In a 2:1 decision, the ABCA ruled that a Production Order under s. 487.012(3) of the Criminal Code can be granted on reasonable suspicion according to the wording of the provision and reasonable grounds as for a search warrant are not required

R. v. Fedossenko 2014 ABCA 314the accused was injured in a single-vehicle accident. The accused was taken to the hospital in an ambulance. A police constable accompanied him in the ambulance. On the way to the hospital, the police constable asked the accused if he had anything to drink. The accused answered, “a few beers earlier”. The civilian witnesses, one was the EMT member, said nothing about alcohol or impairment. The constable and the paramedic who treated the accused testified that they could not detect the smell of alcohol in the ambulance. When the constable placed his nose close to the accused’s mouth, he said he could detect a “faint smell of alcohol.” The constable also testified that the accused was coherent and not slurring his speech. The accused’s eyes were noted to be red.

At the hospital, the accused received emergency medical treatment. Part of the medical treatment involved taking samples of the accused’s blood. After those samples were taken, police informed the accused that he was under arrest for impaired driving. He was read his Charter and caution rights. The accused responded saying that he understood his rights and did not wish to speak to a lawyer. He agreed to a police demand that he provide samples of his blood. As a consequence, a second set of samples of the accused’s blood was taken.

The following night, the police constable made an application before a presiding justice of the peace for a search warrant pursuant to section 487 to seize the vials of blood taken from the accused by the hospital for medical purposes. In support of that application, an Information to Obtain a Search Warrant was affirmed by the police constable. The constable stated that vials of blood taken from the accused while receiving emergency treatment would afford evidence that the accused committed impaired driving offences. He said the police wished to seize the vials of blood so they could submit them to the RCMP for analysis to determine the concentration, if any, of alcohol in the accused’s blood. The stated grounds for the constable’s belief that the vials of blood (or their analysis) would afford evidence of impaired driving offences was that the accused, when asked if he had anything to drink, replied “a few beers a little earlier” and that he, the constable, could detect a faint smell of alcohol when he placed his nose close to the accused’s mouth. The application for the search warrant was denied by a justice of the peace on the basis that there were insufficient grounds for believing that an offence had been committed.

Weeks later, the police received the results of the analysis which the RCMP performed on the samples taken pursuant to the blood demand. Those results showed a prohibited blood alcohol content. Armed with the results of the RCMP blood-alcohol analysis, the police then applied for an order requiring the production of the hospital’s emergency medical records including records of the analysis done of the respondent’s blood by the hospital. This application for an order to produce documents was made pursuant to section 487.012. The application was made before a different justice of the peace than the one who heard the search warrant application.

In support of this application for a “production order” requiring the hospital to produce its analysis of the accused’s blood, the same police constable swore an Information to Obtain which was almost identical to the Information to Obtain he affirmed in support of the search warrant. However, in this second Information to Obtain, the police constable included the additional fact of the RCMP analysis of the accused’s blood taken from him pursuant to the blood demand which indicated a blood alcohol level in excess of the legal limit. The production order was sought on the basis that the hospital records including the analysis of the accused’s blood would corroborate the RCMP analysis of the accused’s blood and would thereby afford further evidence respecting the commission of the impaired driving offences.

Significantly, in his Information to Obtain the production order, the police constable swore that he had reasonable grounds to believe that the accused had committed offences and that the documents sought would afford evidence respecting the commission of those offences. He did not however, inform the justice of the peace hearing his production order application that his prior application for a warrant to seize the vials of blood had been denied because the justice of the peace hearing that application found that there were no grounds to believe that an offence had been committed.

In the result, the production order was granted on the basis that the Justice of Peace was satisfied that there were reasonable grounds to believe that the accused had committed the impaired driving offences and that the hospital records would afford evidence respecting the commissions of those offences.

Prior to trial, the accused filed a Charter Notice alleging, inter alia, a breach of section 8 (the right to be secure against unreasonable search or seizure) of the Charter. At trial, the Crown conceded that the blood-alcohol analysis performed by the RCMP was inadmissible, having been obtained in breach of the Charter. Two witnesses to the accident, an EMS paramedic and the police constable who attended at the scene the night of the accident and who obtained the production order, testified. Following the evidence-in-chief of the police constable, defence counsel sought and obtained leave to cross-examine him on both his Information to Obtain the search warrant and his Information to Obtain the production order.

The trial judge concluded that the requirements of paragraph 487.012(3)(a) had not been met. Her reasoning was:

At the time of applying for the production order, the officer did not inform the JP that he had applied for an earlier search warrant and that he had been denied on the basis that there were no grounds to believe that an offence had been committed. If it had already been judicially determined that there were no grounds to issue a search warrant on this basis, then there would be also be no reasonable and probable grounds to arrest the accused and no reasonable and probable grounds to have the accused supply a sample of his blood. If I therefore excise from the ITO the illegally obtained results of the blood analysis, I am left with the identical ITO that had already been rejected.

In addition, in reviewing all of Constable Coates’ evidence, I concur with the JP who denied the search warrant request. Constable Coates fell well short of having reasonable grounds to arrest the accused and to make the demand. The only indicia of impairment was a single vehicle accident, admission of a few beers earlier, red eyes, a faint smell of alcohol on his breath, but only when the officer put his nose to Mr. Fedossenko’s mouth. Absent was any information about road conditions or driving pattern. The evidence of the EMS personnel was that Mr. Fedossenko estimated his speed to be between 50 and 60 kilometres. Neither the civilian witnesses nor Mr. Corey Amberley, the EMT that treated Mr. Fedossenko, noted any signs of impairment. Mr. Coates confirmed the accused was coherent, compliant and able to understand. Constable Coates testified that Mr. Fedossenko did not slur his words. He was able to respond appropriate. This was also confirmed by Mr. Corey Amberley, the EMT member.

If I remove the information in the ITO that should be excised, in particular, reference to the blood analysis, and include in the ITO the relevant information that the prior application for a search warrant in relation to the same investigation had been denied, and taking into consideration the totality of the evidence that I have heard, I find that on the material before me, there was no basis upon which the authorizing judicial officer could have been satisfied that the pre-conditions for the granting of the probation [sic] order was authorized. Having found that there was no basis on which to grant the production order that was being sought, I therefore find that there is a section 8 breach.

The summary conviction appeal judge dismissed the Crown’s appeal on the basis that the trial judge did not err in law in her interpretation of the standard required by section 487.012(3) for a valid production order. The summary conviction appeal court judge found the trial judge to be “right” when she found that the standard or standards for obtaining a search warrant and a production order are the same, that is, reasonable grounds to believe that the respective Code requirements were present.

The primary issue in this appeal to the ABCA was whether or not the granting of the production order complied with section 8 of the Charter. In order to determine whether the granting of the production order complied with the Charter, it was necessary to determine whether the obtaining of the production order complied with the relevant provision of the Criminal Code, namely section 487.012(3)(a), and whether the production order complied with that provision turns on how “reasonable grounds to believe that an offence … is suspected to have been committed” is to be interpreted.

Section 487.012 dealing with production orders was enacted in 2004 and has not been extensively judicially considered; whereas section 487 dealing with search warrants was enacted decades ago and has received considerable judicial consideration. In a 2:1 decision, the court ruled:

“Section 487.012(3)(a) of the Code sets one of three criteria for the potential grant of a production order to acquire evidence. Section s 487.012(3) provides that the information in support of the grant of the order must show “… that there are reasonable grounds to believe that (a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; …”. Both courts below interpreted that language to mean that the information in support of the order must always set out reasonable and probable grounds to believe that an offence has been committed.

The interpretation of s 487.012(3) of the Code by the Courts below is plainly wrong.

This provision, s 487.012(3) has two other requirements, namely (b) and (c). Altogether they provide for judicial authority to seize evidence which has already been obtained from the subject and is lawfully possessed by third parties. To effectively remove the words “or is suspected” from s 489.012(3)(a) would be unsupportable under the principle that Parliament does not use words to no purpose. … The appellant submits that to give s 487.012(3)(a) its ordinary grammatical meaning in its context would produce a different result than he says has been established under Charter principles as to s 487(1) of the Code respecting traditional search warrants. But the provisions are different and for a different purpose.

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

The majority said that the medical interests of the accused were not at odds with his constitutional rights. As the trial judge and summary appeal judge excluded evidence and ultimately acquitted Fedossenko based on a mistaken interpretation of the legislative requirements for obtaining production of Fedossenko’s medical records, a new trial was required.

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