



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 Constables 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 Constables 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 Constables 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 respondents 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
    hospitals laboratory results. In response, an officer gave her a copy of all
    the seized hospital records. She concluded that the respondents blood alcohol
    concentration at the time of the accident was over 80 milligrams of alcohol in
    100 millilitres of blood, and that the respondents level of intoxication would
    have impaired a persons 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 judges 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 judges 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 Constables 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 Constables 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 accuseds 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  societys
    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 Crowns 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 Constables 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 courts
    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 Constables 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 individuals 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 persons 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 drivers 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 courts 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 appellants
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 appellants rights under
    s. 8, I would not exclude the evidence obtained by the analysis of the
    appellants jacket.

[44]

The
    question on this appeal is whether the Constables 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 Constables  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 individuals residual, post-taking
    reasonable expectation of privacy. I therefore conclude that the Constables
    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 states continued detention of
    the property is not otherwise legally justified,
[6]
the individuals 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 officers 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 persons
    residual privacy interest. As Rosenberg J.A. noted, at para. 113 of
Backhouse
,
    s. 490s 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 Constables 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 respondents 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 applicants 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 respondents 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
    respondents 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 judges 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
    Constables evidence, the trial judge found the Constables 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 respondents
Charter
-protected interests.
    And, as the trial judge determined, societys 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 Crowns 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 respondents 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.





[1]
Section 490(3) refers to a judge of a superior court of criminal jurisdiction
    or a judge as defined in section 552.... Section 552 permits a judge of the
    Court of Quebec or a judge of the Nunavut Court of Justice to grant such an
    order.



[2]
The trial judge cited
R. v. Noseworthy
, [1995] O.J. No. 1759 (S.C.);
R.
    v. Pringle
, 2004 ONCJ 229, [2004] O.J. No. 4156;
R. v. Correia
, 2005
    ONCJ 435, [2005] O.J. No. 4722;
R. v. Cunliffe
, [2006] O.J. No. 3580
    (S.C.).



[3]
In addition to the cases referred to by the trial judge, see
R. v. Guiller
(1985), 25 C.R.R. 273 (Ont. D.C.), at pp. 291-94, 297-98 (addressing the return
    requirement under former s. 443. Section 445.1 (later s. 489.1) was not enacted
    until 1985);
R. v. Placek
, 2012 BCSC 1175, [2012] B.C.J. No. 2301, at
    para. 27;
R. v. Pickton
, 2006 BCSC 1098, 260 C.C.C. (3d) 232, at para.
    60;
R. v. Butters
, 2014 ONCJ 228, 311 C.C.C. (3d) 516, at para. 55;
R.
    v. Elez
(9 June 2014) Barrie (Ont. C.J.), at p. 15.



[4]
See
R. v. Church of Scientology of Toronto
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.), at pp. 546-50, leave to appeal refused, [1987] S.C.C.A. No. 257;
United
    States of America v. Mathurin
, 2013 ONSC 2575, [2013] O.J. No. 1957, at
    para. 92 (now under appeal to this court);
R. v. Minor
(10 January
    2012) (Ont. S.C.), at para. 27;
Villaroman
, at para. 149;
R. v.
    Persaud
, [2008] O.J. No. 5077 (S.C.), at paras. 54-56;
R. v. Superior
    Pharmacy Ltd
., [1997] O.J. No. 2270 (Gen. Div.);
Re Retention of
    Seized Goods
(1986), 59 Nfld. & P.E.I.R. 112 (Nfld. S.C. Trial Div.),
    at paras. 17-23;
Jim Pattison Industries Ltd. v. R.
(1985), [1984] 2
    F.C. 954 (Trial Div.), at p. 963;
R. v. Vienneau
, 2010 NBPC 19, 361
    N.B.R. (2d) 34, at paras. 19-26.



[5]
In that case, this court wrote, at p. 546, that if a search warrant is valid,
    it cannot be invalidated by any conduct subsequent to its issue.



[6]
See, for example,
Dore
, where this court found that the states
    retention, pursuant to legislation, of an accuseds fingerprints after charges
    were withdrawn was a reasonable seizure.


