Court Information

Ontario Court of Justice

Date: October 7, 2019

Court File No.: Kitchener Info #18-7940; 19-1147

Parties

Between:

Her Majesty the Queen

— and —

David Good

Judicial Officer and Counsel

Before: Justice Scott Latimer

Heard on: September 9, 10, 11, 2019

Reasons for Decision released on: October 7, 2019

Counsel:

• Simon McNaughton, counsel for the Crown
• Brennan Smart, counsel for David Good

Decision

LATIMER J.:

I. Introduction

[1] David Good is charged with dangerous driving and impaired driving causing bodily harm following a two-car collision at an intersection just outside Mannheim, Ontario. During a subsequent investigation, blood drawn at the hospital was seized by the police and tested at the Centre of Forensic Sciences. That testing revealed the presence of the medication 'Xanax' in his bloodstream.

[2] The Crown seeks to rely on the test results at trial, while Mr. Good seeks exclusion on the basis that the police conduct amounted to an unreasonable seizure and an unlawful intrusion upon his privacy. Following argument, I advised that I was satisfied that a section 8 Charter violation had occurred and that the blood test results would be excluded from trial. I advised that I would provide full reasons on a subsequent date. These are those reasons.

II. Facts for the Purpose of This Application

[3] In the early morning of May 23, 2018, a motor vehicle collision occurred at the intersection of Queen Street and Bleams Road, near Mannheim, Ontario. Police officers arrived very shortly after the collision and found one vehicle – the one alleged to have been driven by the applicant – in a nearby ditch. Police Constable Missio approached Mr. Good standing next to the car and observed injuries that included a large bump on his head and ankle pain. The officer testified that he smelled an odour of alcohol and that Mr. Good had a flushed face. After speaking to another officer, Constable Missio performed an arrest for impaired driving.[1]

[4] Constable Missio then accompanied Good to the hospital, where blood was drawn for medical purposes. Another officer, Constable DeBrusk, was dispatched to the hospital to perform an Intoxilyzer breath test. Mr. Good participated in the testing, which registered a "zero" result, meaning there was no indication of any alcohol in Mr. Good's bloodstream. A decision was made to follow up with a drug recognition evaluation, but such testing was not possible because of Mr. Good's physical condition.

[5] Constable DeBrusk subsequently decided that the best course of action was for the police to apply for a search warrant that would permit them to seize some of the blood already obtained by the hospital and submit that blood for testing at the Centre of Forensic Sciences. Constable DeBrusk entered the hospital laboratory and, after speaking to the staff, located five vials of blood that had been taken from Mr. Good. The officer proceeded to place a seal on two of the vials, and then secured those sealed vials in a Waterloo Regional Police Service evidence bag. The bag was then left in a refrigerator with hospital staff. DeBrusk testified that he believed that the staff understood that the blood was still in their sole possession and was available to them for medical purposes, if required.

[6] Constable DeBrusk's involvement with this case ended at this point. It was his understanding that another officer, Sergeant Hammer, would be responsible for obtaining a warrant to seize the blood samples. DeBrusk advised, in his experience, he would normally apply for such a warrant immediately or, at the outer margin, within three days of applying seals on the vials of blood.

[7] An official from St. Mary's Hospital also testified on this motion. She was the person Constable DeBrusk spoke to when he attended and secured the vials. She explained the process that occurs when the police ask about blood samples that have been obtained from a patient under investigation. While the police cannot simply take the samples, they can identify them and have them placed in a special location in the lab, awaiting a court order permitting their seizure.

[8] The next portion of this witness's evidence is highly relevant for present purposes. She advised that, in the normal course, blood is disposed of by the hospital within three days of being drawn from a patient. The exception, however, is when a police officer has expressed an interest in a vial of blood by affixing it with a seal. In those circumstances, the hospital will keep the blood indefinitely, or "as long as we have to for the police to come and get [it]". A practice has developed where the sealed samples are kept in a separate location in the laboratory, away from other specimens and identified as blood that is awaiting police seizure via a court order. This practice is the result of the hospital obliging a police request to keep sealed blood apart from other samples maintained by the hospital.

[9] In this case, approximately seven weeks passed before the police returned to the hospital with a search warrant permitting seizure of David Good's blood. Subsequent testing revealed the presence of Xanax in his bloodstream. This testing is consistent with a statement provided by Mr. Good on July 8, where he acknowledged taking this medication prior to driving. This statement – which I have ruled involuntary in a separate pre-trial motion – was the first actual evidence of Mr. Good taking drugs prior to driving and being involved in the collision. It is only after this statement that reasonable and probable grounds existed to believe that the seizure of his blood would afford evidence of drug-related impairment. The affidavit relied upon to obtain the warrant (the ITO), authored by Sergeant Hammer, acknowledges as much in its drafting.

[10] In summary, I accept that the police had a legal basis to demand a sample of Mr. Good's breath post-collision. The result of that testing was a "zero" reading, causing those grounds to dissipate. I do not accept that the police thereafter had objective grounds to believe that Mr. Good was otherwise impaired by a drug; there was simply no evidence of any kind to permit such a conclusion. I find that, at the time Constable DeBrusk sealed the vials containing Mr. Good's blood, reasonable and probable grounds did not exist to believe that toxicological testing would afford evidence of a criminal act. The police did, however, obtain those grounds seven weeks later, following Mr. Good's subsequent police statement.

III. Law & Analysis

[11] There can be no doubt that the police may lawfully seal hospital blood in anticipation of a subsequent warranted seizure: see, for example, R. v. Tessier (1990), 58 C.C.C. (3d) 255 (Ont. C.A.), aff'd , [1991] 3 S.C.R. 687; R. v. Gettins (2003), 181 C.C.C. (3d) 304 (Ont. C.A.); R. v. LaChappelle, 2007 ONCA 655, 226 C.C.C. (3d) 518. Section 8 Charter inquiries, however, are by necessity context-specific. The context, in all these cases, was that the police possessed reasonable grounds at the time of sealing to believe that seizure of the blood would afford evidence of the crime under investigation: see Tessier at 255 (Ont. C.A.); Gettins at paras. 3, 7-8; LaChappelle at paras. 28-29.

[12] Requiring grounds to exist at the time of sealing respects the balance between personal and state interests inherent in the section 8 Charter analysis. Investigators are permitted to take reasonable precautionary steps in order to ensure that blood samples are not tampered with before being seized via warrant. What the police are not permitted to do, however, is warehouse bodily substances in the event they may become forensically useful at some later point in time. Nor should they be permitted to isolate blood drawn for medical purposes so that it is preserved indefinitely for their exclusive use. Notwithstanding Constable DeBrusk's belief that the hospital understood it was still their blood, the lab official's evidence makes plain that this was not the hospital's understanding. These samples were sealed, placed in a "Waterloo Regional Police Service" exhibit bag, and separated from all other samples in a police-specific area of the lab.

[13] Further, the hospital was prepared to keep the samples on an indefinite basis until the police returned with a court order to seize them. In this case, that was almost two months later. Had no sealing taken place, the blood would have been destroyed in three days. Hence, the act of sealing in this case had a significant impact on Mr. Good's privacy interests related to the blood drawn from him for medical purposes.

[14] In R. v. Dyment, [1988] 2 S.C.R. 417 at p. 434, Justice LaForest wrote that:

"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".

I have no difficulty in concluding, on the present facts, that the sealing of the applicant's blood, without grounds, constitutes an unreasonable seizure and a Charter violation.

[15] Regarding exclusion under section 24(2) of the Charter, I apply the test set out by the Supreme Court of Canada in R. v. Grant (2009), 245 C.C.C. (3d) 1. I consider the Charter-infringing conduct in this case serious. As I stated earlier, I readily accept that the police are permitted to take precautionary steps to preserve evidence when they intend to seize it but are without a lawful immediate basis to do so. An officer sealing a vial of blood because he credibly believes it will afford evidence, and acts with dispatch on that belief by applying for a warrant, is beyond Charter reproach. What happened in this case, however, amounted to no more than a fishing expedition; an attempt to preserve potential evidence in the event it might become useful later. Contrary to the Crown's submissions in this case, permitting the police the ability, on simple request, to preserve private medical information on an indefinite basis does violence to the balancing process that lies at the heart of section 8 of the Charter, as it would unduly favor state interests at the cost of personal privacy. A hospital is not a Charter-free zone; the fact that Mr. Good consented to blood being drawn for medical purposes does not mean that he consented to it being indefinitely available to the police for law enforcement purposes. In the absence of reasonable grounds at the time of sealing, I find this factor points towards exclusion.

[16] The breach of the applicant's Charter-protected interests is also serious. As LaForest J. wrote in Dyment, "the use of a person's body without his consent to obtain information about him invades an area of personal privacy essential to the maintenance of his human dignity": pp. 431-2. In this case, but for the unlawful sealing, the blood would not have been available for the police to later obtain with a warrant. I find this factor points towards exclusion of the subsequently obtained test results.

[17] Finally, I acknowledge that the evidence at issue is reliable, and that impaired driving by a drug is a serious allegation. Indeed, this case involves a further allegation that harm was occasioned to another driver. These are features that point towards admission. However, in my view, the long-term interests of the criminal justice system are best served by exclusion, as I believe that the perpetual maintenance of bodily substances by the state, without any lawful basis, would sit uncomfortably in the mind of a reasonably informed member of the public.

IV. Disposition

[18] The application to exclude evidence pursuant to s. 24(2) of the Charter is granted. The blood samples and related forensic test results are excluded from evidence in this trial.

Released: October 7, 2019

Justice Scott Latimer

Footnote

[1] While Cst. Missio testified he also arrested for dangerous driving, I did not find his testimony convincing on this point. Such an arrest was not included in his notes, and Missio was not an impressive witness. He was often confrontational with counsel, and argued some fairly obvious points, such as whether a "goose egg" bump on the head constitutes an injury. (it does.)