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Reasonable grounds not required for production order


October 6, 2014
By Corrie Sloot

A production order may be issued on the basis of a reasonable suspicion.

In <R. v. Fedossenko, 2014 ABCA 314> the accused was taken to hospital by ambulance, accompanied by a police officer, following a single vehicle accident. During transport, he told the investigating officer that he had “a few beers earlier.”

The officer smelled a faint odour of alcohol on Fedossenko’s breath and noted that his eyes were red, although he was coherent and not slurring his words.

Blood samples were taken at the hospital for medical purposes. Fedossenko was then arrested for impaired driving, read his Charter rights and a blood demand was made under <s. 254(3)> of the Criminal Code. Fedossenko complied and a second set of blood samples were taken.

The following night the investigating officer applied for a search warrant to obtain the medical blood samples. His application was rejected on the basis that he had insufficient grounds to believe an offence had been committed.

The officer subsequently received the results of forensic analysis of the blood samples he demanded, which showed a blood alcohol concentration over the legal limit. He used those results to help obtain a production order under <s. 487.012> of the Criminal Code for the hospital records related to the medical blood samples.

At trial in Alberta Provincial Court the Crown conceded the evidence obtained through the <s. 254(3)> blood demand was inadmissible. The justice of the peace who denied the search warrant had already determined there were not reasonable grounds to believe an offence had been committed. Thus, the Crown did not attempt to tender this evidence.

Instead, the Crown relied solely on the hospital records obtained by the production order to establish Fedossenko’s blood alcohol concentration. Fedossenko objected on the basis that the order was invalid because the investigating officer did not have reasonable grounds to believe an offence had been committed, which he argued was required by <s. 487.012(3)>. The Crown argued that only a reasonable suspicion that an offence had been committed was required.

The judge agreed with Fedossenko, finding the hospital records were obtained in breach of <s. 8> of the Charter because reasonable grounds for the production order had not been met, and excluded the hospital records under <s. 24(2)>. Fedossenko was found not guilty of impaired driving.

An Alberta Court of Queen’s Bench judge upheld the trial judge’s interpretation, finding that the standard for granting a production order was the same as that required for a search warrant under <s. 487(1)> – reasonable grounds to believe an offence has been committed. A Crown appeal was dismissed.

The Crown further appealed to Alberta’s top court, arguing a production order could be issued on the basis of a reasonable suspicion of an offence and that reasonable and probable grounds weren’t required.

{A view of two}

Justices Picard and Watson, writing the majority opinion, concluded that both lower courts incorrectly interpreted the language of <s. 487.012(3)> to mean that only reasonable and probable grounds to believe that an offence has been committed was required. Instead, the language includes reasonable grounds to believe that an offence has been or is suspected to have been committed. It incorporates the option of reasonable suspicion – a familiar and constitutionally legitimate standard.

<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.

Moreover, in the circumstances of this case, it is clear that this wasn’t an attempt by the police to circumvent their duties or to otherwise cure an earlier failed attempt to obtain similar evidence but in a different fashion. The tests are simply different. Nothing in this case had the effect of placing the accused’s medical interests in direct tension with his constitutional rights> (para. 8).

The Crown’s appeal was allowed and a new trial ordered.

{Another opinion}

Justice O’Ferrall, in dissent, would have upheld the appeal judge’s interpretation of the section. “Reasonable suspicion… is not sufficient under… section 487.012(3)(a) for intrusive searches,” he said.

Furthermore, even if a different standard were applied, there was insufficient admissible evidence to support the issuance of the production order, O’Ferrall concluded.