this court later dismissed a further Crown appeal orally, “for the reasons given by Grange J.”: [1980] O.J. No. 642 (C.A.).[5]
[23] As the Summary Conviction Appeal Court (“SCAC”) judge noted in his reasons in the judgment on appeal, Domik has been understood by lower courts, as well as by the Alberta Court of Appeal,[6] as establishing the principle that the refusal offence is not committed when a person who initially refuses to provide a breath sample later agrees to do so, provided that their later agreement and the initial refusal form part of a “single transaction”.[7] The case law applying Domik has not distinguished ASD demands from intoxilyzer demands.[8] At paras 37-60 the court explains why it endorses the prior Domik doctrine:(5) Summary of conclusions
[61] In summary, I would hold that the Domik “same transaction” principle applies in all refusal cases, both those involving ASD demands and those involving intoxilyzer demands. However, the maximum duration of the “same transaction” is context-specific. In ASD demand cases, the Domik “same transaction” window should be understood as co-extensive with the maximum time that the police have in the circumstances of a particular case to obtain a breath sample “immediately”.
[62] Accordingly, a trial court applying Domik in an ASD demand refusal case must consider whether the accused’s change of mind occurred at a time where the police could still have lawfully obtained a breath sample, having regard both to the operational time required to collect a sample “immediately”, and the presence of any “unusual circumstances”: Breault, at paras. 32, 51-60. If a trial judge determines that the accused’s change of mind occurred sufficiently soon after the initial refusal to form part of the “same transaction”, such that the police could still have lawfully obtained the breath sample, this will lead to the conclusion that the actus reus of the refusal offence has not been established. This will be so even if the initial refusal was expressed unequivocally. The timing of the police decision to arrest the accused for the refusal offence may be a relevant factor when considering whether the accused’s change of mind occurred within the co-extensive bounds of the statutory immediacy requirement and the Domik “same transaction” window, but it will not be determinative.
[63] However, if the court concludes that the accused’s change of mind occurred too late to have been part of the “same transaction” as the initial refusal, taking into account the statutory immediacy requirement, the court must still consider whether the evidence as a whole, including the evidence of the accused’s subsequent conduct, gives rise to a reasonable doubt about whether the initial refusal was unequivocal. . R. v. Coates
In R. v. Coates (Ont CA, 2024) the Ontario Court of Appeal considered a motion to stay a sentence of a driving prohibition and fine for the offence of "operating a conveyance when the concentration of alcohol in his blood exceeded the legal limit contrary to s. 320.14(1)(b) of the Criminal Code", while the appellant was seeking leave to appeal to the SCC.
Here the court considers the test for a stay on appeal of a driving prohibition:[27] ...., the applicable test for an application for a stay of a driving prohibition was described by this court in R. v. Smug, 1998 CanLII 14616 (Ont. C.A.). The burden is on the applicant to establish that:1. the appeal is not frivolous;
2. the continuation of the prohibition pending appeal is not necessary in the public interest; and
3. to grant the stay would not detrimentally affect the confidence of the public in the effective enforcement and administration of justice. ....
[34] Although the applicant has complied with stays granted in the past, I am not persuaded that he has met his burden. The materials filed shed no light on why other transportation alternatives are unavailable for the applicant. No explanation is provided as to why others cannot fulfill the applicant’s driving responsibilities for his mother and children. There is no evidence that illustrates that his mother relies on the applicant for transportation or why he cannot rely on taxis, a driver, or carpool. Although it would be more convenient for the applicant were his driving prohibition to be stayed, this is not the test.
[35] The confidence of the public interest in the effective enforcement and administration of justice would be detrimentally affected if a stay were to be granted. His blood alcohol readings were high, he lied to the police by telling them he had only had two drinks, the prospect of obtaining leave to pursue a third appeal for this offence is, in my opinion, low, and his concerns reflect a need to address convenience, not hardship. The interests of justice do not favour granting the relief requested. I would reach the same result applying the test in R.J.R. MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 as advocated by the applicant. . R. v. Coates
In R. v. Coates (Ont CA, 2024) the Ontario Court of Appeal considered a motion to stay a sentence of a driving prohibition and fine for the offence of "operating a conveyance when the concentration of alcohol in his blood exceeded the legal limit contrary to s. 320.14(1)(b) of the Criminal Code", while the appellant was seeking leave to appeal to the SCC.
The issue faced by the court was whether it had "the jurisdiction ... to grant a stay in the absence of leave having been granted by the Supreme Court":[8] The applicant states that he seeks leave to appeal pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26 and that s. 65.1(1) of the Supreme Court Act provides this court with jurisdiction to stay the applicant’s driving prohibition and fine.
[9] In contrast, the Crown argues that this court does not have jurisdiction to grant a stay pending appeal to the Supreme Court in these circumstances unless and until leave is granted. The Crown submits that s. 320.25 of the Criminal Code governs the circumstances in which a stay may be granted for such a sentence. That section speaks of “if an appeal is taken” against a conviction or sentence for an offence relating to a motor vehicle or other conveyance. An appeal is only taken, the Crown argues, when leave has been granted.
[10] I do not accept that this court has jurisdiction to stay a driving prohibition in the absence of leave having been granted by the Supreme Court. I say this for the following reasons.
[11] As the Crown elected to proceed by way of summary conviction at trial, the Criminal Code does not confer jurisdiction to appeal directly to the Supreme Court. Leave to appeal is required.
[12] Section 320.25(1) of the Criminal Code states:Subject to subsection (2), if an appeal is taken against a conviction or sentence for an offence under any of sections 320.13 to 320.18, a judge of the court to which the appeal is taken may direct that the prohibition order under section 320.24 arising out of the conviction shall, on any conditions that the judge imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court. [13] The offences cited in s. 320.25(1) all concern offences relating to a ‘conveyance,’ which is defined to mean a motor vehicle, a vessel, an aircraft, or railway equipment: Criminal Code, s. 320.11. The offence for which the applicant was convicted pursuant to s. 320.14(1)(b) is encompassed by this subsection, which specifically addresses stays of a prohibition order. The subsection speaks of “if an appeal is taken” and therefore contemplates leave to appeal already having been obtained.
[14] Section 320.25(2) of the Criminal Code states:In the case of an appeal to the Supreme Court of Canada, a direction may be made only by a judge of the court from which the appeal was taken. [15] Section 320.25(2) of the Criminal Code provides for a stay of a prohibition order when the appeal is to the Supreme Court. It provides that a direction that a prohibition order be stayed “may be made only by a judge of the court from which the appeal was taken.” In other words, under subsection 2, the Supreme Court does not address such an application. However, before this court can grant a stay of the prohibition order, the Supreme Court has to have first granted leave to appeal.
[16] The history of s. 320.25(2) of the Criminal Code provides some insight into its scope. Its predecessor was s. 261(1.1), which mirrors the text of s. 320.25(2). Section 261(1.1) itself was introduced in 2008, when Parliament passed the Tackling Violent Crimes Act, S.C. 2008, c. 6. Before that, the former s. 261 conferred jurisdiction to stay a driving prohibition exclusively on “a judge of the court being appealed to.” Thus, in the case of an appeal to the Supreme Court, the stay had to emanate from that court. The 2008 amendments changed this. The Supreme Court no longer adjudicates such a motion; the appellate court does, but only after leave to appeal has been granted.
[17] In contrast, under s. 65.1 of the Supreme Court Act, either the court appealed from, or the Supreme Court, may order a stay of proceedings on the filing of a notice of application for leave to appeal.
[18] Section 65.1(1) of the Supreme Court Act states:The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate. [19] It would be strange if, under s. 320.25 of the Criminal Code, the Supreme Court is relieved from considering stays of prohibition orders when an appeal is taken from driving convictions but (following the applicant’s interpretation), is obliged under s. 65.1 of the Supreme Court Act to engage with a request for a stay of a driving prohibition in the face of a request for leave to appeal. The applicant’s interpretation would run counter to the legislative intent reflected in s. 320.25.
[20] Instead, s. 320.25 is the specific provision governing stays of prohibitions for appeals from driving convictions and s. 65.1 is the more general provision, albeit in a different statute. Section 320.25 creates a complete code for applications to stay driving prohibitions. However, its focus is narrow. It only addresses stays relating to driving prohibitions ordered under s. 320.24 and the offences in ss. 320.13-320.18. By contrast, s. 65.1 of the Supreme Court Act addresses stays pending leave to appeal broadly. In short, the narrow Criminal Code provision operates as an exception to the more general s. 65.1 of the Supreme Court Act. As such, the former should prevail. As stated by Ruth Sullivan in The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022) at pp. 354-355, when dealing with two provisions in different statutes passed by the same legislature: “the specific provision implicitly carves out an exception to the general one.”
[21] In R. v. Reed (1997), 1997 CanLII 3276 (BC CA), 120 C.C.C. (3d) 556 (B.C. C.A.), Finch J.A. considered s. 320.25’s penultimate predecessor, the former s. 261. He found he had no jurisdiction to grant a stay of a driving prohibition despite the broad statement in s. 65.1 of the Supreme Court Act. At para. 11, he stated that: “in my view the clear and specific language of the Criminal Code and the Motor Vehicle Act dealing with orders of the sort that are sought in this case must be taken to apply in preference to the more general provision of s. 65.1.” The same reasoning applies to s. 320.25 and is reinforced by other areas of the law where specific legislation has been said to govern stays pending leave to appeal to the Supreme Court, rather than the Supreme Court Act: see e.g. Boily v. McNulty, 1927 CanLII 110 (SCC), [1927] S.C.R. 275; Labatt Breweries of Canada Ltd. v. Canada (Attorney General), 1979 CanLII 183 (SCC), [1980] 1 S.C.R. 594.
[22] In addition, it should be noted that s. 320.25 applies to all driving conviction appeals, including those to the Supreme Court. If there is a leave requirement, s. 320.25 limits the availability of a stay to cases where leave has been granted.
[23] In this regard, I note that other provisions of the Criminal Code expressly provide remedies where leave to appeal and appeals are both sought to be encompassed. For instance, s. 679(8) on bail pending appeal states: “This section applies to applications for leave to appeal and appeals to the Supreme Court of Canada in summary conviction proceedings.” The same is true with s. 683(5) on suspensions and s. 689(1)(b) on forfeiture of property. Had Parliament intended that stays of driving prohibitions be available when leave to appeal is sought, it would have said so.
[24] I would also observe that a driving prohibition is temporal in nature. If the Supreme Court does grant leave to appeal, an applicant is still at liberty to apply for a stay pending the appeal. This reality supports the interpretation given to s. 320.25 of the Code.
[25] I am therefore compelled to conclude that I do not have jurisdiction to grant a stay of the applicant’s driving prohibition in the absence of leave to appeal having been granted.[1] . R. v. Singh
In R. v. Singh (Ont CA, 2023) the Court of Appeal considered whether the smelling of a car accident victim's breath in hospital by a police officer was a Charter s.8 breach. Here the court engages in a useful assessment of the Charter s.8 search and seizure protection in these circumstances [more broadly at paras 38-83]:(iv) Did the police violate the appellant’s personal privacy?
[67] As set out above, the appellant argues, that by smelling his breath, the officers infringed upon the appellant’s personal and informational privacy interests protected by s. 8. I will first address the personal privacy claim.
[68] In support of the personal privacy claim, the appellant describes the smelling of his breath as “the search of his mouth”, and equates the smelling of his breath with the capture and analysis of a driver’s breath by the administration of a breathalyzer or a roadside screening test. The use of either device involves a search and seizure for the purposes of s. 8: Goodwin, at para. 51. Counsel further submits that the officers invaded the appellant’s personal privacy by placing their noses in “the intimate area”, two inches above the appellant’s face. Counsel does not attempt to define the exact metes and bounds of the “intimate area” around a person’s mouth, but submits that it reaches at least two inches from the appellant’s mouth.
[69] I cannot agree with counsel’s submissions. Nothing the officers did interfered with, or intruded upon, the appellant’s bodily integrity. Smelling a person’s breath, even from two inches away, is neither invasive, nor an intrusion into “an intimate area”.
[70] Unlike when using a breathalyzer, or roadside screening device, the police did not take anything from the appellant’s body and did not co-opt the appellant into assisting the police in making or gathering evidence. The appellant did what all people are always doing. He breathed air in and he exhaled air out.
[71] The police, using nothing more than their own olfactory senses, smelled the appellant’s exhaled breath. There is no difference between this conduct and the other observations made by the police with their eyes or their ears, when investigating the possibility that someone has been drinking and driving. If a police officer leaning into a car window to smell a driver’s breath while speaking to him at the roadside does not engage s. 8, I do not see how doing the exact thing in the emergency room does. Surely, the application of s. 8 does not depend on exactly how many inches the officer’s nose was from the driver’s mouth.
[72] In concluding that the smelling of the appellant’s breath engaged s. 8, the trial judge relied on R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8. Evans is a very different case. In Evans, the police entered the appellant’s property, intending to knock on his door and conduct a “sniff search” for marihuana. The court held that the police had no authority to go on the occupant’s property, for the purposes of conducting a criminal investigation and securing evidence. The police were trespassers when they approached the occupier’s door and knocked. By infringing the occupier’s well-recognized right to privacy in his residence, the police were in breach of s. 8 of the Charter. The breach extended to the information gathered by the police when they took advantage of their unlawful presence in the residence to smell for marihuana: see also R. v. Atkinson, 2012 ONCA 380, 110 O.R. (3d) 721, at para. 73.
[73] In this case, the police were not trespassers when they entered the emergency room and approached the appellant with the implicit permission of his doctor. Indeed, the police were under an obligation to try and speak with the appellant, assuming there were no medical reasons preventing them from doing so. Evans would be of assistance to the appellant if the court had held that the officers were lawfully at the front door speaking with the occupant, but still infringed the occupant’s s. 8 rights by smelling for marihuana.
[74] The trial judge also made reference to the “dog sniffing” cases: e.g. R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569. Those cases are also very different from this case. Because of their training, drug sniffing dogs are effectively allowing the police to look inside a package or luggage for a specific drug. Not surprisingly, courts have recognized that the contents of one’s packages and luggage are the subject of a reasonable expectation of privacy. Using a trained drug sniffing dog to smell a package is much more like using an x-ray machine to look inside a person’s body, than it is like a police officer smelling someone’s breath for alcohol.
[75] There was no intrusion upon the appellant’s personal privacy interest.
(v) Did the police violate the appellant’s informational privacy interest?
[76] By smelling the appellant’s breath, the police gained direct information – the smell – from which other information about what the appellant may have had to drink in the recent past might be inferred. The police wanted to find out whether the appellant had been drinking alcohol prior to the accident. For the purposes of s. 8, the operative question becomes whether the appellant had a reasonable expectation of privacy in respect of the information being sought by the police, that is, whether he had consumed alcohol prior to the accident: see Marakah, at para. 15; Reeves, at para. 31.
[77] Information pertaining to alcohol consumption attracts only a “diminished” or “minimal” expectation of privacy when that information is extracted from a driver’s body using a roadside screening device or a breathalyzer: R. v. Stillman 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 90; Goodwin, at para. 51; Grant, at para. 111. In my view, even that minimal expectation of privacy disappears when the information concerning the driver’s potential alcohol consumption comes exclusively from the police officer’s olfactory observations of the air exhaled by the driver.
[78] A number of considerations lead me to that conclusion. First, the information was available to the police when they were in a place where they were lawfully entitled to be. Second, the police were using only their observational powers. Third, the information gained by the police officers revealed very little about the appellant. The information was not definitive, in that it could not tell the officers that the appellant had been drinking prior to the accident, only that he may have been drinking. That information did not indicate when the appellant consumed alcohol, or how much he consumed. Standing alone, the information gained by smelling the appellant’s breath could not tell the police whether the driver was impaired at the time of the accident, or whether he had committed any other criminal offence. Fourth, the consumption of alcohol is neither an intimate detail of one’s life, nor an inherently private activity. Information gained by smelling the appellant’s breath revealed no intimate details about his personal life or any private activity he may have engaged in prior to the accident.
[79] Counsel for the appellant argue that because the appellant had been driving, the information that he may have consumed alcohol was incriminatory, and therefore, private. Counsel maintain that the reasonable expectation of privacy protected by s. 8 includes the right to make an informed decision as to whether to give potentially incriminatory evidence to the police. Counsel submit that because of his condition, the appellant could not make that decision. Counsel rely on S.S., at para. 49.
[80] This submission confuses the right to silence, guaranteed by s. 7 of the Charter, and the right to privacy protected by s. 8. A detained person has the right under s. 7 to make an informed decision as to whether to provide information to the police: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 175; R. v. LaFrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 97. That right is contingent upon the individual being detained by the police. As I will explain below, the appellant was not detained by the police in the emergency treatment room. The appellant’s attempt to infuse the privacy interest protected by s. 8 with principles underlying the right to silence is an attempt “to hide things that are incriminating, solely because they are incriminating”: El-Azrak, at para. 27.
[81] The nature of the activity giving rise to the police presence at the appellant’s bedside is also relevant to whether the appellant had a reasonable expectation of privacy in any information obtained by the police. The police were investigating a fatal car crash on a public thoroughfare. Canadian society accepts that the very real public safety concerns engaged during the investigation of serious car accidents must, of necessity, modify individual expectations of privacy in respect of information relevant to the accident under investigation.
[82] To summarize, having regard to the manner in which the information was acquired by the police, the nature of the information, and society’s strong interest in protecting the community from dangerous conduct on public highways, the appellant had no reasonable expectation of privacy in the information that he may have been drinking before the accident.
[83] As I would hold that the smelling of the appellant’s breath by Detective McDonald and his partner did not breach the appellant’s s. 8 rights, it follows that their observations were properly included in the ITOs and that the warrant and production orders were properly issued. The BAC results were properly admitted, unless the appellant can make out some or all of the other alleged Charter violations, and convince this court that those violations necessitate the exclusion of the BAC results from evidence under s. 24(2) of the Charter.
....
[102] Substantial authority supports the Crown’s position that Detective McDonald did not seize the information volunteered to him by the doctor. Two provincial appellate courts have held that in circumstances like those in which Detective McDonald received the information from the doctor, there was no seizure of that information under s. 8 of the Charter, despite the apparent breach of the doctor’s duty of confidentiality to the patient: Spidell, at paras. 39-43; R. v. Johal, 2015 BCCA 246, 324 C.C.C. (3d) 54, at paras. 52-55. In Dyment, at pp. 434-435, LaForest J. distinguished between cases in which medical personnel supply material to the police, e.g. blood samples, and cases in which doctors give information to the police. The former cases undoubtedly engage s. 8, however, cases in which only unsolicited information is passed to the police, may not engage s. 8.
[103] This court drew a similar distinction in Lambert, at paras. 48-61. A third party turned a computer over to the police which was jointly owned by the third party and the eventual accused. This court held that the accused maintained a reasonable expectation of privacy in the contents of the computer after it was turned over to the police. However, if the third party had instead simply told the police what was in the computer, the accused would have no reasonable expectation of privacy in the information relayed to the police by the third party. Paciocco J.A. said, at para. 58:[I]ndividuals do not have a reasonable expectation of privacy in the knowledge that others have [citation omitted]. Individuals with relevant information about criminal conduct are free to communicate this information to the police, without s. 8 being engaged. [104] Lambert did not involve a person, who, like a doctor, was under a legal obligation to hold certain information in confidence. That obligation may well colour the s. 8 analysis: see Mills, at para. 25. However, in Spidell and Johal, the appellate courts did not regard a breach of the doctor’s duty of confidentiality as determinative of whether the patient had a reasonable expectation of privacy in the information revealed to the police.
[105] The difficult issues outlined above do not have to be decided in this case. Whatever the outcome of the s. 8 analysis, the appellant can succeed on this ground of appeal only if he can convince the court that the s. 8 breaches involving Constable Andrews and/or Detective McDonald, assuming they are established, require the exclusion of the BAC results from evidence under s. 24(2) of the Charter. The appellant cannot do so.
[106] As explained in R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at para. 94, the exclusionary rule in s. 24(2) has two elements. The first, the threshold requirement, asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right. If the threshold requirement is satisfied, the trial judge goes on to consider whether, in all the circumstances, admitting the evidence would bring the administration of justice into disrepute.
[107] At the threshold requirement stage, the court looks for some nexus or connection between the Charter breach and the evidence sought to be excluded. In R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38, Moldaver J. said:Whether evidence was “obtained in a manner” that infringed an accused’s right under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of the three. A “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice. [Citation omitted]. [108] As I have concluded that the warrant and production orders were properly granted, the s. 24(2) analysis proceeds on the basis that the BAC results were obtained pursuant to valid court orders. In obtaining those orders, the police did not rely on Constable Andrews’ observation of the appellant’s “head nod”, or the statement made by the doctor to Detective McDonald. Nor is there anything in the ITO that can be said to have even an indirect connection to Constable Andrews’ observation, or the doctor’s statement to Detective McDonald.
[109] The only connection I can find between the BAC results and the alleged breaches of s. 8 by Constable Andrews and Detective McDonald is that both events could be said to have occurred in the course of the same investigation. Were that enough to establish the required connection, any evidence obtained at any time in the course of an investigation would be held to be obtained by any breach of the Charter which happened to have occurred at any time during the same investigation. That open-ended interpretation of the threshold requirement in s. 24(2) would inevitably lead to the exclusion of evidence where the connection between the Charter breach and that evidence could only be described as “remote” or “tenuous”: Mack, at para. 38.
[110] The police application for the warrant and production order based entirely on information other than Constable Andrews’ observation and the doctor’s statement to Detective McDonald amounted to a “fresh start” for the purposes of s. 24(2): Beaver, at paras. 97-98, 101-102. The BAC results were not “obtained in a manner” that breached the Charter and were beyond the reach of the exclusionary powers in that provision.[2]
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