Court File and Parties
Ontario Court of Justice
Date: 2017-12-19
Court File No.: Region of Durham 998 16 34321
Between:
Her Majesty the Queen
— and —
Thillan Kamalanathan
Before: Justice J. De Filippis
Heard on: June 14, September 21-22, & October 17, 2017
Reasons for Ruling released on: December 19, 2017
Counsel:
- Mr. F. Giordano, for the Crown
- Mr. G. Henderson, for the Defendant
De Filippis, J.:
Introduction
[1] The defendant was charged with having care or control of a motor vehicle at a time that his blood alcohol level exceeded the legal limit ("over 80"), contrary to s. 253(1)(b) of the Criminal Code. The trial proceeded as a blended hearing that also dealt with a motion to exclude evidence. The defendant alleges that his rights pursuant to sections 8, 10(a) and 10(b) of the Charter of Rights and Freedoms were violated. The Crown called 12 witnesses. The Defence elected not to call evidence.
[2] The defendant crashed his car. He was assisted by several people until paramedics arrived and he was taken to the hospital. A nurse at the hospital reported to police that she detected an odour of alcohol on the defendant's breath. This was later confirmed by an officer who attended at the hospital. This officer demanded that the defendant provide a sample of his breath into an approved screening device (ASD). He complied and "failed". He was arrested for the present offence. A breath technician was called to the hospital and obtained two samples of defendant's breath; both were above the legal limit. Five weeks later, the breath technician obtained a search warrant to seize the defendant's hospital records and blood samples. An analysis of this evidence also revealed an alcohol blood level above the legal limit.
[3] This case is essentially about the application of Charter principles to evidence that is, for the most part, not controversial. Thus, in the reasons that follow, I am not unduly concerned with issues of credibility and reliability. I will set out the basic facts and then deal with each Charter motion, as framed by the Defence.
[4] The following paragraph from the submissions filed by Defence counsel sets out the nature of the Charter challenges to the admissibility of the prosecution evidence:
The overarching theme, or the common thread, that runs through these Charter violations is the failure of police to acknowledge, much less address, the unique challenges that present themselves when an investigation takes place at a hospital and runs parallel to a patient, also an accused, receiving medical treatment. If Charter rights are to be respected, the police must be sensitive to, among other things, the manner in which a person is detained, the means through which he or she can exercise rights to counsel, and the information that is sought or received from medical staff. An investigation at hospital cannot be treated as any other investigation, one that takes place at the roadside, for example, or at a police station. Because, in this case, the police proceeded as though this were any other investigation, Mr. Kamalanathan's Charter rights were infringed upon. Pursuant to s. 24(2) of the Charter, Mr. Kamalanathan seeks the exclusion of all evidence of his blood/alcohol concentration.
[5] For the reasons that follow, I decline to grant the requested Charter remedy and find the defendant guilty as charged.
Non-Contentious Evidence
[6] On March 20, 2016, the defendant was involved in a single motor vehicle collision. He was the driver and sole occupant of a car. As he drove eastbound on Highway 7, in the City of Pickering, he passed through the intersection at Brock Road. This was a four-way intersection, controlled by traffic lights. However, because of construction, the four-way intersection became a T-intersection, and eastbound traffic was directed either north or south by concrete barriers. At about 2:00 p.m., the defendant drove through the intersection, but did not turn north or south and did not slow down. He struck the concrete barriers, causing his car to become airborne, eventually coming to rest beyond the concrete barriers, after spinning 180 degrees.
[7] The drivers of two other cars in the area, Mr. Rivett and Mr. Steinhaver, assisted the defendant by taking him to a centre median, where he was told to lay down and keep still. The two witnesses saw bloodshot eyes, bleeding from one eye, minor scrapes and cuts and a small cut on forehead. Police, fire and ambulance arrived within 10 minutes. Mr. Alphonso, a paramedic, placed the defendant on a stretcher with a neck brace. He was transported by ambulance to Markham Stouffville Hospital.
[8] PC Barnett and PC Smith responded to the dispatch about the accident but neither had contact with the defendant at the scene. At 3:33 p.m., these officers received information from the hospital. A nurse had detected an odour of alcohol on the defendant's breath and believed that he might be impaired. PC Barnett and PC Smith left the accident scene for the hospital. Initial efforts were made to locate the nurse who had called police, but before locating her, the two officers went to the defendant's room and spoke to him. After introducing herself, PC Barnett leaned closely towards the defendant and detected the "very faint" odour of alcohol on his breath. At 4:11 p.m., after further conversation, during which the defendant admitted consuming alcohol, PC Barnett made the ASD demand.
[9] Since neither officer possessed an ASD, a request was made to York Regional Police to bring one to the hospital. While waiting, at 4:23 p.m., PC Barnett advised the defendant of his rights to counsel. He said he did not want to speak to a lawyer. By 4:27 p.m., a screening device had been delivered, and at that time, the defendant provided a sample of his breath, which registered a "fail." PC Barnett arrested him for "over 80." At 4:29 p.m., PC Barnett made a s. 254(3) breath demand.
[10] After the defendant was arrested, the police learned that it was Ms. Page, the triage nurse, who had reported that she detected the odour of alcohol from the defendant. PC Boyle, a qualified breath technician, was dispatched to conduct the breath tests. He arrived at the hospital at 5:01 p.m. He brought a video camera to record the tests on the approved instrument. Since the batteries on the camera were low, only parts of the process were recorded. The defendant provided samples of his breath that registered 97 milligrams of alcohol in 100 mL of blood. At 6:28 p.m., he registered 92 milligrams of alcohol in 100 mL of blood.
[11] On April 29, PC Boyle obtained a search warrant to seize the defendant's hospital records and blood samples. This material, along with the breath test results, were eventually analyzed by Ms. Chow, a forensic toxicologist. She provided an opinion to the court based on the different sources of information available to her.
[12] According to Ms. Chow, having regard to the breath test results and the reported driving time of 1:55 p.m. to 2:03 p.m., the blood alcohol concentration at the time of the collision would have been between 105 and 170 milligrams of alcohol in 100 mL of blood. Based upon the hospital records recording the concentration of alcohol in the blood, and using the same time of driving, she concluded that his blood/alcohol concentration at the time of the accident would have been between 216 to 236 milligrams of alcohol in 100 mL of blood. Finally, based upon her own analysis of the defendant's seized blood, and using the same time of driving, Ms. Chow opined that the defendant's blood/alcohol concentration at the time of driving would have been between 163 to 183 milligrams of alcohol in 100 mL blood. This witness confirmed that there was no scientific reason to prefer one method of analysis over another, but regardless of the method used, the defendant's blood/alcohol concentration was over the legal limit.
Charter Motions and Additional Relevant Evidence
Section 8: "A Sniff is a Search"
[13] PC Barnett conceded that in leaning toward the defendant to check for the odour of alcohol, she encroached "on his personal space". The Defence claims that this amounts to a warrantless search that violated section 8 of the Charter. That section provides that "Everyone has the right to be secure against unreasonable search or seizure". This claim is grounded in several decisions. In R. v. Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18, R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19, and R. v. Chehil, [2013] 3 S.C.R. 220, 2013 SCC 49, the warrantless use of drug-sniffer dogs was defined as a search.
[14] In the former case, at para. 26, Binnie J. said, "a 'sniff' amounts to a s. 8 search." The Defence does not claim that 'a sniff is a search' in all cases and suggests a distinction between direct and indirect observations: If, for example, an officer becomes aware of the odour of alcohol while communicating with a motorist by asking for a driver's licence and registration, this "indirect observation" does not amount to a search. However, if a specific investigative technique is employed for a specific purpose, this is a "direct observation" that engages s. 8 of the Charter. It is asserted that PC Barnett's action comes within the latter category.
[15] The Defence submits that the present case is similar to R. v. Lima, 2017 ONSC 2224, [2017] O.J. No. 1759, where the accused was detained, without rights to counsel, in the back of a police cruiser, and during this detention an odour of alcohol was detected. Fairburn J. said, at para. 32:
We do not know what would have happened if, immediately upon detention, he had been afforded the right to counsel and availed himself of counsel. Perhaps the detention would have been shortened. Perhaps he would have said nothing. Perhaps the alcohol would not have been detected on his breath if he said nothing.
[16] The Crown maintains that the decisions relied upon by the Defence have no application to the facts of this case:
Mr. Kamalanathan's breath was open to detection by any number of persons in the hospital, doctors, nurses, paramedics, administrators, cleaning staff, security, police, patients, visitors and others. While an odour that cannot be detected without specialized tools or techniques may be subject of a reasonable expectation of privacy, one that can be detected unaided is not. Emanations ordinarily detectable in a public forum with one's unaided senses are not subject to a reasonable expectation of privacy.
[17] I accept the Crown submission. Unlike Lima, where police confined the accused in the back of a cruiser, in this case, the defendant was in a public institution for medical care. This is not to suggest he abandons privacy rights in a hospital, but the police did nothing to compromise his privacy by "sniffing" in that setting.
Sections 8 and 10(b): "Forthwith"
[18] PC Barnett did not make an ASD demand upon detecting the odour of alcohol. She spoke to her partner, PC Smith, and it was decided to request that such a device be brought to the hospital by the York Regional Police. PC Smith left the room and spoke to Doctor Taylor and confirmed that the defendant was medically fit to provide a breath sample. Meanwhile, in response to a question by PC Barnett, the defendant admitted consuming alcohol at lunch. At 4:11 p.m., the officer made the ASD demand.
[19] The Defence submits that the demand should have been made as soon as PC Barnett detected the odour of alcohol on the defendant's breath. Instead, she continued to question the defendant and obtained an admission that he had consumed alcohol. As such, it was not made "forthwith" as required by section 254(2) of the Criminal Code. Counsel points out that in R. v. Quansah, 2012 ONCA 123, it was held that "forthwith" means "immediately."
[20] The Defence concedes that the delay in making the demand "is a matter of minutes or even less" but any further questioning after reasonable suspicion is formed is beyond the meaning of 'forthwith': "In this case, PC Barnett used the additional time to ask further investigative questions of Mr. Kamalanathan and to obtain an inculpatory statement from him. This, it is submitted, is a clear misuse of what has been described as the 'forthwith window'."
[21] In Quansah, it was said that "the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body". The court added that "one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the 'forthwith' criterion is not met".
[22] If PC Barnett's reasonable suspicion did not crystallize until the defendant admitted consuming alcohol, she could not have made the ASD demand. However, I find that the reasonable suspicion was present before this. She had information about a single motor vehicle collision involving the defendant and a report by a nurse of the odour of alcohol on his breath and suspected impairment. If this did not give rise to a reasonable suspicion that the defendant had operated a motor vehicle with alcohol in his body, she certainly had this belief when she herself observed the odour of alcohol.
[23] I agree with the Defence submission. The few minute delay in making the demand has not been explained. Thus, it was not "forthwith". In opposing this finding, the Crown points out that the breath sample was not taken until after the right to counsel had been given. I accept the fact asserted, but reject the submission. That is a matter for consideration with respect to section 24(2) of the Charter.
Sections 10(a) and 10(b): "Immediately"
[24] PC Barnett and PC Smith arrived at the hospital at 3:50 p.m. The defendant had been moved from the triage area to a room, with hospital equipment and a single bed. The defendant was in that bed, wearing a medical gown, with a gauze bandage on his forehead and patches on his chest and wires running from those patches.
[25] Both PC Barnett and PC Smith agreed that they attended the hospital to further a criminal investigation because he might have been impaired and, if not, likely faced a charge of careless driving under the Highway Traffic Act. PC Barnett testified that he did not consider the defendant to be detained because the police had done nothing to restrict his liberty; he had been transported to the hospital for medical attention.
[26] The Defence asserts that the rights guaranteed by section 10(a) and (b) of the Charter were infringed. Those subsections provide that "Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor [and] (b) to retain and instruct counsel without delay and to be informed of that right".
[27] In this regard, it is argued that although the police did not physically detain the defendant, he did not have freedom of movement; he was in a hospital bed, wearing a hospital gown, and receiving medical treatment. Counsel, relying on R. v. Sell, [1995] O.J. No. 484 (Gen. Div.) claims this amounts to "detention" and imposed a duty on police to comply with section 10(a) and (b) without delay. The failure to do so in this case, it is argued, is especially significant because the police asked investigative questions that provided the grounds to subject the defendant to an ASD demand.
[28] The Defence submits that there was a realistic opportunity for the defendant to contact counsel from the hospital room and thus, he should have been advised of his right to counsel. Instead, PC Barnett waited 12 minutes and discussed the motor vehicle collision and both asked and answered questions. She also described the consequences of refusing to provide a breath sample and then provided the rights to counsel. Counsel argues that this is a second violation of the right to counsel (the first being that it was not given immediately upon "detention").
[29] The Charter does not insulate individuals from all contact with authority. Detention under the Charter refers to significant physical or psychological restraint and general inquiries by police do not trigger section 10 rights: R. v. Grant, 2009 SCC 32 at para 30-34, 41; and R. v. Suberu, 2009 SCC 33 at para 2-5, 28. While the defendant's movements had been restricted by the need for medical care, there was nothing said or done by the police to reasonably ground a belief that his actions would be curtailed by them. There is no Defence evidence to contradict this finding.
[30] It is the Crown's position that the defendant was not detained until PC Barnett made the ASD demand. It is asserted that there was no delay because the right to counsel was given before the alcohol screening procedures. In the alternative, it is argued that the 12-minute delay was adequately explained by PC Barnett. She testified that immediately after the demand, the defendant asked, and she answered, questions about the implications of the demand, the crash scene, and the whereabouts of his cell phone. I find both arguments persuasive.
Section 10(b): "Special Circumstances"
[31] At 4:27 p.m., the defendant registered a "fail" on the ASD and was arrested. PC Barnett made a s. 254(3) breath demand and advised him again of the right to counsel. Before complying with this breath demand the defendant was advised of the right to counsel twice more. PC Barnett testified that on each occasion she read from the standard wording at the back of her police issued notebook. The Defence submits that on most occasions this will suffice. However, there will be cases where reading the standardized rights, without more, falls short. Reliance is placed on R. v. Vanstaceghem, [1987] O.J. No. 509 (Ont. C.A.), where it was held that an accused must understand what is being said and what options are available to exercise of the rights guaranteed by the Charter.
[32] The Defence position is as follows:
In all the circumstances, Mr. Kamalanathan could have been under the reasonable belief that it was not practicable for him to contact counsel, much less was it practicable to contact counsel in private, regardless of whether the standardized rights to counsel included a reference to privacy. Mr. Kamalanathan could also have been under the reasonable belief that the exercise of his rights to counsel were in tension with his on-going medical treatment. In these circumstances, PC Barnett was obliged to explain in clear and direct terms how Mr. Kamalanathan could contact a lawyer and what steps the police would take on his behalf. This information should have been specific to the hospital setting. Because PC Barnett failed to clearly and directly provide this information to Mr. Kamalanathan, there was a further infringement of his rights under s. 10(b) of the Charter.
[33] This argument is simply speculation. It is not supported by any Defence evidence and is contradicted by that tendered by the Crown. I am satisfied that the defendant understood his right to counsel. This is demonstrated by his repeated response that he did not wish to speak to a lawyer and, on one occasion, adding that he would do so after the breath tests were completed. At no time did the defendant express any confusion.
Section 8: Videotaping
[34] The Defence argues that his section 8 rights were violated by PC Boyle when he video recorded the breath tests.
It is submitted a hospital room cannot be analogized to a breath room. It is difficult to imagine a more intimate and private setting than someone in a hospital bed. Mr. Kamalanathan was in a vulnerable position. He was in state of undress, which was aggravated further because PC Barnett, a female officer, was present throughout. More so than to a breath room, a videotape recording made in a hospital is akin to a strip search, which has been described as "inherently humiliating": see R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83 at para. 90. It is "inherently humiliating" to be videotaped in a hospital bed.
Moreover, in a hospital room, there is a real possibility that private medical information will be captured incidentally. In making this submission, reliance is placed on R. v. Mok, 2014 ONSC 64 (leave to appeal dismissed 2015 ONCA 608). In that case, a drunk young female was required while in custody to walk a distance across a cell during urination to obtain toilet paper and then urinate with her genitalia fully exposed and videotaped under circumstances where evidence preservation was not engaged and she subjectively and objectively had a reasonable expectation that she was not being recorded.
[35] Mok is clearly distinguishable. I have the benefit of seeing the video record in question. The defendant is aware of the camera and does not object. I can observe the defendant's bare shoulders and the upper third of his chest. He is otherwise covered by a blanket in a hospital bed with railings. There is nothing unseemly, degrading, or undignified about this. He would be seen in this state by numerous people caring for him, including doctors, nurses, food servers, and cleaners.
Section 8: "The Unnecessary Third Test"
[36] PC Boyle, the intoxilyzer technician, took three samples of the defendant's breath. He did so because he deemed the second one to be insufficient. The Defence objects to this:
Mr. Kamalanathan provided two suitable samples of his breath, at 5:56 and 6:28 p.m., respectively. He registered 97 milligrams of alcohol in 100 millilitres of blood and 92 milligrams of alcohol in 100 millilitres of blood. Before the second sample was obtained, and at 6:26 p.m., Mr. Kamalanathan provided another sample of his breath, which met the minimum requirements of the Intoxilyzer 8000C and could have been analyzed. Despite meeting the minimum requirements, PC Boyle deemed the sample unsuitable. He testified the reading was in the "mid-eighties."
It is submitted PC Boyle should have deemed suitable the breath sample obtained at 6:26 p.m. It met the minimum requirements of the Intoxilyzer 8000C, and it was in good agreement with the earlier and later obtained breath samples, as all three samples were within 20 milligrams of alcohol in 100 millilitres of blood. From this perspective, the third test was an unnecessary test, and Mr. Kamalanathan's rights under s. 8 of the Charter were therefore violated.
PC Boyle testified that he considered the second breath sample to be of poor quality. Because the sample met the minimum requirements of the Intoxilyzer 8000C, and because the sample was in good agreement with the suitable sample obtained at 5:56 p.m., it is submitted that PC Boyle's subjective opinion was not objectively reasonable.
It is noted that Mr. Kamalanathan's second sample, if deemed suitable, would have provided a truncated reading of 80 milligrams of alcohol in 100 mL of blood, and without more, this reading would not have justified the "over 80" charge.
[37] I cannot give effect to this argument. PC Boyle testified that while the rejected sample was in "good agreement", it was his opinion that the defendant had "cut his breath short" during the test and he wanted a sample of superior quality. A qualified technician has the discretion to deem a breath sample unsuitable: see R. v. Dobrowolski, [2005] O.J. No. 2576 (Ont. C.A.). This decision, of course, is reviewable by the court. The officer explained, to the defendant at the time and in testimony before me, why he required a third sample. His explanation is reasonable. In this regard, I note that apart from the three samples taken, there were several failed attempts on the part of the defendant.
Section 8: "Personal Health Information"
[38] The Defence asserts that there was an inappropriate exchange of information between hospital staff and the police. One nurse reported the odour of alcohol on the defendant's breath and another confirmed that blood had been taken from him. This communication, it is said, caused police to make an ASD demand and obtain authorization to seize a sample of the blood – all in contravention of the defendant's section 8 rights.
[39] Nurse Page testified that she could smell the odour of alcohol from a distance away from the defendant, although he denied that he had been drinking. She added that Dr. Taylor asked her to determine if the police would be coming to see the patient. Ms. Page did so and explained the reason for doing so is that they may have information about the trauma events that are relevant to medical care and to find and advise family members of the situation. Ms. Page testified that when she called the police, she was asked by the officer if she smelled alcohol from the patient and she answered in the affirmative.
[40] Nurse Branton testified that a 'blood panel'/'trauma panel' was ordered by the emergency room physician (Dr. Taylor) and that this is part of standard medical procedures in all trauma cases. Part of the reason is to determine if there is alcohol in the patient's system as this can impact on the medical care. She drew the blood from the accused at 3:03 p.m.
[41] PC Smith testified that police did not follow the ambulance to the hospital or direct first responders in any way, instead remaining on scene to investigate the site of the crash. He added that, since there was no information about alcohol being involved in the collision, it was his belief that the accused was distracted, perhaps because of cell phone use. As such, he thought a charge of careless driving might be warranted. He indicated that the police would go to the hospital to get an update on the driver's injuries regardless of whether charges would be laid. Before leaving the scene, however, he learned that a hospital staff member had detected the odour of alcohol on the defendant's breath.
[42] This is the Defence position:
Hospitals and their employees, such as nurses, are custodians of personal medical information, and they have statutory and ethical obligations concerning the disclosure of patient information. The statutory obligations are described under s. 29 of the Personal Health Information Protection Act (PHIPA), S.O. 2004, Chapter 3, which describes the general prohibition against the disclosure personal health information, and s. 41, which provides limited exceptions. Consistent with the PHIPA, Markham Stouffville Hospital has an administrative direction entitled "Privacy of Personal Health Information," which expansively defines "health care" to include "any observation, examination, assessment, care, service, or procedure that is done for a health-related purpose." This also includes "information that is collected incidentally to the provision of health care." In addition, the College of Nurses of Ontario has drafted a number of Practice Standards that also emphasize a patient's fundamental privacy interests: see "Confidentiality of Privacy Personal Health Information"; "Ethics"; "Professional Conduct, Professional Misconduct".
[43] The Defence concedes that on its own, misconduct on the part of hospital staff would not amount to a Charter breach. However,
….in seeking out and obtaining Mr. Kamalanathan's personal health information, it is submitted the police were conducting a search, and such a search, being warrantless, is prima facie unreasonable and a violation of s. 8 of the Charter ….Excepting the initial call,- [with the unsolicited report from a hospital staff member about an odour of alcohol on the defendant's breath] - the police were neither passive nor accidental recipients of Mr. Kamalanathan's medical information. The information was obtained during an active police investigation. The information was of sufficient value to be included in a later application for a search warrant. The police were entirely indifferent to Mr. Kamalanathan's reasonable expectation of privacy, something PC Smith acknowledged when he said he felt free to ask questions of hospital staff and it was up them, not the police, whether their professional obligations were implicated. Under s. 8 of the Charter, it is submitted such an attitude cannot be condoned.
[44] The Defence is correct to assert that there is a reasonable expectation of privacy in medical information, and if the police obtain this information, there is a search: see R. v. Dersch, [1993] 3 S.C.R. 768 at para. 25. As previously noted, I do not accept that the sniff of the defendant's breath constitutes a search in this case.
[45] On the other hand, a blood test is a medical record. See R. v. Halman, 2015 ONCJ 372. I am satisfied that PC Boyle was told by a nurse that blood had been drawn from the defendant. However, the evidence from both nurses is that a blood screen is an essential component of medical care in trauma cases and PC Boyle testified that he was aware that such tests are always conducted. This standard practice and expectation would have been compelling evidence in the Information to Obtain the search warrant (ITO), regardless of what was said by hospital staff. In any event, the nurse who revealed the existence of this fact is not a state agent for the purposes of the Charter.
[46] Assuming that the question by PC Boyle, 'was blood taken?', amounts to a search, there is no section 8 violation because the warrant to seize the blood was lawfully issued in any event. I come to this conclusion because of my Charter rulings as explained above. The Crown argues that, even if the Defence had succeeded in all Charter claims, the warrant would nevertheless be lawful.
[47] A judicially authorized search is presumed to be valid. The Defence must establish, on a balance of probabilities, that its issuance violates section 8. If information relied upon to obtain the search warrant is successfully challenged, it is excised from the ITO. In such circumstances, the reviewing justice must determine if there was any basis upon which the authorizing justice could be satisfied with respect to the statutory preconditions for issuance: R. v. Manders, [2007] O.J. No. 757. If there is any basis, the warrant is valid, the search is not unreasonable, and the evidence is admissible.
[48] If the Defence had succeeded in challenging the admissibility of the ASD and the Intoxilyzer breath test results, such that this information is excised from the ITO, the following remains: The defendant was the driver in a single motor vehicle collision, he had an odour of alcohol on his breath, and a blood sample could reasonably be expected to have been taken at the hospital as part of his medical care. While an odour of alcohol and an unexplained accident will amount to reasonable suspicion for the purposes of an ASD demand, in my view, it does not amount to reasonable and probable grounds to believe the defendant was impaired or over 80, thereby justifying the seizure of blood. Accordingly, I reject the Crown's alternative submission about the validity of the search warrant. This brings me to section 24(2) of the Charter.
Section 24(2): Remedy
[49] I have rejected all Charter claims except as it relates to the fact that the ASD demand was not "forthwith". Notwithstanding this breach, and in the event I am wrong in my other Charter findings, I would not grant the requested remedy to exclude the evidence of the breath tests and blood tests.
[51] In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors must be considered: (1) The seriousness of the Charter-infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society's interest in the adjudication of the case on its merits. The three factors to be considered are fact specific. After considering these factors, a court must then balance the assessments under each line of inquiry in determining whether admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, 2009 SCC 32.
[52] The first stage of the inquiry reflects the concern that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. In this case, the police discovered evidence that was obtained for valid medical reasons prior to and separate from any police involvement. It is conceded that the unsolicited report about alcohol on the defendant's breath does not raise Charter concerns. Although the ASD demand was not forthwith, this breach is mitigated by the fact that the defendant was advised of his right to counsel before the test was administered. That the police may have asked about the existence of blood samples is rendered almost meaningless because the existence of a blood screen is standard practice by the hospital and expected by the police. Moreover, the police action in obtaining a warrant to obtain the blood samples supports the inference that they acted in good faith.
[53] The second stage focuses on the impact of the breach on the protected interests of the defendant. Taking the Charter seriously means that the greater the intrusion on important interests, the more likely it is that tainted evidence will be excluded. With respect to the blood samples, the police did nothing to intrude on the defendant's privacy interests. Rather, they seized as evidence what already existed because of the defendant's medical care. Moreover, if the defendant's 10(b) rights were violated, as claimed, the minimal impact on him is made manifest by the fact that he declined the opportunity to consult with a lawyer on four occasions. The impact of these Charter breaches on the defendant is minimal.
[54] Society's interest in the adjudication of a criminal trial on its merits would be seriously prejudiced if highly reliable and critical evidence, such as breath and blood samples, were excluded.
[55] In many cases, the decision to exclude evidence pursuant to section 24(2) involves a balancing of the three factors in Grant. That is not this case. In my opinion, all three favour inclusion of the evidence. The defendant has not persuaded me, on a balance of probabilities, that Charter relief should be granted.
[56] The Defence did not otherwise dispute that the challenged evidence constitutes proof beyond a reasonable doubt. Accordingly, having decided that it is admissible, there must be a finding of guilt.
Released: December 19, 2017
Signed: "Justice J. De Filippis"