Her Majesty the Queen v. Campbell

[Indexed as: R. v. Campbell]

Ontario Reports

Court of Appeal for Ontario

Watt, van Rensburg and D.M. Brown JJ.A.

April 3, 2019

145 O.R. (3d) 357 | 2019 ONCA 258

Case Summary

Charter of Rights and Freedoms — Exclusion of evidence — Police obtaining warrant to seize accused's urine and blood samples that were taken for medical purposes — ITO misleadingly stating that police officer overheard nurse mention accused's ethanol level — Officer asking nurse for urine ethanol results — Accused's rights under s. 8 of Charter violated as ITO did not support issuance of warrant without ethanol results — Trial judge erring in finding that nurses were acting as state agents when they drew accused's blood — Fresh s. 24(2) analysis on appeal leading to conclusion that violation was serious and that it had significant impact on accused's Charter-protected interests — Evidence of accused's blood alcohol concentration properly excluded under s. 24(2) of Charter — Crown appeal from acquittal dismissed — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Charter of Rights and Freedoms — Search and seizure — Police obtaining warrant to seize accused's urine and blood samples taken for medical purposes — ITO stating that police officer overheard nurse mention accused's ethanol level — Accused's father testifying that officer asked nurse for urine ethanol results — Trial judge not articulating how he arrived at conclusion that officer asked nurse for results — Trial judge's reasons sufficient as problems with officer's credibility were apparent on record while father's credibility was not challenged — ITO not supporting issuance of warrant without ethanol results — Accused's rights under s. 8 of Charter violated — Canadian Charter of Rights and Freedoms, s. 8.

Facts

The accused was charged with impaired driving causing death and driving over 80 causing death. When police officers questioned the accused at the hospital after the accident, one of the officers noticed a faint odour of alcohol, but did not suspect that the accused was impaired. The police ultimately obtained a warrant to seize urine and blood samples taken for medical reasons by hospital staff. The information to obtain ("ITO") the warrant stated that a police officer had overheard an ER nurse mention the accused's ethanol level. The accused's father testified that the officer had asked the nurse for the urine ethanol results. Analysis of the blood revealed that the accused's blood alcohol concentration was well over the legal limit at the time of the accident. The accused brought an application to exclude the evidence of her blood alcohol concentration under s. 24(2) of the Canadian Charter of Rights and Freedoms. The trial judge concluded that the officer asked the nurse for the accused's urine ethanol results, and found that, once the illegally obtained urine ethanol results were excised, the ITO was insufficient to support the issuance of the warrant, so that the accused's rights under s. 8 of the Charter were violated. He excluded the evidence under s. 24(2) of the Charter. The accused was acquitted. The Crown appealed, arguing that the trial judge provided insufficient reasons for his Charter ruling.

Held, the appeal should be dismissed.

The trial judge did not articulate how he arrived at the conclusion that the officer asked the nurse for the urine ethanol results. However, his reasons were sufficient because the factors supporting and detracting from the credibility and reliability of the witnesses on that issue were apparent on the record. The officer's evidence was inconsistent with his own notes and another officer's evidence, whereas the accused's father's credibility was not challenged. The Crown conceded that, without the urine ethanol results, the ITO could not support the issuance of the warrants, and that the accused's rights under s. 8 of the Charter were violated.

In his analysis under s. 24(2) of the Charter, the trial judge erred in finding that the nurses who drew the accused's blood were state or police agents. Because of the generality of the trial judge's s. 24(2) analysis, it was impossible to say how that factor affected his decision to exclude the evidence. However, a fresh s. 24(2) analysis on appeal led to the conclusion that the evidence was properly excluded. The Charter-infringing state conduct was serious. The police asked the medical staff to take urine, taken for medical purposes, and test the result for their own, non-medical purpose, without the accused's consent and without legal authority. While the accused's confidential medical information was not obtained in a physically intrusive manner, it was a breach of medical confidentiality and the impact of the breach on her informational privacy interest was significant. The evidence was not discoverable in the absence of the breach. The evidence was reliable and essential to the Crown's case. On balance, the admission of the evidence would bring the administration of justice into disrepute.

Judgment

VAN RENSBURG J.A.:

Introduction

[1] This is a Crown appeal of an acquittal. The sole ground of appeal is that the trial judge provided insufficient reasons for his Canadian Charter of Rights and Freedoms ruling excluding certain evidence from the trial.

[2] On October 27, 2014, the respondent's car collided head on with another car that was travelling in the wrong direction. Unfortunately, the occupant of the second car died of her injuries. The respondent was brought to the hospital. While there, she responded to the questions of two police officers. One of the officers noticed a faint odour of alcohol, but did not suspect that the respondent was impaired or that she had done anything to contribute to the collision. Urine and blood samples were taken at the hospital and eventually seized under warrant. Subsequent analysis of the blood revealed that, at the time of the collision, the respondent's blood alcohol concentration was well over the legal limit.

[3] The respondent was charged with impaired care and control of a motor vehicle causing death, contrary to (what was then) s. 255(3) of the Criminal Code, R.S.C. 1985, c. C-46, and care or control "over 80" causing death, contrary to s. 255(3.1). By way of a pre-trial application, the respondent challenged the admissibility of her medical records and urine and blood samples that were seized under warrant, as well as oral statements she made to the police at the hospital and a written statement she later provided to police. The trial judge concluded that this evidence was obtained in breach of ss. 7 and 8 of the Charter and must be excluded. After this evidence was excluded, the Crown called no evidence and the respondent was acquitted.

[4] The Crown asserts that the trial judge provided insufficient reasons for granting the respondent's Charter application, and asks this court to set aside the acquittal and order a new trial.

[5] For the reasons that follow, I would decline to do so.

Analysis

(1) The Finding that P.C. Robinson Asked for the Respondent's Urine Ethanol Results

[6] A Crown appeal of an acquittal will only be allowed if the Crown establishes that the trial judge made an error of law, and that the error "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal": R. v. Graveline, [2006] 1 S.C.R. 609, 2006 SCC 16, at para. 14. Only two of the issues raised by the Crown approach this threshold: (i) whether the trial judge provided insufficient reasons for his finding that P.C. Robinson (one of the officers who attended at the hospital) asked a nurse for the respondent's urine ethanol results; and (ii) whether the trial judge provided insufficient reasons for excluding the search warrant evidence pursuant to s. 24(2) of the Charter. The determination of these issues is dispositive of the appeal.

[7] The police obtained search warrants authorizing the seizure of the respondent's medical records pertaining to her treatment in hospital following the collision, as well as the samples of her blood and urine that were taken while she was there. The information to obtain ("ITO") stated, among other things, that "[d]uring the course of the investigation police learned that the [respondent] was taken to hospital and basic trauma blood work and urine were drawn for medical purposes", and that the respondent's "blood and urine were tested and registered positive [and] well above the legal limit for alcohol". (This statement was inaccurate in part, because at the time the ITO was prepared, the police had no information about the results of the respondent's blood test.) The ITO also stated that P.C. Robinson "overheard an ER nurse mention that [the respondent's] urine results were 47 millimols [millimoles]" and noted that this was "equal to a BAC [blood alcohol concentration] of 186 mgs /100 mL of blood" (emphasis in original). The ITO also referred to P.C. Robinson's observation of an odour of alcohol; statements by the respondent, including that she had consumed one alcoholic drink that evening; data downloaded from the air-bag control module of the respondent's vehicle indicating that it was travelling 23 kph above the speed limit, and that the driver took no evasive action prior to the collision; and an anonymous Crime Stoppers tip claiming that the respondent was impaired at the time of the collision.

[8] The respondent's primary position in her Charter application was that her statements were compelled, that the urine ethanol results were illegally obtained by P.C. Robinson, and that once such information was excised, the ITO was insufficient to support the warrants. As a result, the medical records and urine and blood samples were seized in violation of s. 8 of the Charter and ought to be excluded from evidence pursuant to s. 24(2).

[9] How the police came to know about the respondent's urine ethanol readings was a central issue in the Charter application and the focus of much of the evidence and argument on the voir dire. The respondent's counsel at trial described his argument on this point as the "fundamental thrust" of the application. The trial Crown identified the "single overriding theme of what we're doing today" as "a determination of whether or not the nurse's statement to Officer Robinson about Ms. Campbell's ethanol levels was obtained illegally such that it must be excluded". The trial Crown also conceded that, if the trial judge were to find that P.C. Robinson asked for the results (and not just overheard them, as stated in the ITO) and the results were excised from the ITO, the ITO could not support the warrants. Specifically, the trial Crown stated that if the urine ethanol results were to be excised from the ITO, "this warrant is extremely weak if not completely deficient, and so there is no further case".

[10] The trial judge ultimately excised from the ITO both the respondent's statements to police (after finding they had been comp443 d on the basis of R. v. White, [1999] 2 S.C.R. 417 and R. v. Soules (2011), 105 O.R. (3d) 561, 2011 ONCA 429, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 375), and after concluding that the police had obtained the information illegally, the reference to the respondent's urine ethanol results. At paras. 22 to 25 of his reasons, after addressing what was left, the trial judge concluded that the ITO was insufficient to support the issuance of the warrants.

[11] The Crown focuses on the trial judge's finding, at para. 18 of his reasons, that "[t]he nurse provided the information to Constable Robinson after he asked about her readings". The Crown submits that the trial judge erred in law because he provided no reasons to explain this finding, and, in particular, how he resolved the conflict in the evidence between P.C. Robinson's testimony that he "overheard" the nurse speaking of the urine ethanol results and that of Douglas Campbell, the respondent's father, that he heard the officer ask a nurse, "Where is her level?" or "Where's her level at?" The Crown argues that the trial judge's failure to explain the basis for his credibility finding, and in particular why he rejected the officer's evidence and accepted Mr. Campbell's evidence, is a fatal deficiency in his reasons.

[12] In R. v. M. (R.E.), [2008] 3 S.C.R. 3, 2008 SCC 51, at para. 51, McLachlin C.J.C. stated that "[t]he degree of detail required in explaining findings on credibility may . . . vary with the evidentiary record and the dynamic of the trial". She explained that "[t]he factors supporting or detracting from credibility may be clear from the record", and, "[i]n such cases, the trial judge's reasons will not be found deficient simply because the trial judge failed to recite these factors": at para. 51.

[13] As I will explain, although the trial judge did not articulate how he arrived at his conclusion that P.C. Robinson asked the nurse for the urine ethanol results, I consider his reasons to be sufficient because the factors supporting and detracting from the credibility and reliability of the witnesses on this issue were apparent on the record.

[14] A key point here is that P.C. Robinson's evidence on the voir dire was not simply that he "overheard" a nurse mention the urine ethanol results, as stated in the ITO. Rather, after confirming that he overheard what a nurse was saying, the officer testified that he heard the sound of surprise, that he turned and looked, and that the nurse then looked at him and repeated her comment. Indeed, in his notebook P.C. Robinson wrote, "Overheard nurses, Ethanol level 47", while his typed notes stated, "I overheard a nurse mention urine results with ethanol level 47. I looked toward the nurses and the statement was repeated to me. I was unsure what that meant but noted it due to the surprised sound in the nurse's voice."

[15] P.C. Robinson testified that he did not know at the time nor at the voir dire what was meant by "47" or what a very high level of ethanol was, but D.C. Chad Lee (the lead investigator) testified that when he spoke with P.C. Robinson on the day of the collision, P.C. Robinson told him that the respondent's ethanol levels were 43 and very high. The "43" reading was consistent with the hospital records. D.C. Lee's notes also stated that P.C. Robinson advised him that the nurse "told" him the information. And while P.C. Robinson testified that he smelled alcohol on the respondent prior to speaking to D.C. Lee, D.C. Lee testified that according to his notes P.C. Robinson told him that he could not smell anything.

[16] Mr. Campbell testified that he overheard P.C. Robinson ask a nurse, "Where is her level?" or "Where's her level at?" Under cross-examination he did not waver. In his submissions on the Charter application, Crown counsel challenged only the reliability of Mr. Campbell's evidence, not his credibility. He suggested that Mr. Campbell was mistaken in what he overheard, due to his position (eight to ten feet away from P.C. Robinson, whose back was turned), or in his interpretation of what was said (which the Crown suggested was capable of a number of interpretations).

[17] The problems with the contention that the respondent's urine ethanol results had been simply "overheard" by the officer were apparent on the record. In important respects, P.C. Robinson's evidence was inconsistent with his own notebook notes and with D.C. Lee's evidence. These inconsistencies undermined P.C. Robinson's credibility. By contrast, Mr. Campbell's credibility was not challenged. While his position was not ideal for overhearing what took place between P.C. Robinson and the nurse, he was clear in recounting what he could and could not hear. And, while the words Mr. Campbell heard might well be ambiguous in the abstract, in the context of this case their meaning is obvious -- the officer was referring to the respondent's urine ethanol level. In these circumstances it is apparent from the record why the trial judge found that P.C. Robinson asked a nurse about the respondent's urine ethanol levels.

[18] Accordingly, I would not give effect to the Crown's argument that the trial judge's reasons on this point were insufficient. As already noted, the trial Crown conceded that it would be a breach of the Charter if the trial judge were to find that P.C. Robinson asked for the results and that, without the urine ethanol results, the ITO could not support the warrants (thereby constituting a breach of s. 8). I turn now to the trial judge's decision to exclude the search warrant evidence under s. 24(2) of the Charter.

(2) The Trial Judge's Decision to Exclude the Evidence Obtained Pursuant to the Warrants

[19] The Crown's second main argument on appeal is that the trial judge's s. 24(2) analysis was inadequate. In particular, the Crown asserts that the trial judge made no case-specific findings, but addressed the Grant factors (R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32) in general terms only. Because of this, according to the Crown, it is impossible to determine the extent to which the trial judge took into consideration an erroneous factor -- that is, his finding that the nurses were acting as state agents when they took the respondent's blood without her consent. The Crown argues that if the trial judge had taken into consideration only the breach he found associated with the disclosure of confidential medical information (the urine ethanol results), the exclusion of evidence under s. 24(2) was not inevitable.

[20] The trial judge was highly critical of the circumstances in which the respondent's blood was taken. At paras. 17-19 of his reasons, he noted that the respondent had refused to have blood taken or to have a needle inserted into her, both with EMS personnel and at the hospital. He accepted that she had a phobia about needles. He described the nurses' taking of the respondent's blood as "a deliberate over-ride of her feelings". The trial judge then stated that the nurses were acting as police agents when they took the respondent's blood without her consent. He repeated this characterization again when he referred to the evidence of alcohol readings having been illegally obtained by nurses as agents of the state, and he concluded, at para. 19, that the evidence was "the product of intrusion of the body of the [respondent]".

[21] The Crown contends that the conclusion best when they took the respondent's blood without her consent is not supported in fact or in law. The Crown points to evidence of a doctor's order to draw blood, and the respondent's acquiescence to her blood being drawn after she was told it was "hospital procedure", as well as the absence of any direct evidence of a police request. The respondent's counsel acknowledges that the trial judge's conclusion that the nurses were acting as police agents when the blood was taken is "troublesome".

[22] The trial judge explained why he concluded that the nurses took the respondent's blood without her consent, however he did not explain, and there is no real evidence to support, his conclusion that the nurses were acting as police or state agents when they did so. I would therefore accept the Crown's reasonable submission that the trial judge did in fact take into consideration an irrelevant factor in the course of his s. 24(2) analysis. And I agree that, because of the generality of the trial judge's s. 24(2) analysis, it is impossible to say that how this factor affected his decision to exclude the search warrant evidence.

[23] This is not the end of the matter, however. Where a trial judge's ruling on s. 24(2) is unreasonable or reflects an error in principle, an appellate court is entitled to intervene and conduct the analysis afresh: R. v. Davidson, [2017] O.J. No. 1572, 2017 ONCA 257, at para. 46. This court is entitled to do so here because of the trial judge's reliance on an erroneous finding in his decision to exclude the search warrant evidence.

[24] I pause here to note that the Crown argued that it would be impossible for this court to conduct a s. 24(2) analysis afresh due to the lack of clear factual findings by the trial judge upon which to ground the analysis. In particular, the Crown submitted that the trial judge's failure to determine whether P.C. Robinson was acting in good faith or bad faith prevents this court from assessing the first Grant factor -- i.e., the seriousness of the Charter-infringing state conduct.

[25] I disagree. In assessing the first Grant factor, the court considers the nature of the police conduct and whether it involves misconduct from which the court should seek to dissociate itself: R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, 2009 SCC 34, at para. 22. At para. 23 of her reasons in Harrison, McLachlin C.J.C. suggested that the metaphor of a spectrum used in R. v. Kitaitchik, [2002] O.J. No. 2476, at para. 41, may assist in characterizing police conduct for purposes of this factor in the Grant analysis. In Kitaitchik, Doherty J.A. wrote, at para. 41:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights[.] . . . What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.

[26] Here, the trial judge found, at para. 18 of his reasons, that "[t]he nurse provided the information [regarding the respondent's urine ethanol results] to Constable Robinson after he asked about her readings". The trial judge was critical of the police conduct, stating, at para. 20: "In effect, the police had the answers and then justified their actions after-the-fact by getting a warrant." These findings provide this court with a sufficient basis upon which to assess the seriousness of the Charter-infringing state conduct and to place this conduct along the fault spectrum described by Doherty J.A. in Kitaitchik.

[27] In my view, the Charter-infringing state conduct here was at the serious end of the fault spectrum. The police intentionally obtained information from hospital staff in breach of medical confidentiality, and relied on that information to obtain a warrant that otherwise could not have been issued.

[28] At trial, Crown counsel acknowledged that if the trial judge were to accept the defence position as to how the urine ethanol results were obtained, then the first Grant factor would lean toward exclusion. In fact, in his submissions, when referring to the disclosure of the respondent's confidential medical information, the trial Crown stated, "I will never try to defend what this unnamed nurse did." Given that the trial judge found that the nurse divulged the confidential medical information because P.C. Robinson asked for it, it is difficult to see how the officer's conduct can be condoned if the nurse's conduct was indefensible. Instead, I am of the view that P.C. Robinson's conduct in intentionally asking for the confidential medical information is precisely the type of conduct from which the court must distance itself, irrespective of the fact (which was emphasized by the Crown on appeal) that the officer otherwise treated the respondent with courtesy and respect.

[29] As for the second Grant factor -- the impact of the breach on the Charter-protected interests of the accused, the, stated that, on its face, "police access to hospital records seems to favour exclusion", but later argued that because this evidence was collected in a non-intrusive manner, this factor did not lean toward inclusion or exclusion.

[30] In my view, although the respondent's confidential medical information was not obtained in a physically intrusive manner, the impact of the breach on her informational privacy interest was significant.

[31] The respondent was in hospital to receive medical care after the collision. As a patient, she was vulnerable, "forced to reveal information of a most intimate character and to permit invasions of [her] body if [she] is to protect [her] life or health": R. v. Dyment, [1988] 2 S.C.R. 417, at p. 433 S.C.R. She was entitled to expect that the police would access her medical information only through proper legal channels -- by the "well-known and recognized procedures for obtaining such evidence when the police have reasonable and probable grounds for believing a crime has been committed": Dyment, at p. 439 S.C.R. Instead, the police, with no reasonable and probable grounds to believe that the respondent had committed an offence, obtained her medical information unlawfully by asking a nurse to divulge the respondent's urine ethanol results.

[32] In Dyment, the police received the accused's blood samples from a doctor who handed them over at the hospital. La Forest J. described the Charter breach as serious, stating, at p. 439 S.C.R.:

[T]he sense of privacy transcends the physical. The dignity of the human being is equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation. In my view, the trust and confidence of the public in the administration of medical facilities would be seriously taxed if an easy and informal flow of information, and particularly of bodily substances from hospitals to the police, were allowed.

[33] Similarly, in this case a sample of a substance from the respondent's body -- her urine -- was taken for medical purposes. It was tested for ethanol. Police asked for and received this test result without legal authority, and then used this test result for their own, non-medical purpose, which was a purpose to which the respondent did not consent. In my view, this was a serious violation of the respondent's dignity, which strongly favours exclusion.

[34] On appeal, Crown counsel pressed the argument that, without the breach relating to how the blood samples were obtained, the effect of the remaining breach involving the illegal disclosure of the respondent's confidential medical information on her Charter-protected interests was not so serious as to inevitably require the exclusion of the search warrant evidence. She relied on R. v. Erickson, 1992 ABCA 69, [1992] A.J. No. 221, 72 C.C.C. (3d) 75 (C.A.), affd, [1993] 2 S.C.R. 649, and R. v. Culotta (2018), 142 O.R. (3d) 241, [2018] O.J. No. 3946, 2018 ONCA 665, affd [2018] S.C.J. No. 57, 2018 SCC 57, as examples of cases where a breach of medical confidentiality did not result in exclusion of an accused's blood samples.

[35] In Erickson, a police officer attended the hospital after a head-on motor vehicle collision and asked for and was shown the respondent's alcohol screen results, which demonstrated a blood alcohol level in excess of the legal maximum. Relying on this information, the police officer obtained search warrants authorizing the seizure of the respondent's hospital records and blood sample. Major J.A., as he then was, concluded that the search warrants were invalid because they were based on information obtained in violation of s. 8 of the Charter. Nevertheless, pursuant to the then-governing s. 24(2) framework set out in R. v. Collins, [1987] 1 S.C.R. 265, he concluded that the admission of the search warrant evidence would not bring the administration of justice into disrepute, because "the blood sample was real, pre-existing evidence that would have been discovered in any event, without any Charter violation". The sample would have been discovered in any event because, had the officer not asked for and received the alcohol screen results, he still would have had reasonable and probable grounds to obtain a search warrant based upon other evidence in the case: at pp. 82-83 C.C.C.

[36] In Culotta, following a boating accident, six samples of the appellant's blood were taken at the hospital. Two samples were taken for police purposes without the appellant's consent, and were excluded from evidence by the trial judge. The trial judge admitted hospital records respecting the other four samples. On appeal of her conviction, the appellant challenged the admission of her hospital records and certain statements she made to the police, based on the cumulative effect of three alleged Charter violations, including the unlawful seizure of the two extra samples of blood. A majority of this court dismissed the appeal. With respect to the medical records, Nordheimer J.A. rejected the assertion that the illegal seizure of the two samples that had been excluded from evidence irretrievably tainted the hospital records such that they should be excluded. The other four vials of the appellant's blood were taken and tested for medical purposes. The hospital records pertaining to the testing of these samples were seized under a valid search warrant, obtained on the basis of reasonable and probable grounds, including information from witnesses that shed light on the appellant's drinking prior to operating the boat, and the officer's knowledge that tests had been done on the appellant's blood that would commonly include tests of blood-alcohol concentration: at para. 24.

[37] In both of these cases, there were reasonable and probable grounds, apart from any illegally obtained evidence, for search warrants to seize hospital records of the appellants' blood alcohol results. In other words, the blood sample evidence was "discoverable" in any event. In this case the search warrants depended on the illegally obtained urine ethanol readings; the respondent's medical records and urine and blood samples were not otherwise discoverable.

[38] In my view, the second Grant factor favours exclusion in this case.

[39] As for the third Grant factor, there is little question that society's interest in an adjudication of the charges against the respondent onits weighs in favour of inclusion of the illegally obtained evidence. The evidence at issue is reliable and essential to the prosecution. Once the blood alcohol readings were excluded the Crown elected to call no evidence, resulting in the respondent's acquittal on serious charges in a case where the other driver was killed in the collision.

[40] In balancing the three Grant factors, I am mindful of Brown J.'s statement in R. v. Paterson, [2017] 1 S.C.R. 202, 2017 SCC 15, at para. 56, that the third Grant factor must not be allowed "to trump all other considerations, particularly where . . . the impugned conduct was serious and worked a substantial impact on the [accused's] Charter right". In my view, this statement applies to the case at bar.

[41] Intentionally obtaining confidential medical information and using it to obtain search warrants is serious Charter-infringing state conduct from which the court ought to distance itself. And, while the illegal disclosure of the confidential medical information was not a "deliberate intrusion on bodily integrity" that might serve to exclude the evidence notwithstanding its relevance and reliability (R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, at para. 111), the effect on the respondent and her interest in informational privacy in a medical context was significant. In this case, but for the search warrants the police would not have been able to seize the respondent's medical records and urine and blood samples, and those search warrants depended upon the illegally obtained urine ethanol results. Given that the Charter-infringing state conduct here was at the serious end of the fault spectrum and the breach significantly impacted on the respondent's informational privacy interest, the balance tips towards exclusion and is not outweighed by society's interest in an adjudication on the merits. To admit the evidence in this case would permit the police to obtain evidence illegally, and then, as observed by the trial judge, attempt to justify this action by getting a warrant. Public confidence in the administration of justice is best served in this case through the exclusion of the evidence obtained in violation of the Charter.

Conclusion and Disposition

[42] For the reasons set out above, I have concluded that the trial judge's reasons are sufficient with respect to the finding that P.C. Robinson asked for the respondent's urine ethanol results. It follows that these results were obtained in violation of s. 8 of the Charter and had to be excised from the ITO. Without these results, the ITO could not support the warrants.

[43] The trial judge made a finding about the taking of the respondent's blood at the hospital that is not supported by the evidence. Because his s. 24(2) analysis is very general, it is impossible to know what weight he gave to this erroneous factor. In conducting the s. 24(2) analysis afresh, I have concluded that, because of the seriousness of the Charter-infringing state conduct and the significant impact of the breach on the Charter-protected interests of the accused, and notwithstanding society's interest in an adjudication on the merits, the admission of the evidence seized pursuant to the search warrants would bring the administration of justice into disrepute. Without this evidence, the Crown had no case and an acquittal was inevitable. Accordingly, I would dismiss the Crown's appeal.

Appeal dismissed.

Notes

1 La Forest J. wrote concurring reasons in this case, however this passage appears in his s. 24(2) analysis, which was adopted by the majority: see p. 441 S.C.R.

2 The only issue before the Supreme Court in Erickson was the s. 24(2) determination. The court agreed with the result reached in the Court of Appeal.

3 Subsequent to the hearing of this appeal, the Supreme Court released its decision in Culotta, but its decision does not impact the arguments made about the case in this appeal. A majority of the Supreme Court concluded that the appeal should be dismissed, substantially for the reasons of Nordheimer J.A. for the majority of the Court of Appeal. Abella and Martin JJ. would have allowed the appeal, substantially for the dissenting reasons of Pardu J.A. Thus, the legal result and reasoning remain the same.