



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2019 ONCA 258

DATE: 20190403

DOCKET: C63994

Watt, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Brynn Campbell

Respondent

Susan Magotiaux, for the appellant

Ian B. Kasper, for the respondent

Heard: November 5, 2018

On appeal from the acquittal
    entered by Justice Bruce Glass of the Superior Court of Justice on May 31, 2017,
    sitting without a jury, with reasons reported at 2017 ONSC 3293.

van Rensburg J.A.:

INTRODUCTION

[1]

This is a Crown appeal of an acquittal. The sole ground of appeal
    is that the trial judge provided insufficient reasons for his
Charter

ruling excluding certain evidence from the trial.

[2]

On October 27, 2014, the respondents car collided head on with
    another car that was travelling in the wrong direction. Unfortunately, the
    occupant of the second car died of her injuries. The respondent was brought to
    the hospital. While there, she responded to the questions of two police
    officers. One of the officers noticed a faint odour of alcohol, but did not
    suspect that the respondent was impaired or that she had done anything to
    contribute to the collision. Urine and blood samples were taken at the hospital
    and eventually seized under warrant.  Subsequent analysis of the blood revealed
    that, at the time of the collision, the respondents blood alcohol
    concentration was well over the legal limit.

[3]

The respondent was charged with impaired care and control of a
    motor vehicle causing death, contrary to (what was then) s. 255(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, and care or control over 80 causing death,
    contrary to s. 255(3.1). By way of a pre-trial application, the respondent
    challenged the admissibility of her medical records and urine and blood samples
    that were seized under warrant, as well as oral statements she made to the
    police at the hospital and a written statement she later provided to police.
    The trial judge concluded that this evidence was obtained in breach of ss. 7
    and 8 of the
Canadian Charter of Rights and Freedoms

and must
    be excluded. After this evidence was excluded, the Crown called no evidence and
    the respondent was acquitted.

[4]

The Crown asserts that the trial judge provided insufficient
    reasons for granting the respondents
Charter

application, and asks
    this court to set aside the acquittal and order a new trial.

[5]

For the reasons that follow, I would decline to do so.

ANALYSIS

[6]

A Crown appeal of an acquittal will only be allowed if the Crown
    establishes that the trial judge made an error of law, and that the error might
    reasonably be thought, in the concrete reality of the case at hand, to have had
    a material bearing on the acquittal:
R. v. Graveline
, 2006 SCC 16,
    [2006] 1 S.C.R. 609, at para. 14. Only two of the issues raised by the Crown approach
    this threshold: (i) whether the trial judge provided insufficient reasons for his
    finding that P.C. Robinson (one of the officers who attended at the hospital) asked
    a nurse for the respondents urine ethanol results; and (ii) whether the trial
    judge provided insufficient reasons for excluding the search warrant evidence
    pursuant to s. 24(2) of the
Charter
. The determination of these issues
    is dispositive of the appeal.

(1)

The Finding That P.C. Robinson Asked for the Respondents Urine Ethanol
    Results

[7]

The police obtained search warrants authorizing the seizure of
    the respondents medical records pertaining to her treatment in hospital
    following the collision, as well as the samples of her blood and urine that
    were taken while she was there. The Information to Obtain (ITO) stated, among
    other things, that [d]uring the course of the investigation police learned
    that the [respondent] was taken to hospital and basic trauma blood work and
    urine were drawn for medical purposes, and that the respondents blood and
    urine were tested and registered positive and well above the legal limit for
    alcohol. (This statement was inaccurate in part, because at the time the ITO
    was prepared, the police had no information about the results of the respondents
    blood test.) The ITO also stated that P.C. Robinson overheard an ER nurse
    mention that [the respondents] urine results were 47 millimols [millimoles] and
    noted that this was equal to a BAC [blood alcohol concentration] of
186 mgs
/100
    mL of blood (emphasis in original). The ITO also referred to P.C. Robinsons
    observation of an odour of alcohol; statements by the respondent, including
    that she had consumed one alcoholic drink that evening; data downloaded from
    the air-bag control module of the respondents vehicle indicating that it was
    travelling 23 km/h above the speed limit, and that the driver took no evasive
    action prior to the collision; and an anonymous Crime Stoppers tip claiming
    that the respondent was impaired at the time of the collision.

[8]

The respondents primary position in her
Charter
application was that her statements were compelled, that the urine ethanol
    results were illegally obtained by P.C. Robinson, and that once such information
    was excised, the ITO was insufficient to support the warrants. As a result, the
    medical records and urine and blood samples were seized in violation of s. 8 of
    the
Charter
and ought to be excluded from evidence pursuant to s.
    24(2).

[9]

How the police came to know about the respondents urine ethanol
    readings was a central issue in the
Charter
application and the focus
    of much of the evidence and argument on the
voir dire
. The
    respondents counsel at trial described his argument on this point as the
    fundamental thrust of the application. The trial Crown identified the single
    overriding theme of what were doing today as a determination of whether or
    not the nurses statement to Officer Robinson about Ms. Campbells ethanol
    levels was obtained illegally such that it must be excluded. The trial Crown also
    conceded that, if the trial judge were to find that P.C. Robinson
asked
for the results (and not just overheard them, as stated in the ITO) and the
    results were excised from the ITO, the ITO could not support the warrants. Specifically,
    the trial Crown stated that if the urine ethanol results were to be excised
    from the ITO, this warrant is extremely weak if not completely deficient, and
    so there is no further case.

[10]

The trial judge ultimately excised from the ITO both the
    respondents statements to police (after finding they had been compelled and on
    the basis of
R. v. White
, [1999] 2 S.C.R. 417, and
R. v. Soules
,
    2011 ONCA 429, 105 O.R. (3d) 561, leave to appeal refd, [2011] S.C.C.A. No.
    375), and, after concluding that the police had obtained the information
    illegally, the reference to the respondents urine ethanol results. At paras.
    22 to 25 of his reasons, after addressing what was left, the trial judge concluded
    that the ITO was insufficient to support the issuance of the warrants.

[11]

The Crown focusses on the trial judges finding, at para. 18 of his
    reasons, that [t]he nurse provided the information to Constable Robinson after
    he asked about her readings. The Crown submits that the trial judge erred in
    law because he provided no reasons to explain this finding, and, in particular,
    how he resolved the conflict in the evidence between P.C. Robinsons testimony
    that he overheard the nurse speaking of the urine ethanol results and that of
    Douglas Campbell, the respondents father, that he heard the officer ask a
    nurse, Where is her level? or Wheres her level at? The Crown argues that
    the trial judges failure to explain the basis for his credibility finding, and
    in particular why he rejected the officers evidence and accepted Mr.
    Campbells evidence, is a fatal deficiency in his reasons.

[12]

In
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at
    para. 51, McLachlin C.J. stated that [t]he degree of detail required in
    explaining findings on credibility may  vary with the evidentiary record and
    the dynamic of the trial. She explained that [t]he factors supporting or
    detracting from credibility may be clear from the record, and, [i]n such
    cases, the trial judges reasons will not be found deficient simply because the
    trial judge failed to recite these factors: at para. 51.

[13]

As I will explain, although the trial judge did not articulate
    how he arrived at his conclusion that P.C. Robinson asked the nurse for the
    urine ethanol results, I consider his reasons to be sufficient because the
    factors supporting and detracting from the credibility and reliability of the witnesses
    on this issue were apparent on the record.

[14]

A key point here is that P.C. Robinsons evidence on the
voir
    dire
was not simply that he overheard a nurse mention the urine ethanol
    results, as stated in the ITO. Rather, after confirming that he overheard what a
    nurse was saying, the officer testified that he heard the sound of surprise,
    that he turned and looked, and that the nurse then looked at him and repeated
    her comment. Indeed, in his notebook P.C. Robinson wrote, Overheard nurses, Ethanol
    level 47, while his typed notes stated, I overheard a nurse mention urine
    results with ethanol level 47. I looked toward the nurses and the statement was
    repeated to me. I was unsure what that meant but noted it due to the surprised
    sound in the nurses voice.

[15]

P.C. Robinson testified that he did not know at the time nor at
    the
voir dire
what was meant by 47 or what a very high level of
    ethanol was, but D.C. Chad Lee (the lead investigator) testified that when he
    spoke with P.C. Robinson on the day of the collision, P.C. Robinson told him
    that the respondents ethanol levels were 43 and very high. The 43 reading
    was consistent with the hospital records. D.C. Lees notes also stated that P.C.
    Robinson advised him that the nurse told him the information. And while P.C.
    Robinson testified that he smelled alcohol on the respondent prior to speaking
    to D.C. Lee, D.C. Lee testified that according to his notes P.C. Robinson told
    him that he could not smell anything.

[16]

Mr. Campbell testified that he overheard P.C. Robinson ask a
    nurse, Where is her level or Wheres her level at? Under cross-examination
    he did not waver. In his submissions on the
Charter
application, Crown
    counsel challenged only the reliability of Mr. Campbells evidence, not his credibility.
    He suggested that Mr. Campbell was mistaken in what he overheard, due to his
    position (eight to ten feet away from P.C. Robinson, whose back was turned), or
    in his interpretation of what was said (which the Crown suggested was capable
    of a number of interpretations).

[17]

The problems with the contention that the respondents urine
    ethanol results had been simply overheard by the officer were apparent on the
    record. In important respects, P.C. Robinsons evidence was inconsistent with
    his own notebook notes and with D.C. Lees evidence. These inconsistencies
    undermined P.C. Robinsons credibility.  By contrast, Mr. Campbells
    credibility was not challenged. While his position was not ideal for overhearing
    what took place between P.C. Robinson and the nurse, he was clear in recounting
    what he could and could not hear. And, while the words Mr. Campbell heard might
    well be ambiguous in the abstract, in the context of this case their meaning is
    obvious  the officer was referring to the respondents urine ethanol level. In
    these circumstances it is apparent from the record why the trial judge found that
    P.C. Robinson asked a nurse about the respondents urine ethanol levels.

[18]

Accordingly, I would not give effect to the Crowns argument that
    the trial judges reasons on this point were insufficient. As already noted,
    the trial Crown conceded that it would be a breach of the
Charter

if
    the trial judge were to find that P.C. Robinson asked for the results and that,
    without the urine ethanol results, the ITO could not support the warrants
    (thereby constituting a breach of s. 8). I turn now to the trial judges
    decision to exclude the search warrant evidence under s. 24(2) of the
Charter
.

(2)

The Trial Judges Decision to Exclude the Evidence Obtained Pursuant to
    the Warrants

[19]

The Crowns second main argument on appeal is that the trial
    judges s. 24(2) analysis was inadequate. In particular, the Crown asserts that
    the trial judge made no case-specific findings, but addressed the
Grant

factors (
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353) in general
    terms only. Because of this, according to the Crown, it is impossible to
    determine the extent to which the trial judge took into consideration an
    erroneous factor  that is, his finding that the nurses were acting as state
    agents when they took the respondents blood without her consent. The Crown
    argues that if the trial judge had taken into consideration only the breach he
    found associated with the disclosure of confidential medical information (the
    urine ethanol results), the exclusion of evidence under s. 24(2) was not
    inevitable.

[20]

The trial judge was highly critical of the circumstances in which
    the respondents blood was taken. At paras. 17-19 of his reasons he noted that
    the respondent had refused to have blood taken or to have a needle inserted
    into her, both with EMS personnel and at the hospital. He accepted that she had
    a phobia about needles. He described the nurses taking of the respondents
    blood as a deliberate over-ride of her feelings. The trial judge then stated
    that the
nurses were acting as police agents
    when they took the respondents blood without her consent. He repeated this
    characterization again when he referred to the evidence of alcohol readings having
    been illegally obtained by nurses as agents of the state, and he concluded, at
    para. 19, that the evidence was the product of intrusion of the body of the [respondent].

[21]

The Crown contends that the conclusion that the nurses were
    acting as state agents when they took the respondents blood without her
    consent is not supported in fact or in law. The Crown points to evidence of a
    doctors order to draw blood, and the respondents acquiescence to her blood
    being drawn after she was told it was hospital procedure, as well as the
    absence of any direct evidence of a police request. The respondents counsel
    acknowledges that the trial judges conclusion that the nurses were acting as
    police agents when the blood was taken is troublesome.

[22]

The trial judge explained why he concluded that the nurses took
    the respondents blood without her consent, however he did not explain, and
    there is no real evidence to support, his conclusion that the nurses were
    acting as police or state agents when they did so. I would therefore accept the
    Crowns reasonable submission that the trial judge did in fact take into
    consideration an irrelevant factor in the course of his s. 24(2) analysis. And I
    agree that, because of the generality of the trial judges
s. 24(2)

analysis, it is
    impossible to say that how this factor affected his decision to exclude the
    search warrant evidence.

[23]

This is not the end of the matter, however. Where a trial judges
    ruling on s. 24(2) is unreasonable or reflects an error in principle, an appellate
    court is entitled to intervene and conduct the analysis afresh:
R. v.
    Davidson
, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 46. This court is
    entitled to do so here because of the trial judges reliance on an erroneous
    finding in his decision to exclude the search warrant evidence.

[24]

I pause here to note that the Crown argued that it would be
    impossible for this court to conduct a s. 24(2) analysis afresh due to the lack
    of clear factual findings by the trial judge upon which to ground the analysis.
    In particular, the Crown submitted that the trial judges failure to determine
    whether P.C. Robinson was acting in good faith or bad faith prevents this court
    from assessing the first
Grant

factor 
i.e.

the
    seriousness of the
Charter
-infringing state conduct.

[25]

I disagree. In assessing the first
Grant

factor,
    the court considers the nature of the police conduct and whether it involves
    misconduct from which the court should seek to dissociate itself:
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22. At para. 23 of
    her reasons in
Harrison
, McLachlin C.J. suggested that the metaphor of
    a spectrum used in
R. v. Kitaitchik
(2002), 166 C.C.C. (3d) 14 (Ont.
    C.A.), at para. 41, may assist in characterizing police conduct for purposes of
    this factor in the
Grant

analysis. In
Kitaitchik
,
    Doherty J.A. wrote, at para. 41:

Police conduct can run the gamut
    from blameless conduct, through negligent conduct, to conduct demonstrating a
    blatant disregard for
Charter
rights[.]  What is important is the
    proper placement of the police conduct along that fault line, not the legal
    label attached to the conduct.

[26]

Here, the trial judge found, at para. 18 of his reasons, that
    [t]he nurse provided the information [regarding the respondents urine ethanol
    results] to Constable Robinson after he asked about her readings. The trial
    judge was critical of the police conduct, stating, at para. 20, In effect, the
    police had the answers and then justified their actions after-the-fact by
    getting a warrant. These findings provide this court with a sufficient basis
    upon which to assess the seriousness of the
Charter
-infringing state
    conduct and to place this conduct along the fault spectrum described by Doherty
    J.A. in
Kitaitchik
.

[27]

In my view, the
Charter
-
infringing state conduct
    here was at the serious end of the fault spectrum. The police intentionally
    obtained information from hospital staff in breach of medical confidentiality,
    and relied on that information to obtain a warrant that otherwise could not
    have been issued.

[28]

At trial, Crown counsel acknowledged that if the trial judge were
    to accept the defence position as to how the urine ethanol results were
    obtained, then the first
Grant
factor would lean toward exclusion. In
    fact, in his submissions, when referring to the disclosure of the respondents
    confidential medical information, the trial Crown stated, I will never try to
    defend what this unnamed nurse did. Given that the trial judge found that the
    nurse divulged the confidential medical information because P.C. Robinson asked
    for it, it is difficult to see how the officers conduct can be condoned if the
    nurses conduct was indefensible. Instead, I am of the view that P.C.
    Robinsons conduct in intentionally asking for the confidential medical
    information is precisely the type of conduct from which the court must distance
    itself, irrespective of the fact (which was emphasized by the Crown on appeal)
    that the officer otherwise treated the respondent with courtesy and respect.

[29]

As for the second
Grant

factor  the impact of
    the breach on the
Charter
-protected interests of the accused, the
    trial Crown stated that, on its face, police access to hospital records seems
    to favour exclusion, but later argued that because this evidence was collected
    in a non-intrusive manner, this factor did not lean toward inclusion or
    exclusion.

[30]

In my view, although the respondents confidential medical
    information was not obtained in a physically-intrusive manner, the impact of
    the breach on her informational privacy interest was significant.

[31]

The respondent was in hospital to receive medical care after the
    collision. As a patient, she was vulnerable, forced to reveal information of a
    most intimate character and to permit invasions of [her] body if [she] is to
    protect [her] life or health:
R. v. Dyment
,
    [1988] 2 S.C.R. 417, at p. 433. She was entitled to expect that the police
    would access her medical information only through proper legal channels 
by the 
well-known
    and recognized procedures for obtaining such evidence when the police have
    reasonable and probable grounds for believing a crime has been committed:
Dyment
,
    at p. 439. Instead, the police, with no reasonable and probable grounds to
    believe that the respondent had committed an offence, obtained her medical
    information unlawfully by asking a nurse to divulge the respondents urine
    ethanol results.

[32]

In
Dyment
, the police received the accuseds blood
    samples from a doctor who handed them over at the hospital. La Forest J. described
    the
Charter

breach as serious, stating, at p. 439:

[T]he sense of privacy transcends
    the physical. The
dignity of the
    human being is equally seriously violated when use is made of bodily substances
    taken by others for medical purposes in a manner that does not respect that
    limitation. In my view, the trust and confidence of the public in the
    administration of medical facilities would be seriously taxed if an easy and
    informal flow of information, and particularly of bodily substances from
    hospitals to the police, were allowed.
[1]

[33]

Similarly, in this case a sample of a substance from the
    respondents body  her urine  was taken for medical purposes. It was tested
    for ethanol. Police asked for and received this test result without legal
    authority, and then used this test result for their own, non-medical purpose,
    which was a purpose to which the respondent did not consent. In my view, this
    was a serious violation of the respondents dignity, which strongly favours
    exclusion.

[34]

On appeal, Crown counsel pressed the argument that, without the
    breach relating to how the blood samples were obtained, the effect of the remaining
    breach involving the illegal disclosure of the respondents confidential
    medical information on her
Charter
-protected interests was not so serious
    as to inevitably require the exclusion of the search warrant evidence. She
    relied on
R. v. Erickson
(1992), 72 C.C.C. (3d) 75 (Alta. C.A.), affd
    [1993] 2 S.C.R. 649,
[2]
and
R. v. Culotta
,

2018 ONCA 665, 142 O.R. (3d) 241, affd 2018
    SCC 57,
[3]
as examples of cases where a breach of medical confidentiality did not result
    in exclusion of an accuseds blood samples.

[35]

In
Erickson
, a police officer attended the hospital
    after a head-on motor vehicle collision and asked for and was shown the
    respondents alcohol screen results, which demonstrated a blood alcohol level
    in excess of the legal maximum. Relying on this information, the police officer
    obtained search warrants authorizing the seizure of the respondents hospital
    records and blood sample. Major J.A., as he then was, concluded that the search
    warrants were invalid because they were based on information obtained in
    violation of s. 8 of the
Charter
. Nevertheless, pursuant to the
    then-governing s. 24(2) framework set out in
R. v. Collins
, [1987] 1
    S.C.R. 265, he concluded that the admission of the search warrant evidence
    would not bring the administration of justice into disrepute, because the
    blood sample was real, pre-existing evidence that would have been discovered in
    any event, without any
Charter

violation. The sample would
    have been discovered in any event  because, had the officer not asked for and
    received the alcohol screen results, he still would have had reasonable and
    probable grounds to obtain a search warrant based upon other evidence in the
    case: at pp. 82-83.

[36]

In
Culotta
, following a boating accident, six samples of
    the appellants blood were taken at the hospital. Two samples were taken for
    police purposes without the appellants consent, and were excluded from
    evidence by the trial judge. The trial judge admitted hospital records
    respecting the other four samples. On appeal of her conviction, the appellant
    challenged the admission of her hospital records and certain statements she
    made to the police, based on the cumulative effect of three alleged
Charter

violations, including the unlawful seizure of the two extra samples of
    blood. A majority of this court dismissed the appeal. With respect to the
    medical records, Nordheimer J.A. rejected the assertion that the illegal
    seizure of the two samples that had been excluded from evidence irretrievably
    tainted the hospital records such that they should be excluded. The other four
    vials of the appellants blood were taken and tested for medical purposes. The
    hospital records pertaining to the testing of these samples were seized under a
    valid search warrant, obtained on the basis of reasonable and probable grounds,
    including information from witnesses that shed light on the appellants
    drinking prior to operating the boat, and the officers knowledge that tests
    had been done on the appellants blood that would commonly include tests of
    blood-alcohol concentration: at para. 24.

[37]

In both of these cases, there were reasonable and probable
    grounds, apart from any illegally obtained evidence, for search warrants to
    seize hospital records of the appellants blood alcohol results. In other
    words, the blood sample evidence was discoverable in any event. In this case
    the search warrants depended on the illegally obtained urine ethanol readings;
    the respondents medical records and urine and blood samples were not otherwise
    discoverable.

[38]

In my view, the second
Grant
factor favours exclusion in
    this case.

[39]

As for the third
Grant

factor, there is little
    question that societys interest in an adjudication of the charges against the
    respondent on the merits weighs in favour of inclusion of the illegally
    obtained evidence. The evidence at issue is reliable and essential to the prosecution.
    Once the blood alcohol readings were excluded the Crown elected to call no
    evidence, resulting in the respondents acquittal on serious charges in a case
    where the other driver was killed in the collision.

[40]

In balancing the three
Grant
factors, I am mindful of Brown
    J.s statement in
R. v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, at
    para. 56, that the third
Grant

factor must not be allowed to
    trump all other considerations, particularly where  the impugned conduct was
    serious and worked a substantial impact on the [accuseds]
Charter
right. In my view, this statement applies to the case at bar.

[41]

Intentionally
    obtaining confidential medical information and using it to obtain search
    warrants is serious
Charter
-infringing state conduct from which the
    court ought to distance itself. And, while the illegal disclosure of the
    confidential medical information was not a deliberate intrusion on bodily
    integrity that might serve to exclude the evidence notwithstanding its
    relevance and reliability (
Grant
, at para. 111), the effect on the
    respondent and her interest in informational privacy in a medical context was
    significant. In this case, but for the search warrants the police would not
    have been able to seize the respondents medical records and urine and blood
    samples, and those search warrants depended upon the illegally obtained urine
    ethanol results. Given that the
Charter
-
infringing state conduct
    here was at the serious end of the fault spectrum and the breach significantly
    impacted on the respondents informational privacy interest, the balance tips towards
    exclusion and is not outweighed by societys interest in an adjudication on the
    merits. To admit
the evidence in this case would
    permit the police to obtain evidence illegally, and then, as observed by the
    trial judge, attempt to justify this action by getting a warrant. Public
    confidence in the administration of justice is best served in this case through
    the exclusion of the evidence obtained in violation of the
Charter
.

CONCLUSION AND DISPOSITION

[42]

For the reasons set out above, I have concluded that the trial
    judges reasons are sufficient with respect to the finding that P.C. Robinson
    asked for the respondents urine ethanol results. It follows that these results
    were obtained in violation of s. 8 of the
Charter

and had to be
    excised from the ITO. Without these results, the ITO could not support the
    warrants.

[43]

The trial judge made a finding about the taking of the
    respondents blood at the hospital that is not supported by the evidence.
    Because his s. 24(2) analysis is very general, it is impossible to know what
    weight he gave to this erroneous factor. In conducting the s. 24(2) analysis
    afresh, I have concluded that, because of the seriousness of the
Charter
-infringing
    state conduct and the significant impact of the breach on the
Charter
-protected
    interests of the accused, and notwithstanding societys interest in an
    adjudication on the merits, the admission of the evidence seized pursuant to
    the search warrants would bring the administration of justice into disrepute. Without
    this evidence, the Crown had no case and an acquittal was inevitable.
    Accordingly, I would dismiss the Crowns appeal.

Released: April 3, 2019 DW

K.
    van Rensburg J.A.

I
    agree. David Watt J.A.

I
    agree. David Brown J.A.





[1]

La Forest J. wrote concurring reasons in this case, however
    this passage appears in his s. 24(2) analysis, which was adopted by the
    majority: see p. 441.



[2]
The only issue before the Supreme Court in
Erickson
was the s. 24(2)
    determination. The court agreed with the result reached in the Court of
    Appeal.



[3]
Subsequent to the hearing of this appeal, the Supreme Court released its
    decision in
Culotta
, but its decision does not impact the arguments
    made about the case in this appeal. A majority of the Supreme Court concluded
    that the appeal should be dismissed, substantially for the reasons of
    Nordheimer J.A. for the majority of the Court of Appeal. Abella and Martin JJ.
    would have allowed the appeal, substantially for the dissenting reasons of
    Pardu J.A. Thus, the legal result and reasoning remain the same.


