COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Culotta, 2018 ONCA 665

DATE: 20180725

DOCKET: C63831

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christie Ann Culotta

Appellant

Dirk Derstine, for the appellant

Matthew Asma, for the respondent

Heard: June 21, 2018

On appeal from the conviction entered on May 23, 2017 by
    Justice Gregory M. Mulligan of the Superior Court of Justice, sitting without a
    jury.

Nordheimer J.A.:

[1]

Christie Culotta appeals her convictions on two counts of operating a
    vessel causing bodily harm while having a blood-alcohol content that exceeded 80
    mg of alcohol in 100 ml of blood, contrary to s. 255(2.1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46 (as amended). Four other charges were
    conditionally stayed. The appellant challenges the trial judges conclusions on
    the admissibility of various pieces of evidence that the appellant says were
    obtained in violation of her rights under the
Charter
. She seeks to have
    all of that evidence excluded which would, in turn, lead to her acquittal of
    those two charges.

Background

[2]

On August 1, 2013, at approximately 2:00 a.m., the appellant was
    operating a boat on Lake Muskoka. There were five people in the boat, including
    the appellant. All of the passengers were female. The appellant and her
    passengers had been at a social gathering together and were departing from a yacht
    club, heading toward the appellants family cottage on an island in the lake.

[3]

It was very dark that night as it was raining heavily and there was no
    moonlight. The boat was moving at a relatively high speed, fast enough that the
    hull planed above the water. The boat did not slow down before colliding head on
    with a small rocky island. The bow of the boat incurred major damage, and left
    a white V-shaped mark on the rocks above the water line.

[4]

When the boat crashed, three of the five women were ejected from the
    boat. Two of the women landed on the rock island, and one in the water. All of
    the women were injured, two of them seriously. Help was summoned. All five were
    taken by boat to a nearby marina where ambulances were waiting. The three
    least-injured women, including the appellant, were taken to the same ambulance,
    where they took shelter from the rain and received medical attention from
    paramedics.

[5]

At 3:03 a.m., Officer Tunney of the Ontario Provincial Police (OPP) entered
    the rear of that ambulance. He detected the odour of alcohol. The three injured
    women were in the ambulance along with paramedics. Officer Tunney asked who had
    been driving the boat. One of the women responded Christie. He then asked another
    woman the same question, but the appellant interjected, saying I was the
    driver. The other woman then confirmed, My sister was the driver.

[6]

Officer Tunney asked the appellant whether she had consumed alcohol. She
    replied saying, yes, a vodka and tonic, plus one or two drinks at dinner a
    long time ago. During this interaction in the ambulance, Officer Tunney observed
    the appellant to have watery eyes and noted a slight slurring in her speech
    when she said the word Sir. He could also see that her face was injured. He
    was unable to tell whether the watery eyes were from intoxication, crying, or
    the rain. He was unable to tell whether her slurred speech was from
    intoxication or her facial injury.

[7]

Officer Tunney arrested the appellant at 3:17 a.m. for impaired
    operation of a vessel. He decided not to caution her right away about her right
    to silence, nor to inform her of her right to counsel, because he did not want
    to interfere with the medical care that the three women were receiving.

[8]

The ambulance took the three women to a hospital in Bracebridge, Ontario.
    Officer Tunney followed separately. They all arrived at 3:40 a.m. The women were
    triaged in the emergency department. When he observed a break in the appellants
    treatment, Officer Tunney approached her and read her the standard information
    about her right to counsel, at 3:46 a.m. The appellant said she understood. When
    asked if she wanted to consult a lawyer, she answered, No, my parents should
    be here soon. We have a family lawyer. She did not know the lawyers name and
    said she would talk to her parents when they arrived at the hospital. Next, at
    3:47 a.m., Officer Tunney cautioned her about her right to silence. The
    appellant was not spoken to again by police until 5:30 a.m.

[9]

At 4:14 a.m., Officer Tunney made an attempt to ascertain the name of
    the family lawyer by telephoning the appellants father. However, he was
    unsuccessful in doing so as there was a break in the call. About half an hour
    later, the appellants parents arrived at the hospital.

[10]

During
    this time, the appellant was examined by the on duty emergency room physician
    at 4:10 a.m. He ordered blood tests for medical purposes. One of the tests he
    ordered was to measure blood-alcohol level. At 5:18 a.m., the hospital lab
    technician drew blood from the appellant. The trial judge found that Officer
    Tunney spoke to the lab technician before she drew blood and told her he hoped
    to seal some of the blood for police use. The trial judge found that the lab technician
    drew extra blood beyond what would be needed for medical purposes, intending
    that it be held for police. Nobody sought the appellants consent to draw extra
    blood samples for police use. Two of the six blood vials taken by the lab
    technician were sealed by Officer Tunney.

[11]

At
    5:30 a.m., Officer Tunney returned to the appellants room. The appellants
    father was now present. Officer Tunney told the appellant that she was being
    released unconditionally, but that the investigation would continue. He asked
    her for a statement about what happened. Officer Tunney read her the right to
    counsel information, again, indicating she was under investigation for impaired
    operation of a vessel causing bodily harm and dangerous operation causing bodily
    harm. The appellant said that she understood and that she did not want to
    consult a lawyer. Officer Tunney read the caution about the right to silence. The
    appellant said that she understood and that she wished to give a statement. The
    officer reiterated that the interview was voluntary and that she could consult
    counsel first. The appellant still wanted to speak to police and give her
    statement.

[12]

The
    appellant gave a statement to Officer Tunney starting at 5:40 a.m. The
    interview was conducted as they both sat in an open area of the emergency
    department. The officer wrote down her statement, trying to record it verbatim,
    and then allowed the appellant to read it. She reviewed it, made some
    corrections, and signed it. Officer Tunney gave evidence that, by that time, the
    appellant was able to speak clearly, without slurring, and was very
    cooperative. In her statement, the appellant admitted she was operating the
    vessel and admitted she had consumed some alcohol.

[13]

The
    police investigation continued. Further witness statements were taken over the
    following days. On August 23, Officer Tunney applied for a search warrant to
    seize the sealed vials of blood and the medical records from the hospital. A
    search warrant was granted under s. 487 of the
Criminal Code
. The
    search warrant was executed and the items seized. The blood samples were sent
    to the Centre of Forensic Sciences and were determined to contain 107 mg of
    alcohol per 100 ml of blood. A forensic toxicologist compared that result with
    the hospital labs analysis and, after converting from the units used in the
    hospital report, stated that both tests yielded identical alcohol
    concentrations. The toxicologist also calculated that, based on the ascertained
    blood-alcohol content at 5:18 a.m., the appellants blood-alcohol content when
    the collision occurred at 2:00 a.m. was anywhere from 119 to 172 mg of alcohol
    per 100 ml of blood.

The Rulings at Trial

[14]

The
    trial judge made the following rulings:

(a)

The appellants admissions in the ambulance were made while she was not
    detained and were voluntary.

(b)

The appellants statement at the hospital was made after she declined to
    invoke her right to counsel, when she was no longer under arrest, and was
    voluntary.

(c)

The two extra blood samples were drawn by the lab technician with the
    intention of assisting the police investigation and without the appellants
    consent. They were effectively seized by police once the officer sealed them
    after the blood was drawn. This seizure was unlawful and violated the
    appellants rights under s. 8 of the
Charter
.

(d)

Officer Tunney did not have reasonable grounds to believe the appellant
    had committed an offence when he arrested her at 3:17 a.m. The arrest violated
    her rights under s. 9 of the
Charter
.

(e)

The search warrant was capable of being issued on the grounds provided
    in the affidavit. Although the officer lacked reasonable grounds for arrest on the
    date of the offence (August 1, 2013), he developed reasonable and probable
    grounds through further investigation by August 23, 2013, the date when he
    obtained the search warrant. The seizure of the appellants medical records was
    therefore lawful.

[15]

Following
    these rulings, the trial judge admitted into evidence the appellants statements
    in the ambulance and her statement at the hospital. The trial judge excluded
    the blood samples but he admitted the hospital records. The hospital records
    contained an analysis of the appellants blood-alcohol content that, when related
    back to the time of the accident, placed the appellant over the legal limit.

[16]

Following
    on the trial judges rulings, the appellant re-elected to trial by judge alone.
    The trial judge was invited by both parties to determine the appellants
    culpability based on the evidence he had heard, along with some additional
    photographs. As the parties expected, the trial judge entered findings of guilt
    on two counts of operating a vessel over 80 causing bodily harm.

The Issues

[17]

The
    appellant submits that the trial judge erred:

(a)

by finding that her utterances to Officer Tunney in the ambulance and
    her statements at the hospital were voluntary and no
Charter
infringement occurred;

(b)

by finding that the warrant for her hospital records obtained by Officer
    Tunney was valid;

(c)

by concluding that the hospital records derived from her blood samples
    should not be excluded because her ss. 8 and 10(b)
Charter
rights in
    respect of this evidence were not breached; and

(d)

by failing to give adequate reasons for his s. 24(2) analysis in respect
    of s. 9
Charter
breaches, or more generally.

Analysis

(a)

The utterances and the statements

[18]

I
    do not see any error in the conclusions reached by the trial judge regarding
    the admissibility of either of the statements made by the appellant. In
    considering this issue, I begin by noting the point made by Iacobucci J. in
R.
    v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3 where he said, at para. 71:

If a trial court properly considers all the
    relevant circumstances, then a finding regarding voluntariness is essentially a
    factual one, and should only be overturned for some
palpable and overriding
error which affected [the trial judges] assessment of the facts

[Original emphasis. Citation omitted.]

[19]

In
    terms of the statements made in the ambulance, I agree with the trial judges
    conclusion that the statements were voluntary. Indeed, the appellant made the
    statement that she had been driving the boat without even being asked. I do not
    agree with the appellants submission that she was detained, while in the
    ambulance, prior to the point when she was arrested. The appellant was in the
    ambulance, not through any actions of the police, but to receive medical
    treatment: see
R. v. LaChappelle
, 2007 ONCA 655, 226 C.C.C. (3d) 518,
    at para. 42. She was not, therefore, detained by the police at that time. The
    mere presence of a police officer in these circumstances does not constitute a
    detention.

[20]

Further,
    at the time that Officer Tunney entered the ambulance, he did not know if any
    criminal offence had been committed. He was just beginning his investigation
    into the conduct surrounding the collision of the boat on the rocks. In
    embarking on that investigation, Officer Tunney was entitled to interview the
    persons involved and to ask them questions. There was no reason, at that point
    in time, for Officer Tunney to inform any of the individuals with whom he spoke
    of their
Charter
rights. As McLachlin C.J.C. and Charron J. said in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 38:

In the context of investigating an accident or a
    crime, the police, unbeknownst to them at that point in time, may find
    themselves asking questions of a person who is implicated in the occurrence
    and, consequently, is at risk of self-incrimination. This does not preclude the
    police from continuing to question the person in the pursuit of their
    investigation. Section 9 of the
Charter
does not require that police
    abstain from interacting with members of the public until they have specific
    grounds to connect the individual to the commission of a crime. Nor does s. 10
    require that the police advise everyone at the outset of any encounter that
    they have no obligation to speak to them and are entitled to legal counsel.

[21]

I
    also do not accept the appellants criticism that the trial judge failed to
    provide meaningful reasons regarding his conclusion with respect to the
    ambulance statements. The trial judge expressly stated that the appellant was
    in the ambulance for legitimate medical reasons and was not detained by the
    police.

[22]

In
    terms of the statement in the hospital, the appellant was fully informed of her
    right to counsel prior to giving that statement. The appellant expressly
    declined to consult with counsel. There can be no reasonable challenge to the
    trial judges conclusion that the hospital statement was voluntary.

[23]

I
    also reject the appellants suggestion that the voluntariness of her statement
    is, in some fashion, suspect because it was not audio or video recorded. The
    suggestion that this ought to have happened in this case ignores the reality of
    the location where the statement was taken  a hospital emergency department. It
    is unrealistic to expect audio or video recordings to be made in that context. Reducing
    the statement to writing, and having it reviewed and acknowledged by the
    appellant, was the realistic and appropriate way to record her statement. I
    would add, on this point, that non-recorded interrogations are not inherently
    suspect:
Oickle
, at para. 46.

(b)

The search warrant with respect to medical records

[24]

Subject
    to my s. 10(b) analysis below, I also agree with the trial judges conclusion
    that the hospital records were properly obtained pursuant to the search
    warrant. The officer had reasonable grounds to believe that the hospital
    records contained evidence relevant to the charges. In particular, the officer
    knew that tests had been done on the appellants blood that would commonly
    include tests regarding the appellants blood-alcohol concentration. On this
    point, it is important to note that the officer obtained information from other
    witnesses, subsequent to the night of the arrest, which shed further light on the
    appellants drinking prior to operating the boat.

(c)

The blood sample evidence and alleged
Charter
breaches

[25]

It
    became apparent at the appeal hearing that the key issue advanced by the
    appellant was that the blood sample evidence, that is all of the vials of blood
    taken from the appellant at the hospital, was obtained following a breach of
    the appellants s. 10(b) rights. In advancing this argument, the appellant
    relies almost exclusively on the decision in
R. v. Taylor
, 2014 SCC
    50, [2014] 2 S.C.R. 495.

[26]

Section
    10(b) of the
Charter
reads:

10. Everyone has the right on arrest or detention

[]

(b) to retain and instruct counsel without delay
    and to be informed of that right

[27]

As
    the Supreme Court held in
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R.
    460, at para. 38, s. 10(b) imposes two duties on the police  an informational
    duty and an implementational duty:

The informational duty requires that the detainee
    be informed of the right to retain and instruct counsel without delay. The
    implementational obligation [] requires the police to provide the detainee
    with a reasonable opportunity to retain and instruct counsel.

[28]

The
    informational duty must be discharged immediately upon detention to minimize
    the risk of self-incrimination:
Suberu
, at para. 41. The
    implementational duty requires the police to refrain from eliciting
    incriminatory evidence from the detainee until [the detainee] has had a
    reasonable opportunity to consult counsel or has unequivocally waived the
    right to do so:
Suberu
, at para. 38. See also a more recent review of
    these principles in
Taylor
, at paras. 23-26.

[29]

Satisfaction
    of the informational duty may be complicated in certain cases where the
    detainee positively indicates a failure to understand his or her rights to
    counsel:
R. v. Evans
, [1991] 1 S.C.R. 869, at p. 891; and
R. v.
    Willier
, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 31. In such cases, the
    police cannot rely on a mechanical recitation of those rights; they must make a
    reasonable effort to explain those rights to the detainee:
Evans
, at
    p. 892.

[30]

Here,
    Officer Tunney informed the appellant of her rights to counsel at 3:46 a.m. When
    Officer Tunney asked the appellant whether she wanted to speak to a lawyer, the
    appellant responded:

No, my parents should be here soon. We have a
    family lawyer.

[31]

Officer
    Tunney said that the appellant did not know the name of the family lawyer. Officer
    Tunney also said that the appellant said that she would talk to her parents
    when they arrived at the hospital.

[32]

It
    should be noted, on this issue, that Officer Tunney admitted that he had
    concerns whether the appellant was fully understanding what he was telling her
    at the time that he read her rights to counsel. In his notes, Officer Tunney
    recorded:

not sure if [the appellant] fully understands
    her situation.

[33]

In
    light of this concern, Officer Tunney was asked, in cross-examination, whether
    he tried to explain the rights to counsel in other words. Officer Tunney said
    that he did not at that time.

[34]

This
    case therefore engages both the informational and implementational duties of
    the police in providing the appellant with her rights to counsel: (i) did
    Officer Tunney inform the appellant of her rights to counsel upon detention;
    (ii) did the appellant understand those rights; and (iii) did Officer Tunney
    refrain from eliciting evidence from the appellant until she had a reasonable
    opportunity to consult counsel? I analyze (ii) and (iii) together as they are
    intimately intertwined.

(i)

Did Officer Tunney inform the appellant
    of her rights to counsel upon detention?

[35]

The
    answer to the first inquiry in this case is definitively no. The appellant
    was arrested at 3:17 a.m. but she was only informed of her s. 10(b) rights at
    3:46 a.m. Although Officer Tunney may have had innocent  even benevolent
    reasons for his delay, there can be no doubt that this suspension violated the
    appellants rights to retain and instruct counsel without delay (or
    immediately) upon detention. However, nothing of any consequence flows from
    that technical breach of s. 10(b) as I shall come to explain when I address the
    s. 24(2) issues. The real contest in this case concerns the latter two
    questions.

(ii)
    (iii)     Did the appellant understand her rights to counsel? And did Officer
    Tunney provide a reasonable opportunity to consult counsel before eliciting
    evidence?

[36]

It
    is of some significance, in my view, that the appellant did not give evidence
    on the
voir dire
dealing with the
Charter
challenges to the
    admissibility of all of this evidence. We are therefore left trying to divine
    the appellants understanding of her rights from the evidence that we do have
    which is, principally, the evidence of Officer Tunney.

[37]

The
    answer to the comprehension question would be more complicated had Officer
    Tunneys uncertain note been the only evidence on the issue. The record,
    however, demonstrates at least two other instances from which the appellants
    comprehension can be gleaned: at 3:46 a.m. and 5:30 a.m. on the morning of the
    arrest. At both times, Officer Tunney informed the appellant of her right to
    counsel and, at both times, the appellant affirmatively rejected invoking her
    rights.

[38]

It
    should be remembered that the police do not have a duty to positively ensure
    that a detainee understands what the rights under s. 10(b) entail. Officers are
    only required to communicate those rights to the detainee. As the Supreme Court
    has repeatedly held, absent special circumstances indicating that a detainee
    may not understand the s. 10(b) caution, such as language difficulties or a
    known or obvious mental disability, police are not required to assure
    themselves that a detainee fully understands the s. 10(b) caution:
R. v.
    Bartle
, [1994] 3 S.C.R. 173, at p. 193. See also
R. v. Baig
,
    [1987] 2 S.C.R. 537, at p. 540;
Evans
, at p. 891;
R. v. Feeney
,
    [1997] 2 S.C.R. 13, at paras. 108-09
per
LHeureux-Dubé (dissenting);
    and
Willier
, at para. 31.

[39]

In
    the circumstances of this case, it was reasonable for Officer Tunney to infer
    that the appellant understood her s. 10(b) rights  notwithstanding his
    uncertain note. I am satisfied that the appellant understood Officer Tunneys
    delayed communication of her s. 10(b) rights. The totality of the record
    evinces no other reasonable conclusion that can be drawn from the evidence.

[40]

Another
    factor complicating this issue is that the trial judge did not address it in
    his reasons, even though it was fully argued before him. Indeed, in his reasons,
    the trial judge noted that one of the orders being sought was a declaration
    that the appellants blood and medical records were seized in breach of her ss.
    8, 9, and 10 rights. Nevertheless, the parties say that we are in the same
    position, as the trial judge was, to determine this issue since the same
    evidence is before us. While that is largely true, we are still at a
    disadvantage because we do not have the benefit of having heard from the
    witnesses directly.

[41]

That
    said, I do not agree with the appellant that this case mirrors
Taylor
and that the same result should be reached, that is, that the implementational
    component of the appellants s. 10(b) rights was breached and thus the blood
    sample evidence should be excluded. There are two fundamental differences
    between the situation here and the one that presented itself in
Taylor
.

[42]

First,
    after being advised of his rights to counsel, Mr. Taylor expressly requested to
    speak to his lawyer. The appellant did not. Indeed, the appellant said No in
    response to Officer Tunneys question whether she wished to speak to a lawyer. Contrary
    to the appellants submissions, in my view the appellant did not invoke her
    rights to counsel, at that time, such that the police should have withheld
    undertaking any further investigation as it related to the appellant.

[43]

Second,
    unlike the situation here, Mr. Taylor was not injured. He did not require
    medical treatment. Indeed, Mr. Taylor was only taken to the hospital as a
    precaution:
Taylor
, at para. 7. In contrast, the appellant was
    injured. She required medical attention and treatment. It was in the course of
    that treatment, and as a direct result of it, that the appellants blood was
    taken.

[44]

In
Taylor
, on a number of occasions, Abella J. stressed that the right to
    counsel arises immediately upon such a request being made. For example, at
    para. 24, Abella J. said:

The duty to inform a detained person of his or
    her right to counsel arises immediately upon arrest or detention [] and the
    duty to facilitate access to a lawyer, in turn, arises immediately
upon the
    detainee's request
to speak to counsel.

[Emphasis added.]

[45]

This
    point is again made at para. 25:

This means that to give effect to the right to
    counsel, the police must inform detainees of their s. 10(b) rights
and
facilitate access to those rights
where requested
, both without delay.

[Underlining added. Italics in original.]

[46]

Here,
    the fact is that the appellant did not ask to speak to a lawyer. Quite the
    contrary, she said that she did not wish to speak with a lawyer. Counsel
    attempts to avoid this problem by suggesting that the appellant may not have
    fully understood her rights. Counsel contends that that possibility, along with
    the ambiguous nature of her response to the question, are sufficient to invoke
    the appellants s. 10(b) rights. As a consequence, the submission goes, the
    police ought to have held off taking any further investigatory steps, including
    obtaining the appellants blood.

[47]

But,
    as I have explained above, I do not accept the appellants position that her s.
    10(b) rights were invoked and then breached. I have already said that the
    appellant did not request to speak to a lawyer. Further, after being informed
    of the right to silence (directly after her rights to counsel), the appellant
    said that she understood those rights and then added Im not drunk. She also
    asked the officer whether she would get to blow into one of those machines to
    prove that Im not drunk. It is clear from these exchanges, and from other evidence,
    that the appellant was well aware that she was being investigated by the police
    regarding a possible criminal offence,
i.e
.
, impaired or over
    80 operation of a vessel.

[48]

Further,
    I note the salient fact that, less than two hours later when the appellant was
    again given her rights to counsel, she expressly declined to speak to a lawyer
    and gave a statement to the officer. It is difficult to reconcile that evidence
    with the contention that the appellant was earlier invoking her right to
    counsel, or that she did not understand her rights to counsel.

[49]

Given
    that the appellant affirmatively rejected invoking her rights to counsel,
    Officer Tunney was not required to refrain from furthering his investigation
    until the appellant had a reasonable opportunity to consult counsel. Officer
    Tunney did not breach the implementational component of the appellants s.
    10(b) rights.

[50]

Moreover,
    I also reject the central tenet of the appellants argument: that the blood
    technician was acting as an agent of the state,
i.e
.
, of the
    police, in furthering the investigation by taking vials of blood after the alleged
    breach of the appellants s. 10(b) rights.

[51]

It
    is a relevant fact on this issue that it was not the police who sought and
    obtained the blood samples. Rather, it is clear that the blood samples were
    taken at the express direction of the emergency room physician. It is difficult
    to see, in those circumstances, how any breach of the appellants s. 10(b)
    rights by the police (if there had been one) could implicate the steps taken by
    the physician. There is no evidence that the physician knew of any of the
    interactions between the police and the appellant.

[52]

On
    this latter point, the appellant submits that if her s. 10(b) rights had not been
    breached, she might have spoken with a lawyer; she might in turn have received
    advice not to provide any blood samples (or certainly no samples for the
    purpose of determining blood-alcohol levels); and she might then have advised
    the emergency room physician that she would not consent to any blood samples
    being taken.

[53]

The
    problems with that submission are four-fold. First, I have already determined
    that the appellants s. 10(b) rights were not invoked and then breached. Second,
    we do not know what the appellant would have done with any advice that she
    might have obtained, assuming the advice was not to consent to blood samples
    being taken. As is often pointed out, the nice thing about advice is that you
    do not have to take it. Third, we do not know what discussion there was between
    the appellant and the emergency room physician regarding her medical condition nor
    do we know what discussion there would have been if the appellant had told the
    emergency room physician that she did not want blood samples taken. If the
    emergency room physician explained to the appellant how the blood samples were necessary
    for her medical treatment, and/or to identify the seriousness of her injuries,
    the appellant might well have decided to permit the blood samples to be taken. I
    note that people generally place their health before just about any other
    concern. Fourth, I reiterate that we have no evidence from the appellant
    regarding what she would, or would not, have done in these circumstances. In
    the end result, this entire submission is based on nothing but speculation.

[54]

I
    turn to the appellants contention that the lab technician was acting at the
    behest of the police when she took the blood samples. I do not accept that
    contention. The evidence is clear that the blood was taken, at least in respect
    of four of the six vials, at the express direction of the emergency room
    physician. The physician not only expressly directed that the blood samples be
    taken but that they be tested for, among other things, blood-alcohol content.

[55]

The
    evidence with respect to the other two vials of blood is somewhat confused. The
    blood technician, who had no direct memory of the particular events of that
    day, said that it was her practice to take more blood than she was directed to
    do by the physician in case blood was subsequently needed for other tests. The
    blood technician could not remember whether that is why she took the extra two
    vials of blood in this case. Indeed, her direct evidence on this point was:

Usually in trauma situations where a patient
    comes in, Ill draw multiple vials on a patient in case the doctor adds tests
    to them.

[56]

There
    is no doubt that Officer Tunney spoke to the blood technician about the taking
    of the blood and of his desire to seal some of the blood vials for police use. However,
    Officer Tunney was clear that he did not ask the blood technician to take extra
    blood for police purposes.

[57]

The
    appellant asserts that the trial judge found that the blood technician acted at
    the behest of the police and that this court is bound by that factual finding. That
    assertion does not find a foundation in the reasons, fairly read. The only
    place where the trial judge could be seen as making such a finding is at para.
    57, where he said:

The lab technician, charged with obtaining blood
    samples for medical purposes, was co-opted into taking samples for police
    purposes at the urging of the investigating officer.

[58]

However,
    that sentence has to be read in the context of the reasons as a whole. What is
    clear from reading the reasons in their totality is that the trial judge was
    focused on the
sealing
of the blood vials constituting a seizure under
    s. 8, not the
taking
of the blood. Indeed, right before the above
    quotation from para. 57, the trial judge said:

In my view, on the evidence here, the
sealing
of additional blood vials amounted to serious state conduct infringing upon the
    applicants
Charter
rights.

[Emphasis added.]

[59]

I
    also reject the appellants secondary argument that, even if it was only the
    two vials of blood that were seized in breach of the appellants s. 10(b)
Charter
rights, that breach irretrievably tainted the hospital records such that they
    should be excluded. I have already reviewed why the blood samples were taken,
    that is, at the direct instruction of the emergency room physician. Whether the
    lab technician did or did not take other blood samples for the police, some
    blood would have been taken from the appellant, and it would have been tested
    for blood-alcohol concentration regardless. Consequently, the
Charter
infringement regarding the two vials of blood is independent of the other blood
    samples taken. The exclusion of one does not undermine the admissibility and evidentiary
    value of the other.

(d)

Adequacy of reasons

(i)

Absence of s. 24(2) analysis with respect to s. 9 breach

[60]

I
    do not accept the appellants complaint that the trial judge was required to undertake
    a separate s. 24(2) analysis arising from the s. 9
Charter
breach. No
    evidence proffered by the prosecution was obtained during the time period that the
    appellant was improperly put under arrest. The ambulance utterances occurred
    before the arrest, and the hospital statement occurred after the appellant had
    been told that she was unconditionally released. There was simply no reason for
    the trial judge to undertake a s. 24(2) analysis regarding the wrongful arrest.
    However, that conclusion does not mean that the wrongful arrest does not factor
    into the necessary s. 24(2) analysis based on the cumulative effect of all of
    the
Charter
breaches, a subject I will come to in a moment.

(ii)

Inadequacy of reasons generally

[61]

I
    also reject any generic challenge to the alleged inadequacies of the trial
    judges reasons for the various
Charter
rulings that he did make. The
    reasons explain why the trial judge made the rulings that he did, provide
    public accountability, and allow for meaningful appellate review:
R. v.
    R.E.M
.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 11. Nothing more
    is required.

(iii)

Absence of s. 24(2) analysis on the breaches cumulatively

[62]

The
    respondent accepts that, if the trial judge failed to conduct a s. 24(2)
    analysis that took into account the cumulative effect of the various
Charter
breaches, then that is an error that requires this court to conduct a fresh
    analysis. Unfortunately, the trial judge did not undertake that cumulative s.
    24(2) analysis. As a consequence, this court must do so.

[63]

The
    proper considerations under s. 24(2) were established in
Grant
, at para.
    71. The court must consider: (i) the seriousness of the
Charter
-infringing
    state conduct; (ii) the impact of the conduct on the accuseds
Charter
-protected
    interests; and (iii) societys interest in the adjudication of the case on its
    merits.

[64]

In
    this case, there are three
Charter
violations to be considered. First,
    the arrest without sufficient grounds, violating the appellants s. 9
Charter
right from 3:17 a.m. to 5:30 a.m. Second, the failure to inform the appellant
    of her right to consult counsel without delay, violating her s. 10(b)
Charter
rights from 3:17 a.m. to 3:46 a.m. Third, the unlawful seizure of the two extra
    vials of blood, violating her s. 8
Charter
right to privacy.

[65]

In
    my view, both the first and second
Charter
violations are of middling
    seriousness. They are certainly far from the most extreme end of the seriousness
    spectrum. While the appellant was wrongfully arrested, nothing occurred as a
    consequence of that act. The appellant was not held in a detention cell or
    taken to court. In terms of her right to counsel, no statements were sought or
    taken while she was under arrest nor was any other information obtained from
    her during this period. Consequently, the impact on the
Charter
-protected
    interests of the appellant was minimal. The third violation was admittedly much
    more serious. Taking bodily samples from an individual in breach of their
    constitutional rights is a very serious violation of a persons bodily
    integrity:
R. v. Stillman
, [1997] 1 S.C.R. 607, at para. 51. However,
    that evidence was excluded by the trial judge and, thus, not only did it not prejudice
    the appellant in terms of the charges laid, there has also been a measure of
    vindication for the
Charter
breach. Further there is no evidence in
    this case that the actions of Officer Tunney, in relation to the blood samples,
    reflect a systemic disregard of individual rights by the police.

[66]

On
    the other side of the s. 24(2) scale is the fact that the blood-alcohol
    evidence, obtained through the hospital records, is real and reliable evidence.
    It is critical to the Crowns case on the operating over 80 causing bodily
    harm offences. Without that evidence, the Crown acknowledges that those offences
    could not be made out. The fact that there may be other offences that the Crown
    could still pursue does not lessen the impact of the exclusion of the blood
    evidence as it relates to these serious offences.

[67]

Further,
    the
Charter
violations that occurred were almost entirely the result
    of the fact that Officer Tunney was a fourth-class rookie constable conducting
    his first investigation of an over 80 operation of a boat causing bodily harm
    case. He candidly acknowledged the mistakes that he made and volunteered that
    he would now do things differently with the experience that he has since
    gained. Good faith honest errors by the police represent less serious
Charter
infringements. On this point, I do not accept the appellants contention that
    the officers actions improperly interfered with the appellants medical
    treatment. There is simply no evidence to substantiate that contention. Indeed,
    the trial judge found, at para. 71, that Officer Tunney treated the appellant
    with respect and dignity, and allowed proper medical treatment to be offered
    to her as needed.

[68]

Consequently,
    the
Charter
breaches in this case do not represent conduct from which the
    court must disassociate itself:
Grant
, at para. 75. This is also not a
    case, such as
R. v. Pino
, 2016 ONCA 389,130 O.R. (3d) 561, where the
Charter
breaches were exacerbated by the fact that the police engaged in falsehoods
    regarding their conduct associated with the
Charter
violations.

[69]

In
    my view, excluding the ambulance utterances, hospital statements, and the
    hospital records, due to the combined
Charter
breaches, in these
    circumstances, would not enhance the repute of the administration of justice. To
    the contrary, it would have the effect of permitting the appellant to walk away
    from very serious offences involving the over 80 operation of a vessel that
    resulted in serious injuries to two individuals. In addition, these violations do
    not demonstrate a pattern or attitude of disregard for
Charter
rights,
    or for the law generally, by the police. To the contrary, Officer Tunney
    appears to have acted, at all times, with consideration for the appellants
    situation and a desire to respect her rights while, at the same time,
    conducting his investigation.

Conclusion

[70]

In
    the end result, I would not give effect to any of the grounds of appeal. The
    appeal is dismissed.

I.V.B. Nordheimer J.A.

I agree. C.W. Hourigan J.A.

Pardu J.A. (Dissenting):

[71]

The affront to human dignity embodied in a
    police officers co-opting a lab technician into taking blood samples for
    police purposes when the technician was taking blood samples to carry out a
    physicians orders is so serious that in my view, the hospital records of the
    analysis of the appellants blood should be excluded, despite the absence of a
    direct causal connection between the multiple breaches of the
Canadian Charter of Rights and Freedoms
and the creation
    of hospital records containing the blood analysis.

[72]

The finding of fact by the trial judge, at para.
    57, was not challenged on appeal by either the Crown or the defence:

The lab technician, charged with obtaining blood
    samples for medical purposes, was co-opted into taking samples for police
    purposes at the urging of the investigating officer.

[73]

The trial judge also concluded, at para. 54,
    that the sealing of the blood samples amounted to an immediate seizure of a
    bodily sample in clear violation of the applicants s. 8
Charter
right.

The
Charter
breaches

[74]

The majority has identified, at para. 64, the
Charter
breaches to be considered:

1.
The arrest without reasonable and
    probable grounds to believe the appellant had committed an offence,
violating
    her s. 9
Charter
right
.

2.
The failure to inform the appellant of
    her right to counsel from 3:17 a.m. to 3:46 a.m.,
violating her s. 10(b)
Charter
rights.

3.
The unlawful seizure of two extra vials
    of blood,
violating the appellants s. 8
Charter
right
.

[75]

To that list I would add another violation. The
    Crown concedes that the trial judge made no finding about the appellants
    alleged assertion of her right to counsel, and both parties ask us to come to
    our own conclusions on the basis of the record before us.

[76]

I would hold that the appellant did invoke her
    right to counsel when she responded to the officers question as to whether she
    wanted to speak to a lawyer now by saying no, my parents should be here
    soon. We have a family lawyer. This could be reasonably understood as a
    statement that she was going to get the name of a lawyer from her parents, and
    that is the person to whom she wished to speak. The officer understood that was
    her intention; he attempted to contact the appellants father to get the name
    of the lawyer, but the telephone connection was lost through no fault of the
    officer.

[77]

Despite this communication the officer went on
    to co-opt the lab technician into taking extra samples of the appellants
    blood, despite his duty to hold off until the appellant had an opportunity to consult
    counsel:
R. v. Taylor
,
2014 SCC 50, [2014]
    2 S.C.R. 495, at
para. 26.

[78]

The officer noted his concern that the appellant
    was disoriented and that she might not fully understand her situation. She had
    been injured in the accident. Her response to the officers question contained
    sufficient indication of an intention to consult counsel, that the officer
    should have refrained from taking further steps to gather evidence from her
    until she either clearly indicated she did not want to consult counsel, or until
    she had the opportunity to do so.

[79]

This communication is not the functional
    equivalent of an answer like no, not right now, not now, can I think about
    that or silence, which have in other cases been treated as a failure to invoke
    the right to counsel or a refusal to do so:
R. v. Owens
, 2015 ONCA 652,
127 O.R. (3d) 603,
at
    paras. 2-3, 5, 22-31;
R. v. Fuller
, 2012 ONCA 565, 295 O.A.C.
    309, at paras. 17-19, 32;
R. v. Green
, 2003 BCCA 639, 192 B.C.A.C. 164,
    at para. 3;
R. v. Knoblauch
, 2018 SKCA 15, 20 M.V.R. (7th) 203, at
    paras. 32, 39-49.

Were the hospital records obtained
    in a manner that requires a s. 24(2) analysis?

[80]

I recognize that there is no causal connection
    between the
Charter
breaches and the creation of
    the hospital records. The hospital samples, as distinguished from the police
    samples, were taken on a physicians instruction.

[81]

The same issue arose in
Taylor
.

[82]

In
Taylor
, an
    accused indicated he wanted to speak to counsel, but was not given the
    opportunity to do so. He was taken to the hospital and medical staff took five
    vials of blood from him for medical purposes. Police demanded and obtained a
    second set of blood samples for investigative purposes. The trial judge
    excluded the analysis of the police blood samples because of the
Charter
breach  the failure to provide access to counsel  but admitted
    the analysis of the hospital samples. Writing for the Supreme Court of Canada,
    Abella J. held that both the hospital blood analysis and the police blood
    analysis should be excluded and observed, at paras. 40 and 41:

Moreover, the impact of the breach on Mr.
    Taylors Charter -protected interests was serious. Arrested individuals in
    need of medical care who have requested access to counsel should not be
    confronted with a Hobsons choice between a frank and open discussion with
    medical professionals about their medical circumstances and treatment, and
    exercising their constitutional right to silence. The police placed
    Mr. Taylors medical interests in direct tension with his constitutional rights.
     His legal vulnerability was significant, and, correspondingly, so was his need
    for his requested assistance from counsel.

There is no need to speculate about the advice
    Mr. Taylor might have received had he been given access to counsel as he
    requested, such as whether he would have refused to consent to the taking of
    any

blood samples for medical purposes. It is clear that the denial of
    the requested access had the effect of depriving him of the opportunity to make
    an informed decision about whether to consent to the routine medical treatment
    that had the potential to create  and in fact ultimately did create
    incriminating evidence that would be used against him at trial. The impact of
    the breach on Mr. Taylors s. 10(
b
) rights was exacerbated when Mr. Taylor
    was placed in the unnecessarily vulnerable position of having to choose between
    his medical interests and his constitutional ones, without the benefit of the
    requested advice from counsel. Mr. Taylors blood samples, taken in direct
    violation of his right to counsel under s. 10(
b
), significantly
    compromised his autonomy, dignity, and bodily integrity. This supports the
    exclusion of this evidence. As this Court said in
Grant
, it may be
    ventured in general that where an intrusion on bodily integrity is deliberately
    inflicted and the impact on the accuseds . . . bodily integrity and dignity is
    high, bodily evidence will be excluded, notwithstanding its relevance and
    reliability (para. 111).

[83]

Here, police obtained a warrant for the hospital
    blood analysis records, however as noted in
Taylor
, at para. 36: police should not be able to circumvent the duty to
    implement an arrested individuals s. 10(b) rights by attempting to cure any
    tainted evidence with a warrant authorizing its seizure.

[84]

R. v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561
is also helpful when considering the impact of
Charter
breaches on the exclusion of evidence where there is no causal link
    between the breaches and the collection of the evidence. In
Pino
, officers violated the
Charter
initially, by their overly aggressive execution of an arrest. Police then
    immediately searched the accuseds car, and found
marijuana
. They then failed to advise the accused properly of her rights to
    counsel and kept her incommunicado for roughly five and a half hours. Despite
    the fact that the marijuana was found before the violations of s. 10(b) of the
Charter
, Laskin J.A. concluded that there was a sufficient temporal and
    contextual connection between the obtaining of the evidence and the
Charter
breaches to warrant application of s. 24(2). He noted, at para. 72,
    the following considerations should guide a courts approach to the obtained
    in a manner requirement in s. 24(2):

·

The approach should be generous, consistent with
    the purpose of s. 24(2)

·

The court should consider the entire chain of
    events between the accused and the police

·

The requirement may be met where the evidence and
    the
Charter
breach are part of the same transaction or course of
    conduct

·

The connection between the evidence and the breach
    may be causal, temporal, or contextual, or any combination of these three
    connections

·

But the connection cannot be either too tenuous or
    too remote.

[85]

R. v. Lachappelle,
2007 ONCA 655, 226 C.C.C. (3d) 518
is also instructive. An accused alleged,
inter alia,
that his s. 10(b) rights to counsel were violated because he did not
    receive competent advice from duty counsel. Hospital blood samples taken solely
    for medical purposes were lawfully sealed by police before the accused had
    finished speaking to duty counsel. The
Charter
breach
    complained of related to duty counsel, not the police. There, the absence of a
    factual or temporal connection between the breach, if it existed, and the
    evidence meant that no analysis under s. 24(2) was required. Rosenberg, J.A.
    noted at para. 47:

In
R. v. Strachan
(1988), 46
    C.C.C. (3d) 479 (S.C.C.), at 495, Dickson C.J.C. held that s. 24(2) is
    triggered, "if the infringement or denial of the right or freedom has
    preceded, or occurred in the course of, the obtaining of the evidence. It is
    not necessary to establish that the evidence would not have been obtained but
    for the violation of the Charter." See also
R. v. Goldhart
(1996),
    107 C.C.C. (3d) 481(S.C.C.) at paras. 34-40. But here the trial judge
    found that the vials had already been sealed and were no longer within the
    appellant's control when he finished talking to duty counsel.
There was no
    factual or temporal connection
between the alleged breach and the obtaining
    of the evidence; the evidence had already been obtained before the alleged
    breach of the appellant's rights because of the incompetent legal advice.
    [Emphasis added].

[86]

Conversely, in this case, as is conceded in oral
    argument by the Crown, there was a sufficient contextual and temporal
    connection between the hospital blood analysis and the
Charter
breaches to require an analysis under s. 24 (2) as to whether that
    evidence should be excluded. All of the breaches occurred in a short period of
    time and related to seizure of the appellants blood, or records about the
    analysis of her blood.

Should
    the hospital records be excluded?

[87]

I turn then to the analysis mandated by
R.
    v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353
.
The
    Crown acknowledges that the trial judge did not consider the cumulative effect
    of the
Charter
breaches in his s. 24(2)
    analysis, and again both parties invite this court to come to our own
    conclusions on that issue.

The seriousness of the breach

[88]

Co-opting extra blood samples was a serious
    breach by police. There are statutory regimes prescribed for the taking of
    breath or blood samples where impaired driving offences are suspected. These
    regimes must be well known to police. For police to sidestep these procedures
    by inserting themselves into an accused persons medical care is a grave
    misstep. The violation is made that much worse when committed after the
    appellant had invoked her right to counsel at a time when police were under a
    duty to refrain from taking such steps.

[89]

The other
Charter
breaches are relevant, but do not materially add to the seriousness of the
    breach described above. Some allowance should be made for the chaos following
    the boating accident and the injuries, in the early morning hours, on an island
    and during a torrential downpour.

[90]

I would not excuse the
Charter
breaches because the officer was inexperienced. He had a senior
    officer with him at the hospital who was guiding his steps. There is concern
    that this was not an isolated incident. This particular hospital had a tray
    kept in the laboratory refrigerator reserved for police blood samples, and had
    created a form for use when blood samples were taken at the behest of police.

Impact on the
Charter
-protected interests of the appellant

[91]

The co-opting of a lab technician taking blood
    samples on a physicians instruction in order to take additional samples for a
    police investigation is an invasion of the appellants bodily integrity and
    dignity of the utmost seriousness, at a time when she was vulnerable because of
    her need for medical attention.

[92]

As the trial judge noted, at para. 51, the
    Supreme Court has been highly critical of overly cozy arrangements between
    police and medical staff.

[93]

In
R. v. Colarusso
, [1994] 1 S.C.R. 20, the Supreme Court reviewed loose arrangements
    between hospitals and police regarding the seizure of blood samples. On the
    facts of that case, at para. 28, the majority noted:

The presence of the police officer in the
    emergency room in such circumstances can only serve to undermine the
    physician-patient relationship, as the accused would likely interpret these facts
    that the medical staff was operating in conjunction with the police
    investigation. Such a scenario would have catastrophic results if an accused
    resisted essential treatment for fear it might incriminate him in future
    criminal proceedings. Although I have not categorized the assistance of the
    police officer at this early stage as a seizure, I would emphasize that such
    complicity is at best unwise and should be avoided at all times unless the
    assistance of the police officer is necessary in order to give essential
    medical treatment because of exigent circumstances. In this situation, the
    presence of the officer was unwarranted, as the hospital staff could have
    obtained a sample themselves. The following words used in
Dyment
at p.
    434 are especially apt here:

Under these circumstances, the courts must
    be especially alert to prevent undue incursions into the private lives of
    individuals by loose arrangement between hospital personnel and law enforcement
    officers. The
Charter
, it will be remembered,
    guarantees the right to be secure against unreasonable searches and seizures.

Societys interest in adjudication
    on the merits

[94]

The blood analysis is reliable evidence, but its exclusion would not
    bring to an end the Crowns case. The charge of impaired operation of a vessel
    causing bodily harm could proceed if the over 80 charges were dismissed as this
    charge was conditionally stayed by application of the rule precluding multiple
    convictions:
R. v. Kienapple
, [1975] 1 S.C.R. 729;
R. v. Letendre
(1979), 46 C.C.C. (2d)
    (B.C.C.A.);
R. v. McLeod
(1983), 6 C.C.C. (3d) 29 (Ont. C.A.);
Criminal Code,
s. 686(8),
R.S.C., 1985, c. C-46
. The Crown has evidence that the appellant was operating the boat,
    and that she had been drinking. Her friends in the boat were injured.
    Conviction will follow if the Crown can prove to the criminal standard, that
    the appellants ability to operate a boat was impaired to any degree, ranging
    from slight to great:
R. v. Stellato,
[1994] 2 S.C.R. 478.

Overall balancing

[95]

I would conclude that admission of the hospital
    blood analysis records would bring the administration of justice into
    disrepute, given the gravity of the invasion of the appellants
Charter-
protected interests. The purpose of exclusion is not to punish
    police but to disassociate the justice system from the
Charter
violations and to preserve the long term repute of the
    administration of justice.

Disposition

[96]

I agree with the majority view about the
    admissibility of the appellants statements.

[97]

I have reservations about the adequacy of the
    Information to Obtain (ITO). While there was ample basis in the ITO to
    believe that the appellant had consumed alcohol, and that she had operated a
    vessel, the basis for concluding that the seizure of the blood samples would
    afford evidence of an offence was thin.  The officer said only that he believed
    testing for the presence of alcohol is a common procedure without indicating
    the source of his belief. However, I need not express any further opinion on
    this issue, given the outcome of my analysis on the
Charter
violations and s. 24(2).

[98]

I
    would allow the appeal, quash the convictions, and remit the impaired operation
    of a vessel causing bodily harm charges to the Superior Court of Justice for
    trial.

G. Pardu J.A.

Released: CW JUL 25 2018


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dubinksy, 2018 ONCA 645

DATE: 20180717

DOCKET: C65072

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Collea Dubinsky

Appellant

Collea Dubinsky, acting in person

Hannah Freeman, for the respondent

Amy Ohler, duty counsel

Heard and released orally: July 9, 2018

On appeal from the conviction entered on September 21,
    2017 and the sentence imposed on January 31, 2018 by Justice Joseph Nadel of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from a 12-month sentence imposed
    for aggravated assault. The appellant, who was 34 years old, became involved in
    a consensual fight with the victim, who was 35 years old. There was
    long-standing animosity between the two.

[2]

During the fight, the appellant struck the victim
    multiple times with a beer bottle. The victim sustained serious and disabling
    injuries to her left hand, injuries that required surgery.

[3]

After the hearing at which the Crown was afforded the
    opportunity to prove aggravating features of the offence, the sentencing judge
    found that:

i.

the appellant did
not
engage in an unprovoked assault attacking the victim from behind; and

ii.

the appellant
did
cause all of the injuries sustained by the victim.

[4]

The appellant has had a very difficult background. She suffered from
    post-traumatic stress disorder and struggled with other mental health issues. The
    trial judge accepted the appellant had these conditions, but he found that they
    did not contribute to the offences in any way.

[5]

We do not see any error in the way in which the trial judge dealt with
    this evidence. Given the manner it was presented to him at trial by defence
    counsel (who was not Ms. Ohler), and by the appellant during her allocution under
    s. 726 of the
Criminal Code
, the trial judge weighed all the relevant
    factors in rejecting the appellants request for an intermittent sentence. The
    12-month sentence, acknowledged by her trial counsel to be reasonable, was fit,
    especially given the serious injuries sustained by the victim.

[6]

Leave to appeal sentence is granted, but the appeal is dismissed.

M.L. Benotto J.A.

Gary T. Trotter J.A.

David M. Paciocoo
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esseghaier, 2018 ONCA 659

DATE: 20180723

DOCKET: M48419 (C61095, C61185)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Chiheb Esseghaier and Raed Jaser

Appellants (Responding Parties)

Canadian Broadcasting Corporation

Moving Party

Iain MacKinnon, for the moving party, Canadian
    Broadcasting Corporation

Sarah Shaikh, for the responding party, Attorney General of Canada

Heard: February 7, 2018 followed by written submissions on June 19, 2018

Motion by the Canadian Broadcasting
    Corporation for access to certain DVD audio recordings filed as exhibits made
    the subject of a sealing order at the appellants trial before the Honourable
    Justice Michael Code, sitting with a jury.

ENDORSEMENT

[1]

On December 8, 2017 I ordered that the Canadian Broadcasting Corporation
          (the CBC) could have access to certain DVDs containing audio recordings
    filed as exhibits at the joint trial of Chiheb Esseghaier and Raed Jaser (the
    appellants) on various terrorism charges.  The audio recordings are of
    communications taking place between either or both appellants and an undercover
    operative using the name Tamer El Noury.

[2]

The appellants have appealed their convictions and sentences to this
    court, but have not yet perfected their appeals.

[3]

The order permitting access to the DVDs was subject to the terms and
    conditions for the alteration of the recordings to disguise Mr. El Noury that
    will be settled after counsel make further submissions. Counsel have now made
    those further submissions and have provided a draft undertaking by the single
    CBC journalist who requires access to the original recordings to complete the voice
    alterations.

[4]

The draft undertaking provided, attached as Appendix A to these reasons,
    furnishes a satisfactory basis upon which the CBC can have access to the DVDs.
    Once the undertaking has been signed and filed with the court, the DVDs may be
    released; the altered recordings created, reviewed and approved by the Crown;
    and the original recordings returned to the Court of Appeal in accordance with
    the terms of the undertaking.

David Watt J.A.

appendix a

Court File No. C61095 and

61185

COURT OF APPEAL FOR

ONTARIO

B E T W E E

N:

HER MAJESTY THE QUEEN IN RIGHT OF

CANADA

Respondent

(Responding Party)

and

-

CHIHEB ESSEGHAIER and RAED

JASER

Appellants

(Responding

Parties)

and

-

CANADIAN BROADCASTING

CORPORATION

Moving Party

UNDERTAKING

I,
Habiba Nosheen,
am employed at Canadian Broadcasting Corporation
    ("CBC") as

a journal ist
    and host. This undertaking relates to my obligations to secure and keep

safe DVDs that contain intercepted private
    communications between an FBI

undercover
    employee, Tamer El Noury, and one or both of Raed Jaser and Chiheb Esseghaier

(the "Original Audio Recordings").
    Both Raed Jaser and Chiheb Esseghaier were
convicted
of

various

terrorism

offences

after

trial.

The

Original

Audio

Recordings

were

filed

as exhibits either by the Crown or
    defence at trial, and were subject to a sealing order at

the time to protect the identity of the FBI

employee.

I understand that, pursuant to
    a decision dated December 8, 2017 (the "C.A.

Decision"), the Ontario Court of Appeal has granted CBC
    access to the Original Audio

Recordings,
    for  the  purpose  of  publication/broadcast
on the condition
that
    the  voice  of

the

FBI

employee

be

altered

so

as

to

disguise

his

true

identity

(the

"Altered

Recordings").

I

further
    understand that the Crown  will  be provided with  the Altered  Recordings

prior

to
    any publication or broadcast, so that the Crown may be satisfied that the

Altered

Recordings do not disclose the identity of the FBI employee. Should the
    Crown have

an

objection, I understand that all parties must come to an
    agreement prior to broadcast

or

publication. If no agreement can be
    reached, I understand that the Court of Appeal

will

be

notified.

I

understand

that

I

will

be

provided

with

copies

of

the

Original

Audio

Recordings

by

the
    Court of Appeal, which will be returned once the Altered Recordings are
    created.

I understand that only the
    Altered Recordings may be published or

broadcast.

I understand
    that if I permit any other person to have access to the Original

Audio Recordings or if I release or
    publish the Original Audio Recordings in any way, I may

be subject to contempt

proceedings.

I hereby undertake as

follows:

1.

To keep confidential and secure the Original
    Audio Recordings, and any copies

made
    of the Original Audio Recordings, at all

times.

2.

To

not

allow

access

(including

making

copies)

of

the

Original

Audio

Recordings

to

any
    person.

3.

To preserve the original DVD copies of the
    Original Audio Recordings and to

play
    them from one designated

computer.

4.

To only make
    any necessary copies of the Original Audio Recordings on

the designated computer for the sole purpose of creating the
    Altered

Recordings.

5.

To otherwise
    not reproduce the Original Audio Recordings in any

manner.

6.

To keep
    track of how many digital copies of the Original Audio Recordings are

made by me, in order to advise the Crown,
    if

requested.

7.

To not
    publish, broadcast, distribute, or share, in any manner, the Original

Audio Recordings, except in accordance
    with this undertaking or any court

order.

8.

To delete any and all digital copies of the
    Original Audio Recordings once the

Altered
    Recordings are

created.

9.

To not publish or broadcast in any way the
    Altered Recordings until all conditions

of
    access stipulated in any court order have been complied with by CBC, including

any right of the Crown to review and
    approve the Altered

Recordings.

10.

To return to the Court of Appeal the DVDs
    containing the Original Audio

Recordings
    once the Altered Recordings have been made, without

delay.

Dated

this

______

day

of

June,

2018,

Toronto,

Ontario.

Habiba

Nosheen

Witness: