Untimely report to justice breached Charter
Failing to file a report to a justice after police seize an item can amount to a s. 8 Charter breach.
In R. v. Garcia-Machado, 2015 ONCA 569 the accused crashed his vehicle into two trees, seriously injuring himself and his front-seat passenger. Hospital staff drew Garcia-Machado's blood for medical purposes. Believing he was intoxicated, police subsequently obtained a search warrant authorizing the seizure of his blood and hospital records relating to medical treatment after the crash.
The warrant required police to bring the seized items before the justice who issued the warrant or another justice "to be dealt with according to law."
A toxicologist analyzed the blood and determined that Garcia-Machado's BAC at the time of the crash was over 80mg% and that his level of intoxication would have impaired a person's ability to drive. He was charged with impaired driving causing bodily harm and over 80mg% causing bodily harm some two months after the crash. A report to a justice, however, was not filed for about another seven weeks after the charges were sworn (15 weeks after the seizure).
In the Ontario Court of Justice the investigating officer testified he thought s. 489.1(1) of the Criminal Code, which requires a report be made "as soon as is practicable," was only operative when charges were laid. He said he did not know that the provision required him to report to a justice "as soon as is practicable" after the seizure.
The judge found that Garcia-Machado had "a high expectation of privacy in the items seized, both of which contain a high level of personal and private information." He concluded that "police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to s. 8 of the Charter." He then excluded the evidence under s. 24(2) and acquitted Garcia-Machado.
The Crown appealed to the Ontario Court of Appeal, arguing that the officer's failure to file a timely report was not a s. 8 Charter breach. The court rejected this submission, agreeing with the trial judge that police breached Garcia-Machado's rights.
Reporting to a justice
The court noted that there were a number of conflicting cases concerning whether a failure to comply with s. 489.1(1) amounted to a breach of the Charter. Some cases support the view such a failure renders the continued detention of a seized item unreasonable while others support the view that failure to comply does not breach s. 8.
Associate Chief Justice Hoy, authoring the unanimous judgment, recognized that s. 489.1(1) "applies to both warrantless common law seizures and seizures pursuant to a warrant." He then went on to find that a s. 8 breach occurred when the officer failed to comply with the requirement to report as soon as practicable. By failing to do so, the continued dentition of the seized item was unreasonable.
If a peace officer fails to file a report under s. 489.1(1), the property seized is not subject to judicial supervision during the investigation under s. 490. The real importance of s. 489.1(1) is its link to s. 490 [para. 16]...
[I]t is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests.
The constable's post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the [accused] had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8 [para. 45].
Despite the Charter breach, the court overturned the trial judge' exclusion of the evidence because he failed to consider a number of relevant factors in his s. 24(2) analysis. The evidence was admissible, the Crown's appeal was allowed, Garcia-Machado's acquittal was set aside and a new trial ordered.