R. v. Day

R. v. Day Collection Decisions of the Court of Appeal Date 1998-10-29 Docket numbers C28442 Judges Doherty, David H.; Moldaver, Michael James; Borins, Stephen Subject Criminal Decision Content DATE: 19981029 DOCKET: C28442 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. ROBERT DAY (Applicant/Appellant) BEFORE: DOHERTY, MOLDAVER and BORINS JJ.A. COUNSEL: Leslie Paine for the appellant Michal Fairburn for the respondent HEARD: October 23, 1998 ENDORSEMENT [1] The appellant submits that the trial judge improperly considered evidence led on the voir dire but not presented to the Justice of the Peace in determining whether the information placed before the Justice of the Peace provided adequate grounds for the issuing of the search warrant. Parts of the reasons of the trial judge are open to the interpretation urged by the appellant. We need not come to any firm conclusion on this issue as, in our view, the real question is whether the information placed before the Justice of the Peace did provide a basis upon which the Justice of the Peace could, acting judicially, issue the warrant. [2] Given that the allegation set out in the information was impaired driving and arose out of an accident on a public highway that resulted in the hospitalization of the seriously injured appellant, the Justice of the Peace could reasonably infer that the informant, who was a police officer, gained his information concerning the accident and the surrounding circumstances from reliable standard police sources. [3] The information considered as a whole did provide a basis upon which the Justice of the Peace could conclude that the police had reasonable grounds to believe that the appellant had committed the offence of impaired driving, that his blood could afford evidence of the commission of that offence and that his blood was stored in the hospital which was the subject of the search warrant. [4] In the course of the voir dire, it became apparent that the officer who swore the information to obtain the search warrant had learned from hospital personnel that the appellant had provided a blood sample and that the blood sample was stored at the hospital. The hospital personnel had not provided the police with any information as to the results of any tests that may have been performed. While the appellant had a reasonable expectation of privacy in respect of the results of any tests that were performed on him, we are not satisfied in all of the circumstances of this case that he had a reasonable expectation of privacy with respect to the mere fact that blood samples were taken by the medical personnel when he was admitted to the hospital in a coma. [5] The voir dire reveals no basis upon which we can conclude that the information placed before the Justice of the Peace contained any material omissions or was otherwise misleading. [6] There is, with respect, no merit to the causation argument. The level of this appellant's impairment and the nature of the accident provided more than ample evidence from which the trial judge could infer that the appellant's impairment was at least one of the causes, beyond de minimis, of the accident. [7] The sentence appeal has given us considerable concern. We have been particularly concerned about the impact of s. 718(2)(e) on the question of whether this appellant should receive a conditional sentence. It appears to be common ground that but for that section, he would not be an appropriate candidate for a conditional sentence. Even considering the admonition in that section, we are not satisfied that a conditional sentence is appropriate here. This appellant has a terrible record, much of which involves breaches of court orders. This was a very serious accident and the level of impairment was very high. Furthermore, although the appellant has been on bail pending appeal for about a year, there is no indication that he has sought any treatment or taken any steps to deal with his significant alcohol-related problems. In all of those circumstances and taking into consideration s. 718(2)(e), we do not think it would be appropriate to impose a conditional sentence. Leave to appeal sentence is granted, but the sentence is dismissed. [8] In dismissing the sentence appeal we do observe that there appears to be a program available to the appellant which may well provide the best hope, not only for him but for the rest of the community. We hope that this program will be brought to the attention of the provincial parole authorities and that they will give the availability of that program due consideration in assessing the appellant's application for parole.