Her Majesty the Queen v. Culotta

[Indexed as: R. v. Culotta]

Ontario Reports

Court of Appeal for Ontario

Hourigan, Pardu and Nordheimer JJ.A.

July 25, 2018

142 O.R. (3d) 241 | 2018 ONCA 665

Case Summary

Charter of Rights and Freedoms — Counsel — Duty to inform of right to counsel — Delay

Accused arrested and taken to hospital for treatment following boating accident. Officer informing accused of her right to counsel 29 minutes after arrest during break in her treatment as did not want to interrupt her care. Delay violating accused's rights under s. 10(b) of Charter.

Charter of Rights and Freedoms — Counsel — Retain and instruct — Reasonable opportunity

Accused arrested and taken to hospital for treatment following boating accident. Arresting officer informing accused of her right to counsel at hospital and asking her if she wanted to consult lawyer. Accused reply, "No, my parents should be here soon. We have a family lawyer", not invoking her right to counsel. Officer not required to refrain from furthering his investigation until accused had had reasonable opportunity to speak to counsel. Accused later waiving right to counsel and making inculpatory statement. Officer telling lab technician that hoped to seal some blood for police use but not asking for additional blood to be drawn for that purpose. Doctor had already ordered blood tests including test to determine her blood-alcohol level. Lab technician not acting as police agent in drawing more blood than was needed for medical purposes after accused declined to speak to counsel. Accused's rights under s. 10(b) of Charter not violated.

Charter of Rights and Freedoms — Exclusion of evidence — Multiple breaches

Accused arrested and taken to hospital for treatment following boating accident. Trial judge finding that accused's rights under s. 9 of Charter were violated as officer did not have reasonable and probable grounds for arrest at that time. Trial judge also finding that accused's rights under s. 8 of Charter were violated when police officer seized two vials of blood that had been taken for medical purposes by sealing them with intention of applying for warrant to seize those vials. Accused's s. 10(b) Charter rights violated by 29-minute delay in informing her of her right to counsel. Police not obtaining any evidence as result of ss. 9 and 10(b) violations. Trial judge excluding blood sample evidence but admitting accused's statements to police and hospital records. Doctor ordering test for blood-alcohol level independently of officer's actions and results reported in hospital records were not product of breach of accused's rights. Trial judge erring in failing to consider cumulative effect of breaches. Rookie officer conducting first "over 80" involving a boat causing bodily harm made errors not part of systemic disregard for rights of accused and acting in good faith. Cumulative effect of breaches not requiring exclusion of statements or hospital records.

Facts

A boat operated by the accused crashed into a small island, injuring all five occupants, two of them seriously. The accused was receiving treatment in an ambulance when a police officer arrived. The officer detected a smell of alcohol and asked who had been driving the boat. The accused said that she was the driver. When questioned further, she admitted that she had been drinking. The officer noted some physical symptoms that might have been caused by intoxication, physical injury or emotional upset. He arrested the accused for impaired operation of a vessel, but did not inform her immediately of her right to counsel or caution her because he did not want to interfere with her medical care. He cautioned her and informed her of her right to counsel 29 minutes later, during a break in her treatment at the hospital. When asked if she wanted to consult a lawyer, she answered, "No, my parents should be here soon. We have a family lawyer". The officer tried unsuccessfully to ascertain the name of the family lawyer. An emergency doctor ordered blood to be drawn and a test done to determine the accused's blood-alcohol level. A lab technician drew blood from the accused for medical purposes. Before the technician did so, the officer told her that he hoped to seal some of the blood for police use but he did not request that additional blood be drawn for that purpose. The technician drew more blood than was needed for medical purposes, and the officer sealed two of the blood vials with the intention of applying for a warrant. The accused was then told that she was being released unconditionally but that the investigation would continue. Before she left, the officer asked her for a statement and again informed her of her right to counsel. She said that she did not want to consult a lawyer and provided a statement. The officer subsequently obtained a warrant to seize the sealed vials of blood and hospital records. The trial judge found that (1) the accused's inculpatory statements in the ambulance were made while she was not detained and were voluntary; (2) her statement at the hospital was made after she declined to invoke her right to counsel and was voluntary; (3) the accused's rights under s. 9 of the Canadian Charter of Rights and Freedoms were violated as the officer did not have reasonable grounds to believe that she had committed an offence when he arrested her; and (4) the officer violated the accused's rights under s. 8 of the Charter when he sealed the two blood vials without the accused's consent. He found that the seizure of the medical records was lawful. He excluded the blood samples under s. 24(2) of the Charter but admitted the hospital records and the accused's statements. The accused was convicted on two counts of operation of a vessel over 80 causing bodily harm, and conditional stays were entered on other counts. The accused appealed.

Decision

Held, the appeal should be dismissed.

Majority Opinion

Per Nordheimer J.A. (Hourigan J.A. concurring):

The trial judge did not err in finding that the accused's statements were admissible. The accused was not detained by the police when she voluntarily admitted that she had been driving the boat. The officer did not know if any criminal offence had been committed, and was just beginning his investigation into the collision. The accused was fully informed of her right to counsel prior to giving her statement at the hospital.

The hospital records contained the results of a test the doctor ordered to determine the accused's blood-alcohol level. The trial judge did not err in finding that the hospital records were properly obtained pursuant to the search warrant. The officer had reasonable grounds to believe that the hospital records contained evidence relevant to the charges.

The accused's rights under s. 10(b) of the Charter were violated by the 29-minute delay in informing her of her right to counsel.

The arresting officer did not fail to comply with his implementational duty under s. 10(b). However, the accused understood her right to counsel, and did not invoke that right when she was asked if she wanted to speak to a lawyer. As a result, the officer was not required to refrain from furthering his investigation until the accused had a reasonable opportunity to consult counsel. Accordingly, the vials of blood taken from the accused were not obtained following a breach of the accused's s. 10(b) rights. Moreover, the lab technician was not acting as an agent of the state in furthering the investigation by taking vials of blood after the alleged breach of the accused's s. 10(b) rights. It was not the police who sought and obtained the blood samples; rather, the samples were taken at the express direction of the emergency room physician.

The trial judge erred in failing to conduct a s. 24(2) analysis that took into account the cumulative effect of the three Charter violations. However, a cumulative analysis did not compel a conclusion that the accused's statements and the hospital records should be excluded. The violations of ss. 9 and 10(b) were of middling seriousness, and no evidence was obtained as a result of those violations. Consequently, the impact on the accused's Charter-protected interests was minimal. The s. 8 violation was more serious. However, the trial judge excluded the blood sample evidence. The evidence of the accused's blood-alcohol level obtained through the hospital records was real and reliable evidence that was critical to the Crown's case on the over 80 charge. The violations were almost entirely the result of the officer's inexperience and did not demonstrate a pattern or attitude of disregard for Charter rights. Excluding the statements and the hospital records due to the combined Charter breaches would not enhance the repute of the administration of justice.

Detailed Analysis

Background

[1] Christie Culotta appeals her convictions on two counts of operating a vessel causing bodily harm while having a blood-alcohol content that exceeded 80 mg of alcohol in 100 ml of blood, contrary to s. 255(2.1) of the Criminal Code, R.S.C. 1985, c. C-46 (as amended). Four other charges were conditionally stayed. The appellant challenges the trial judge's conclusions on the admissibility of various pieces of evidence that the appellant says were obtained in violation of her rights under the Canadian Charter of Rights and Freedoms. She seeks to have all of that evidence excluded which would, in turn, lead to her acquittal of those two charges.

The Incident

[2] On August 1, 2013, at approximately 2:00 a.m., the appellant was operating a boat on Lake Muskoka. There were five people in the boat, including the appellant. All of the passengers were female. The appellant and her passengers had been at a social gathering together and were departing from a yacht club, heading toward the appellant's family cottage on an island in the lake.

[3] It was very dark that night as it was raining heavily and there was no moonlight. The boat was moving at a relatively high speed, fast enough that the hull planed above the water. The boat did not slow down before colliding head-on with a small rocky island. The bow of the boat incurred major damage, and left a white V-shaped mark on the rocks above the water line.

[4] When the boat crashed, three of the five women were ejected from the boat. Two of the women landed on the rock island, and one in the water. All of the women were injured, two of them seriously. Help was summoned. All five were taken by boat to a nearby marina where ambulances were waiting. The three least-injured women, including the appellant, were taken to the same ambulance, where they took shelter from the rain and received medical attention from paramedics.

Police Interaction in the Ambulance

[5] At 3:03 a.m., Officer Tunney of the Ontario Provincial Police ("OPP") entered the rear of that ambulance. He detected the odour of alcohol. The three injured women were in the ambulance along with paramedics. Officer Tunney asked who had been driving the boat. One of the women responded "Christie". He then asked another woman the same question, but the appellant interjected, saying "I was the driver". The other woman then confirmed, "My sister was the driver."

[6] Officer Tunney asked the appellant whether she had consumed alcohol. She replied saying, yes, a vodka and tonic, plus one or two drinks at dinner "a long time ago". During this interaction in the ambulance, Officer Tunney observed the appellant to have watery eyes and noted a slight slurring in her speech when she said the word "Sir". He could also see that her face was injured. He was unable to tell whether the watery eyes were from intoxication, crying or the rain. He was unable to tell whether her slurred speech was from intoxication or her facial injury.

[7] Officer Tunney arrested the appellant at 3:17 a.m. for impaired operation of a vessel. He decided not to caution her right away about her right to silence, nor to inform her of her right to counsel, because he did not want to interfere with the medical care that the three women were receiving.

Hospital Events

[8] The ambulance took the three women to a hospital in Bracebridge, Ontario. Officer Tunney followed separately. They all arrived at 3:40 a.m. The women were triaged in the emergency department. When he observed a break in the appellant's treatment, Officer Tunney approached her and read her the standard information about her right to counsel, at 3:46 a.m. The appellant said she understood. When asked if she wanted to consult a lawyer, she answered, "No, my parents should be here soon. We have a family lawyer." She did not know the lawyer's name and said she would talk to her parents when they arrived at the hospital. Next, at 3:47 a.m., Officer Tunney cautioned her about her right to silence. The appellant was not spoken to again by police until 5:30 a.m.

[9] At 4:14 a.m., Officer Tunney made an attempt to ascertain the name of the family lawyer by telephoning the appellant's father. However, he was unsuccessful in doing so as there was a break in the call. About half an hour later, the appellant's parents arrived at the hospital.

[10] During this time, the appellant was examined by the on duty emergency room physician at 4:10 a.m. He ordered blood tests for medical purposes. One of the tests he ordered was to measure blood-alcohol level. At 5:18 a.m., the hospital lab technician drew blood from the appellant. The trial judge found that Officer Tunney spoke to the lab technician before she drew blood and told her he hoped to seal some of the blood for police use. The trial judge found that the lab technician drew extra blood beyond what would be needed for medical purposes, intending that it be held for police. Nobody sought the appellant's consent to draw extra blood samples for police use. Two of the six blood vials taken by the lab technician were sealed by Officer Tunney.

[11] At 5:30 a.m., Officer Tunney returned to the appellant's room. The appellant's father was now present. Officer Tunney told the appellant that she was being released unconditionally, but that the investigation would continue. He asked her for a statement about what happened. Officer Tunney read her the right to counsel information, again, indicating she was under investigation for impaired operation of a vessel causing bodily harm and dangerous operation causing bodily harm. The appellant said that she understood and that she did not want to consult a lawyer. Officer Tunney read the caution about the right to silence. The appellant said that she understood and that she wished to give a statement. The officer reiterated that the interview was voluntary and that she could consult counsel first. The appellant still wanted to speak to police and give her statement.

[12] The appellant gave a statement to Officer Tunney starting at 5:40 a.m. The interview was conducted as they both sat in an open area of the emergency department. The officer wrote down her statement, trying to record it verbatim, and then allowed the appellant to read it. She reviewed it, made some corrections and signed it. Officer Tunney gave evidence that, by that time, the appellant was able to speak clearly, without slurring, and was very co-operative. In her statement, the appellant admitted she was operating the vessel and admitted she had consumed some alcohol.

[13] The police investigation continued. Further witness statements were taken over the following days. On August 23, Officer Tunney applied for a search warrant to seize the sealed vials of blood and the medical records from the hospital. A search warrant was granted under s. 487 of the Criminal Code. The search warrant was executed and the items seized. The blood samples were sent to the Centre of Forensic Sciences and were determined to contain 107 mg of alcohol per 100 ml of blood. A forensic toxicologist compared that result with the hospital lab's analysis and, after converting from the units used in the hospital report, stated that both tests yielded identical alcohol concentrations. The toxicologist also calculated that, based on the ascertained blood-alcohol content at 5:18 a.m., the appellant's blood-alcohol content when the collision occurred at 2:00 a.m. was anywhere from 119 to 172 mg of alcohol per 100 ml of blood.

The Rulings at Trial

[14] The trial judge made the following rulings:

(a) The appellant's admissions in the ambulance were made while she was not detained and were voluntary.

(b) The appellant's statement at the hospital was made after she declined to invoke her right to counsel, when she was no longer under arrest, and was voluntary.

(c) The two extra blood samples were drawn by the lab technician with the intention of assisting the police investigation and without the appellant's consent. They were effectively seized by police once the officer sealed them after the blood was drawn. This seizure was unlawful and violated the appellant's rights under s. 8 of the Charter.

(d) Officer Tunney did not have reasonable grounds to believe the appellant had committed an offence when he arrested her at 3:17 a.m. The arrest violated her rights under s. 9 of the Charter.

(e) The search warrant was capable of being issued on the grounds provided in the affidavit. Although the officer lacked reasonable grounds for arrest on the date of the offence (August 1, 2013), he developed reasonable and probable grounds through further investigation by August 23, 2013, the date when he obtained the search warrant. The seizure of the appellant's medical records was therefore lawful.

[15] Following these rulings, the trial judge admitted into evidence the appellant's statements in the ambulance and her statement at the hospital. The trial judge excluded the blood samples but he admitted the hospital records. The hospital records contained an analysis of the appellant's blood-alcohol content that, when related back to the time of the accident, placed the appellant over the legal limit.

[16] Following on the trial judge's rulings, the appellant re-elected to trial by judge alone. The trial judge was invited by both parties to determine the appellant's culpability based on the evidence he had heard, along with some additional photographs. As the parties expected, the trial judge entered findings of guilt on two counts of operating a vessel "over 80" causing bodily harm.

The Issues

[17] The appellant submits that the trial judge erred

(a) by finding that her utterances to Officer Tunney in the ambulance and her statements at the hospital were voluntary and no Charter infringement occurred;

(b) by finding that the warrant for her hospital records obtained by Officer Tunney was valid;

(c) by concluding that the hospital records derived from her blood samples should not be excluded because her ss. 8 and 10(b) Charter rights in respect of this evidence were not breached; and

(d) by failing to give adequate reasons for his s. 24(2) analysis in respect of s. 9 Charter breaches, or more generally.

Analysis

(a) The Utterances and the Statements

[18] I do not see any error in the conclusions reached by the trial judge regarding the admissibility of either of the statements made by the appellant. In considering this issue, I begin by noting the point made by Iacobucci J. in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, where he said, at para. 71:

If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for "some palpable and overriding error which affected [the trial judge's] assessment of the facts"[.]

(Original emphasis; citation omitted)

[19] In terms of the statements made in the ambulance, I agree with the trial judge's conclusion that the statements were voluntary. Indeed, the appellant made the statement that she had been driving the boat without even being asked. I do not agree with the appellant's submission that she was detained, while in the ambulance, prior to the point when she was arrested. The appellant was in the ambulance, not through any actions of the police, but to receive medical treatment: see R. v. LaChappelle, [2007] O.J. No. 3613, 2007 ONCA 655, 226 C.C.C. (3d) 518, at para. 42. She was not, therefore, "detained" by the police at that time. The mere presence of a police officer in these circumstances does not constitute a detention.

[20] Further, at the time that Officer Tunney entered the ambulance, he did not know if any criminal offence had been committed. He was just beginning his investigation into the conduct surrounding the collision of the boat on the rocks. In embarking on that investigation, Officer Tunney was entitled to interview the persons involved and to ask them questions. There was no reason, at that point in time, for Officer Tunney to inform any of the individuals with whom he spoke of their Charter rights. As McLachlin C.J.C. and Charron J. said in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, at para. 38:

In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.

[21] I also do not accept the appellant's criticism that the trial judge failed to provide meaningful reasons regarding his conclusion with respect to the ambulance statements. The trial judge expressly stated that the appellant was in the ambulance for legitimate medical reasons and was not detained by the police.

[22] In terms of the statement in the hospital, the appellant was fully informed of her right to counsel prior to giving that statement. The appellant expressly declined to consult with counsel. There can be no reasonable challenge to the trial judge's conclusion that the hospital statement was voluntary.

[23] I also reject the appellant's suggestion that the voluntariness of her statement is, in some fashion, suspect because it was not audio or video recorded. The suggestion that this ought to have happened in this case ignores the reality of the location where the statement was taken -- a hospital emergency department. It is unrealistic to expect audio or video recordings to be made in that context. Reducing the statement to writing, and having it reviewed and acknowledged by the appellant, was the realistic and appropriate way to record her statement. I would add, on this point, that non-recorded interrogations are not inherently suspect: Oickle, at para. 46.

(b) The Search Warrant with Respect to Medical Records

[24] Subject to my s. 10(b) analysis below, I also agree with the trial judge's conclusion that the hospital records were properly obtained pursuant to the search warrant. The officer had reasonable grounds to believe that the hospital records contained evidence relevant to the charges. In particular, the officer knew that tests had been done on the appellant's blood that would commonly include tests regarding the appellant's blood-alcohol concentration. On this point, it is important to note that the officer obtained information from other witnesses, subsequent to the night of the arrest, which shed further light on the appellant's drinking prior to operating the boat.

(c) The Blood Sample Evidence and Alleged Charter Breaches

[25] It became apparent at the appeal hearing that the key issue advanced by the appellant was that the blood sample evidence, that is, all of the vials of blood taken from the appellant at the hospital, was obtained following a breach of the appellant's s. 10(b) rights. In advancing this argument, the appellant relies almost exclusively on the decision in R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50.

[26] Section 10(b) of the Charter reads:

10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right[.]

[27] As the Supreme Court held in R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at para. 38, s. 10(b) imposes two duties on the police -- an informational duty and an implementational duty:

The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation . . . requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel.

[28] The informational duty must be discharged "immediately" upon detention to minimize the risk of self-incrimination: Suberu, at para. 41. The implementational duty requires the police to refrain from "eliciting incriminatory evidence from the detainee until [the detainee] has had a reasonable opportunity" to consult counsel or has unequivocally waived the right to do so: Suberu, at para. 38. See, also, a more recent review of these principles in Taylor, at paras. 23-26.

[29] Satisfaction of the informational duty may be complicated in certain cases where the detainee positively indicates a failure to understand his or her rights to counsel: R. v. Evans, [1991] 1 S.C.R. 869; and R. v. Willier, [2010] 2 S.C.R. 429, 2010 SCC 37, at para. 31. In such cases, the police cannot rely on a mechanical recitation of those rights; they must make a reasonable effort to explain those rights to the detainee: Evans, at p. 892 S.C.R.

[30] Here, Officer Tunney informed the appellant of her rights to counsel at 3:46 a.m. When Officer Tunney asked the appellant whether she wanted to speak to a lawyer, the appellant responded:

No, my parents should be here soon. We have a family lawyer.

[31] Officer Tunney said that the appellant did not know the name of the family lawyer. Officer Tunney also said that the appellant said that she would talk to her parents when they arrived at the hospital.

[32] It should be noted, on this issue, that Officer Tunney admitted that he had concerns whether the appellant was fully understanding what he was telling her at the time that he read her rights to counsel. In his notes, Officer Tunney recorded:

. . . not sure if [the appellant] fully understands her situation.

[33] In light of this concern, Officer Tunney was asked, in cross-examination, whether he tried to explain the rights to counsel "in other words". Officer Tunney said that he did not "at that time".

[34] This case therefore engages both the informational and implementational duties of the police in providing the appellant with her rights to counsel: (i) did Officer Tunney inform the appellant of her rights to counsel upon detention; (ii) did the appellant understand those rights; and (iii) did Officer Tunney refrain from eliciting evidence from the appellant until she had a reasonable opportunity to consult counsel? I analyze (ii) and (iii) together as they are intimately intertwined.

(i) Did Officer Tunney Inform the Appellant of Her Rights to Counsel Upon Detention?

[35] The answer to the first inquiry in this case is definitively no. The appellant was arrested at 3:17 a.m. but she was only informed of her s. 10(b) rights at 3:46 a.m. Although Officer Tunney may have had innocent -- even benevolent -- reasons for his delay, there can be no doubt that this suspension violated the appellant's rights to retain and instruct counsel "without delay" (or "immediately") upon detention. However, nothing of any consequence flows from that technical breach of s. 10(b) as I shall come to explain when I address the s. 24(2) issues. The real contest in this case concerns the latter two questions.

(ii) Did the Appellant Understand Her Rights to Counsel? And Did Officer Tunney Provide a Reasonable Opportunity to Consult Counsel Before Eliciting Evidence?

[36] It is of some significance, in my view, that the appellant did not give evidence on the voir dire dealing with the Charter challenges to the admissibility of all of this evidence. We are therefore left trying to divine the appellant's understanding of her rights from the evidence that we do have, which is, principally, the evidence of Officer Tunney.

[37] The answer to the comprehension question would be more complicated had Officer Tunney's uncertain note been the only evidence on the issue. The record, however, demonstrates at least two other instances from which the appellant's comprehension can be gleaned: at 3:46 a.m. and 5:30 a.m. on the morning of the arrest. At both times, Officer Tunney informed the appellant of her right to counsel and, at both times, the appellant affirmatively rejected invoking her rights.

[38] It should be remembered that the police do not have a duty to positively ensure that a detainee understands what the rights under s. 10(b) entail. Officers are only required to communicate those rights to the detainee. As the Supreme Court has repeatedly held, "absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution": R. v. Bartle, [1994] 3 S.C.R. 173, at p. 193 S.C.R. See, also, R. v. Baig, [1987] 2 S.C.R. 537, at p. 540 S.C.R.; Evans, at p. 891 S.C.R.; R. v. Feeney, [1997] 2 S.C.R. 13, at paras. 108-109, per L'Heureux-Dubé J. (dissenting); and Willier, at para. 31.

[39] In the circumstances of this case, it was reasonable for Officer Tunney to infer that the appellant understood her s. 10(b) rights -- notwithstanding his uncertain note. I am satisfied that the appellant understood Officer Tunney's delayed communication of her s. 10(b) rights. The totality of the record evinces no other reasonable conclusion that can be drawn from the evidence.

[40] Another factor complicating this issue is that the trial judge did not address it in his reasons, even though it was fully argued before him. Indeed, in his reasons, the trial judge noted that one of the orders being sought was a declaration that the appellant's blood and medical records were seized in breach of her ss. 8, 9 and 10 rights. Nevertheless, the parties say that we are in the same position, as the trial judge was, to determine this issue since the same evidence is before us. While that is largely true, we are still at a disadvantage because we do not have the benefit of having heard from the witnesses directly.

[41] That said, I do not agree with the appellant that this case mirrors Taylor and that the same result should be reached, that is, that the implementational component of the appellant's s. 10(b) rights was breached and thus the blood sample evidence should be excluded. There are two fundamental differences between the situation here and the one that presented itself in Taylor.

[42] First, after being advised of his rights to counsel, Mr. Taylor expressly requested to speak to his lawyer. The appellant did not. Indeed, the appellant said no in response to Officer Tunney's question whether she wished to speak to a lawyer. Contrary to the appellant's submissions, in my view the appellant did not invoke her rights to counsel, at that time, such that the police should have withheld undertaking any further investigation as it related to the appellant.

[43] Second, unlike the situation here, Mr. Taylor was not injured. He did not require medical treatment. Indeed, Mr. Taylor was only taken to the hospital as a "precaution": Taylor, at para. 7. In contrast, the appellant was injured. She required medical attention and treatment. It was in the course of that treatment, and as a direct result of it, that the appellant's blood was taken.

[44] In Taylor, on a number of occasions, Abella J. stressed that the right to counsel arises immediately upon such a request being made. For example, at para. 24, Abella J. said:

The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention . . . and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel.

(Emphasis added)

[45] This point is again made, at para. 25:

This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay.

(Underlining added; italics in original)

[46] Here, the fact is that the appellant did not ask to speak to a lawyer. Quite the contrary, she said that she did not wish to speak with a lawyer. Counsel attempts to avoid this problem by suggesting that the appellant may not have fully understood her rights. Counsel contends that that possibility, along with the ambiguous nature of her response to the question, are sufficient to invoke the appellant's s. 10(b) rights. As a consequence, the submission goes, the police ought to have held off taking any further investigatory steps, including obtaining the appellant's blood.

[47] But, as I have explained above, I do not accept the appellant's position that her s. 10(b) rights were invoked and then breached. I have already said that the appellant did not request to speak to a lawyer. Further, after being informed of the right to silence (directly after her rights to counsel), the appellant said that she understood those rights and then added, "I'm not drunk". She also asked the officer whether she would get "to blow into one of those machines to prove that I'm not drunk". It is clear from these exchanges, and from other evidence, that the appellant was well aware that she was being investigated by the police regarding a possible criminal offence, i.e., impaired or "over 80" operation of a vessel.

[48] Further, I note the salient fact that, less than two hours later when the appellant was again given her rights to counsel, she expressly declined to speak to a lawyer and gave a statement to the officer. It is difficult to reconcile that evidence with the contention that the appellant was earlier invoking her right to counsel, or that she did not understand her rights to counsel.

[49] Given that the appellant affirmatively rejected invoking her rights to counsel, Officer Tunney was not required to refrain from furthering his investigation until the appellant had a reasonable opportunity to consult counsel. Officer Tunney did not breach the implementational component of the appellant's s. 10(b) rights.

[50] Moreover, I also reject the central tenet of the appellant's argument: that the blood technician was acting as an agent of the state, i.e., of the police, in furthering the investigation by taking vials of blood after the alleged breach of the appellant's s. 10(b) rights.

[51] It is a relevant fact on this issue that it was not the police who sought and obtained the blood samples. Rather, it is clear that the blood samples were taken at the express direction of the emergency room physician. It is difficult to see, in those circumstances, how any breach of the appellant's s. 10(b) rights by the police (if there had been one) could implicate the steps taken by the physician. There is no evidence that the physician knew of any of the interactions between the police and the appellant.

[52] On this latter point, the appellant submits that if her s. 10(b) rights had not been breached, she might have spoken with a lawyer; she might in turn have received advice not to provide any blood samples (or certainly no samples for the purpose of determining blood-alcohol levels); and she might then have advised the emergency room physician that she would not consent to any blood samples being taken.

[53] The problems with that submission are fourfold. First, I have already determined that the appellant's s. 10(b) rights were not invoked and then breached. Second, we do not know what the appellant would have done with any advice that she might have obtained, assuming the advice was not to consent to blood samples being taken. As is often pointed out, the nice thing about advice is that you do not have to take it. Third, we do not know what discussion there was between the appellant and the emergency room physician regarding her medical condition nor do we know what discussion there would have been if the appellant had told the emergency room physician that she did not want blood samples taken. If the emergency room physician explained to the appellant how the blood samples were necessary for her medical treatment, and/or to identify the seriousness of her injuries, the appellant might well have decided to permit the blood samples to be taken. I note that people generally place their health before just about any other concern. Fourth, I reiterate that we have no evidence from the appellant regarding what she would, or would not, have done in these circumstances. In the end result, this entire submission is based on nothing but speculation.

[54] I turn to the appellant's contention that the lab technician was acting at the behest of the police when she took the blood samples. I do not accept that contention. The evidence is clear that the blood was taken, at least in respect of four of the six vials, at the express direction of the emergency room physician. The physician not only expressly directed that the blood samples be taken but that they be tested for, among other things, blood-alcohol content.

[55] The evidence with respect to the other two vials of blood is somewhat confused. The blood technician, who had no direct memory of the particular events of that day, said that it was her practice to take more blood than she was directed to do by the physician in case blood was subsequently needed for other tests. The blood technician could not remember whether that is why she took the extra two vials of blood in this case. Indeed, her direct evidence on this point was:

Usually in trauma situations where a patient comes in, I'll draw multiple vials on a patient in case the doctor adds tests to them.

[56] There is no doubt that Officer Tunney spoke to the blood technician about the taking of the blood and of his desire to seal some of the blood vials for police use. However, Officer Tunney was clear that he did not ask the blood technician to take extra blood for police purposes.

[57] The appellant asserts that the trial judge found that the blood technician acted at the behest of the police and that this court is bound by that factual finding. That assertion does not find a foundation in the reasons, fairly read. The only place where the trial judge could be seen as making such a finding is, at para. 57, where he said:

The lab technician, charged with obtaining blood samples for medical purposes, was co-opted into taking samples for police purposes at the urging of the investigating officer.

[58] However, that sentence has to be read in the context of the reasons as a whole. What is clear from reading the reasons in their totality is that the trial judge was focused on the sealing of the blood vials constituting a seizure under s. 8, not the taking of the blood. Indeed, right before the above quotation from para. 57, the trial judge said:

In my view, on the evidence here, the sealing of additional blood vials amounted to serious state conduct infringing upon the applicant's Charter rights.

(Emphasis added)

[59] I also reject the appellant's secondary argument that, even if it was only the two vials of blood that were seized in breach of the appellant's s. 10(b) Charter rights, that breach irretrievably tainted the hospital records such that they should be excluded. I have already reviewed why the blood samples were taken, that is, at the direct instruction of the emergency room physician. Whether the lab technician did or did not take other blood samples for the police, some blood would have been taken from the appellant, and it would have been tested for blood-alcohol concentration regardless. Consequently, the Charter infringement regarding the two vials of blood is independent of the other blood samples taken. The exclusion of one does not undermine the admissibility and evidentiary value of the other.

(d) Adequacy of Reasons

(i) Absence of s. 24(2) Analysis with Respect to s. 9 Breach

[60] I do not accept the appellant's complaint that the trial judge was required to undertake a separate s. 24(2) analysis arising from the s. 9 Charter breach. No evidence proffered by the prosecution was obtained during the time period that the appellant was improperly put under arrest. The ambulance utterances occurred before the arrest, and the hospital statement occurred after the appellant had been told that she was unconditionally released. There was simply no reason for the trial judge to undertake a s. 24(2) analysis regarding the wrongful arrest. However, that conclusion does not mean that the wrongful arrest does not factor into the necessary s. 24(2) analysis based on the cumulative effect of all of the Charter breaches, a subject I will come to in a moment.

(ii) Inadequacy of Reasons Generally

[61] I also reject any generic challenge to the alleged inadequacies of the trial judge's reasons for the various Charter rulings that he did make. The reasons explain why the trial judge made the rulings that he did, provide public accountability and allow for meaningful appellate review: R. v. M. (R.E.), [2008] 3 S.C.R. 3, 2008 SCC 51, at para. 11. Nothing more is required.

(iii) Absence of s. 24(2) Analysis on the Breaches Cumulatively

[62] The respondent accepts that, if the trial judge failed to conduct a s. 24(2) analysis that took into account the cumulative effect of the various Charter breaches, then that is an error that requires this court to conduct a fresh analysis. Unfortunately, the trial judge did not undertake that cumulative s. 24(2) analysis. As a consequence, this court must do so.

[63] The proper considerations under s. 24(2) were established in Grant, at para. 71. The court must consider (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the conduct on the accused's Charter-protected interests; and (iii) society's interest in the adjudication of the case on its merits.

[64] In this case, there are three Charter violations to be considered. First, the arrest without sufficient grounds, violating the appellant's s. 9 Charter right from 3:17 a.m. to 5:30 a.m. Second, the failure to inform the appellant of her right to consult counsel without delay, violating her s. 10(b) Charter rights from 3:17 a.m. to 3:46 a.m. Third, the unlawful seizure of the two extra vials of blood, violating her s. 8 Charter right to privacy.

[65] In my view, both the first and second Charter violations are of middling seriousness. They are certainly far from the most extreme end of the seriousness spectrum. While the appellant was wrongfully arrested, nothing occurred as a consequence of that act. The appellant was not held in a detention cell or taken to court. In terms of her right to counsel, no statements were sought or taken while she was under arrest nor was any other information obtained from her during this period. Consequently, the impact on the Charter-protected interests of the appellant was minimal. The third violation was admittedly much more serious. Taking bodily samples from an individual in breach of their constitutional rights is a very serious violation of a person's bodily integrity: R. v. Stillman, [1997] 1 S.C.R. 607, at para. 51. However, that evidence was excluded by the trial judge and, thus, not only did it not prejudice the appellant in terms of the charges laid, there has also been a measure of vindication for the Charter breach. Further, there is no evidence in this case that the actions of Officer Tunney, in relation to the blood samples, reflect a systemic disregard of individual rights by the police.

[66] On the other side of the s. 24(2) scale is the fact that the blood-alcohol evidence, obtained through the hospital records, is real and reliable evidence. It is critical to the Crown's case on the operating "over 80" causing bodily harm offences. Without that evidence, the Crown acknowledges that those offences could not be made out. The fact that there may be other offences that the Crown could still pursue does not lessen the impact of the exclusion of the blood evidence as it relates to these serious offences.

[67] Further, the Charter violations that occurred were almost entirely the result of the fact that Officer Tunney was a fourth-class rookie constable conducting his first investigation of an "over 80" operation of a boat causing bodily harm case. He candidly acknowledged the mistakes that he made and volunteered that he would now do things differently with the experience that he has since gained. Good faith honest errors by the police represent less serious Charter infringements. On this point, I do not accept the appellant's contention that the officer's actions improperly interfered with the appellant's medical treatment. There is simply no evidence to substantiate that contention. Indeed, the trial judge found, at para. 71, that Officer Tunney treated the appellant "with respect and dignity, and allowed proper medical treatment to be offered to her as needed".

[68] Consequently, the Charter breaches in this case do not represent conduct from which the court must disassociate itself: Grant, at para. 75. This is also not a case, such as R. v. Pino (2016), 130 O.R. (3d) 561, 2016 ONCA 389, where the Charter breaches were exacerbated by the fact that the police engaged in falsehoods regarding their conduct associated with the Charter violations.

[69] In my view, excluding the ambulance utterances, hospital statements and the hospital records, due to the combined Charter breaches, in these circumstances, would not enhance the repute of the administration of justice. To the contrary, it would have the effect of permitting the appellant to walk away from very serious offences involving the "over 80" operation of a vessel that resulted in serious injuries to two individuals. In addition, these violations do not demonstrate a pattern or attitude of disregard for Charter rights, or for the law generally, by the police. To the contrary, Officer Tunney appears to have acted, at all times, with consideration for the appellant's situation and a desire to respect her rights while, at the same time, conducting his investigation.

Conclusion

[70] In the end result, I would not give effect to any of the grounds of appeal. The appeal is dismissed.

Dissenting Opinion

Per Pardu J.A. (dissenting):

[71] The affront to human dignity embodied in a police officer's "co-opting a lab technician" into taking blood samples for police purposes when the technician was taking blood samples to carry out a physician's orders is so serious that, in my view, the hospital records of the analysis of the appellant's blood should be excluded, despite the absence of a direct causal connection between the multiple breaches of the Canadian Charter of Rights and Freedoms and the creation of hospital records containing the blood analysis.

The Charter Breaches

[72] The finding of fact by the trial judge, at para. 57, was not challenged on appeal by either the Crown or the defence:

The lab technician, charged with obtaining blood samples for medical purposes, was co-opted into taking samples for police purposes at the urging of the investigating officer.

[73] The trial judge also concluded, at para. 54, that "the sealing of the blood samples amounted to an immediate seizure of a bodily sample in clear violation of the applicant's s. 8 Charter right".

[74] The majority has identified, at para. 64, the Charter breaches to be considered:

(1) The arrest without reasonable and probable grounds to believe the appellant had committed an offence, violating her s. 9 Charter right.

(2) The failure to inform the appellant of her right to counsel from 3:17 a.m. to 3:46 a.m., violating her s. 10(b) Charter rights.

(3) The unlawful seizure of two extra vials of blood, violating the appellant's s. 8 Charter right.

[75] To that list I would add another violation. The Crown concedes that the trial judge made no finding about the appellant's alleged assertion of her right to counsel, and both parties ask us to come to our own conclusions on the basis of the record before us.

[76] I would hold that the appellant did invoke her right to counsel when she responded to the officer's question as to whether she wanted to speak to a lawyer "now" by saying "no, my parents should be here soon. We have a family lawyer." This could be reasonably understood as a statement that she was going to get the name of a lawyer from her parents, and that is the person to whom she wished to speak. The officer understood that was her intention; he attempted to contact the appellant's father to get the name of the lawyer, but the telephone connection was lost through no fault of the officer.

[77] Despite this communication the officer went on to co-opt the lab technician into taking extra samples of the appellant's blood, despite his duty to hold off until the appellant had an opportunity to consult counsel: R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50, at para. 26.

[78] The officer noted his concern that the appellant was disoriented and that she might not fully understand her situation. She had been injured in the accident. Her response to the officer's question contained sufficient indication of an intention to consult counsel, that the officer should have refrained from taking further steps to gather evidence from her until she either clearly indicated she did not want to consult counsel, or until she had the opportunity to do so.

[79] This communication is not the functional equivalent of an answer like "no, not right now", "not now", "can I think about that", or silence, which have in other cases been treated as a failure to invoke the right to counsel or a refusal to do so: R. v. Owens (2015), 127 O.R. (3d) 603, 2015 ONCA 652, at paras. 2-3, 5, 22-31; R. v. Fuller, [2012] O.J. No. 4057, 2012 ONCA 565, at paras. 17-19, 32; R. v. Green, [2003] B.C.J. No. 2789, 2003 BCCA 639, at para. 3; R. v. Knoblauch, [2018] S.J. No. 85, 2018 SKCA 15, at paras. 32, 39-49.

Were the Hospital Records Obtained in a Manner that Requires a S. 24(2) Analysis?

[80] I recognize that there is no causal connection between the Charter breaches and the creation of the hospital records. The hospital samples, as distinguished from the police samples, were taken on a physician's instruction.

[81] The same issue arose in Taylor.

[82] In Taylor, an accused indicated he wanted to speak to counsel, but was not given the opportunity to do so. He was taken to the hospital and medical staff took five vials of blood from him for medical purposes. Police demanded and obtained a second set of blood samples for investigative purposes. The trial judge excluded the analysis of the police blood samples because of the Charter breach -- the failure to provide access to counsel -- but admitted the analysis of the hospital samples. Writing for the Supreme Court of Canada, Abella J. held that both the hospital blood analysis and the police blood analysis should be excluded and observed, at paras. 40 and 41:

Moreover, the impact of the breach on Mr. Taylor's Charter-protected interests was serious. Arrested individuals in need of medical care who have requested access to counsel should not be confronted with a Hobson's choice between a frank and open discussion with medical professionals about their medical circumstances and treatment, and exercising their constitutional right to silence. The police placed Mr. Taylor's medical interests in direct tension with his constitutional rights. His legal vulnerability was significant, and, correspondingly, so was his need for his requested assistance from counsel.

There is no need to speculate about the advice Mr. Taylor might have received had he been given access to counsel as he requested, such as whether he would have refused to consent to the taking of any blood samples for medical purposes. It is clear that the denial of the requested access had the effect of depriving him of the opportunity to make an informed decision about whether to consent to the routine medical treatment that had the potential to create -- and in fact ultimately did create -- incriminating evidence that would be used against him at trial. The impact of the breach on Mr. Taylor's s. 10(b) rights was exacerbated when Mr. Taylor was placed in the unnecessarily vulnerable position of having to choose between his medical interests and his constitutional ones, without the benefit of the requested advice from counsel. Mr. Taylor's blood samples, taken in direct violation of his right to counsel under s. 10(b), significantly compromised his autonomy, dignity, and bodily integrity. This supports the exclusion of this evidence. As this Court said in Grant, "it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's . . . bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability" (para. 111).

[83] Here, police obtained a warrant for the hospital blood analysis records; however, as noted in Taylor, at para. 36: "police should not be able to circumvent the duty to implement an arrested individual's s. 10(b) rights by attempting to cure any tainted evidence with a warrant authorizing its seizure".

[84] R. v. Pino (2016), 130 O.R. (3d) 561, 2016 ONCA 389 is also helpful when considering the impact of Charter breaches on the exclusion of evidence where there is no causal link between the breaches and the collection of the evidence. In Pino, officers violated the Charter initially, by their overly aggressive execution of an arrest. Police then immediately searched the accused's car, and found marijuana. They then failed to advise the accused properly of her rights to counsel and kept her incommunicado for roughly five and a half hours. Despite the fact that the marijuana was found before the violations of s. 10(b) of the Charter, Laskin J.A. concluded that there was a sufficient temporal and contextual connection between the obtaining of the evidence and the Charter breaches to warrant application of s. 24(2). He noted, at para. 72,

. . . the following considerations should guide a court's approach to the 'obtained in a manner' requirement in s. 24(2):

-- The approach should be generous, consistent with the purpose of s. 24(2)

-- The court should consider the entire 'chain of events' between the accused and the police

-- The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

-- The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections

-- But the connection cannot be either too tenuous or too remote.

[85] R. v. LaChappelle, [2007] O.J. No. 3613, 2007 ONCA 655, 226 C.C.C. (3d) 518 is also instructive. An accused alleged, inter alia, that his s. 10(b) rights to counsel were violated because he did not receive competent advice from duty counsel. Hospital blood samples taken solely for medical purposes were lawfully sealed by police before the accused had finished speaking to duty counsel. The Charter breach complained of related to duty counsel, not the police. There, the absence of a factual or temporal connection between the breach, if it existed, and the evidence meant that no analysis under s. 24(2) was required. Rosenberg J.A. noted, at para. 47:

In R. v. Strachan (1988), 46 C.C.C. (3d) 479 (S.C.C.), at 495, Dickson C.J.C. held that s. 24(2) is triggered, "if the infringement or denial of the right or freedom has preceded, or occurred in the course of, the obtaining of the evidence. It is not necessary to establish that the evidence would not have been obtained but for the violation of the Charter." See also R. v. Goldhart (1996), 107 C.C.C. (3d) 481(S.C.C.) at paras. 34-40. But here the trial judge found that the vials had already been sealed and were no longer within the appellant's control when he finished talking to duty counsel. There was no factual or temporal connection between the alleged breach and the obtaining of the evidence; the evidence had already been obtained before the alleged breach of the appellant's rights because of the incompetent legal advice.

(Emphasis added)

[86] Conversely, in this case, as is conceded in oral argument by the Crown, there was a sufficient contextual and temporal connection between the hospital blood analysis and the Charter breaches to require an analysis under s. 24(2) as to whether that evidence should be excluded. All of the breaches occurred in a short period of time and related to seizure of the appellant's blood, or records about the analysis of her blood.

Should the Hospital Records be Excluded?

[87] I turn then to the analysis mandated by R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32. The Crown acknowledges that the trial judge did not consider the cumulative effect of the Charter breaches in his s. 24(2) analysis, and again both parties invite this court to come to our own conclusions on that issue.

The Seriousness of the Breach

[88] Co-opting extra blood samples was a serious breach by police. There are statutory regimes prescribed for the taking of breath or blood samples where impaired driving offences are suspected. These regimes must be well known to police. For police to sidestep these procedures by inserting themselves into an accused person's medical care is a grave misstep. The violation is made that much worse when committed after the appellant had invoked her right to counsel at a time when police were under a duty to refrain from taking such steps.

[89] The other Charter breaches are relevant, but do not materially add to the seriousness of the breach described above. Some allowance should be made for the chaos following the boating accident and the injuries, in the early morning hours, on an island and during a torrential downpour.

[90] I would not excuse the Charter breaches because the officer was inexperienced. He had a senior officer with him at the hospital who was guiding his steps. There is concern that this was not an isolated incident. This particular hospital had a tray kept in the laboratory refrigerator reserved for police blood samples, and had created a form for use when blood samples were taken at the behest of police.

Impact on the Charter-Protected Interests of the Appellant

[91] The co-opting of a lab technician taking blood samples on a physician's instruction in order to take additional samples for a police investigation is an invasion of the appellant's bodily integrity and dignity of the utmost seriousness, at a time when she was vulnerable because of her need for medical attention.

[92] As the trial judge noted, at para. 51, the Supreme Court has been highly critical of overly cozy arrangements between police and medical staff.

[93] In R. v. Colarusso, [1994] 1 S.C.R. 20, the Supreme Court reviewed loose arrangements between hospitals and police regarding the seizure of blood samples. On the facts of that case, at para. 79, the majority noted:

The presence of the police officer in the emergency room in such circumstances can only serve to undermine the physician-patient relationship, as the accused would likely interpret these facts that the medical staff was operating in conjunction with the police investigation. Such a scenario would have catastrophic results if an accused resisted essential treatment for fear it might incriminate him in future criminal proceedings. Although I have not categorized the assistance of the police officer at this early stage as a seizure, I would emphasize that such complicity is at best unwise and should be avoided at all times unless the assistance of the police officer is necessary in order to give essential medical treatment because of exigent circumstances. In this situation, the presence of the officer was unwarranted, as the hospital staff could have obtained a sample themselves. The following words used in Dyment at p. 434 are especially apt here:

Under these circumstances, the courts must be especially alert to prevent undue incursions into the private lives of individuals by loose arrangement between hospital personnel and law enforcement officers. The Charter, it will be remembered, guarantees the right to be secure against unreasonable searches and seizures.

Society's Interest in Adjudication on the Merits

[94] The blood analysis is reliable evidence, but its exclusion would not bring to an end the Crown's case. The charge of impaired operation of a vessel causing bodily harm could proceed if the over 80 charges were dismissed as this charge was conditionally stayed by application of the rule precluding multiple convictions: R. v. Kienapple, [1975] 1 S.C.R. 729; R. v. Letendre, [1979] B.C.J. No. 1496, 46 C.C.C. (2d) 398; R. v. McLeod, [1983] O.J. No. 81, 6 C.C.C. (3d) 29; Criminal Code, R.S.C. 1985 c. C-46, s. 686(8). The Crown has evidence that the appellant was operating the boat, and that she had been drinking. Her friends in the boat were injured. Conviction will follow if the Crown can prove to the criminal standard, that the appellant's ability to operate a boat was impaired to any degree, ranging from slight to great: R. v. Stellato (1994), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478.

Overall Balancing

[95] I would conclude that admission of the hospital blood analysis records would bring the administration of justice into disrepute, given the gravity of the invasion of the appellant's Charter-protected interests. The purpose of exclusion is not to punish police but to disassociate the justice system from the Charter violations and to preserve the long-term repute of the administration of justice.

Disposition

[96] I agree with the majority view about the admissibility of the appellant's statements.

[97] I have reservations about the adequacy of the information to obtain ("ITO"). While there was ample basis in the ITO to believe that the appellant had consumed alcohol, and that she had operated a vessel, the basis for concluding that the seizure of the blood samples would afford evidence of an offence was thin. The officer said only that he believed "testing for the presence of alcohol is a common procedure" without indicating the source of his belief. However, I need not express any further opinion on this issue, given the outcome of my analysis on the Charter violations and s. 24(2).

[98] I would allow the appeal, quash the convictions and remit the impaired operation of a vessel causing bodily harm charges to the Superior Court of Justice for trial.

Result

Appeal dismissed.

End of Document