DATE : August 20, 2021
ONTARIO COURT OF JUSTICE Old City Hall - Toronto
BETWEEN: HER MAJESTY THE QUEEN — AND — SHELDON DALEY
For the Crown: M. Lockner For the Defendant: M. Midanik Heard: January 4 and 5; March 12; May 5 and 21; July 28, 2021
REASONS for JUDGMENT
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] Mr. Daley is charged with being in possession of a loaded, restricted firearm and being in possession of cocaine for the purpose of trafficking. He is also charged with breaching a weapons prohibition.
[2] The charges were laid as a result of an incident on September 4, 2019, when Mr. Daley was involved in a car accident on the Gardiner Expressway. Police and ambulance attended at the accident scene in response to several 911 calls.
[3] Mr. Daley had some facial injuries and appeared confused, leading EMS personnel to fear that Mr. Daley might have suffered a head injury. The EMS personnel thus decided to take him to the emergency department at St. Michael’s Hospital. A police officer accompanied Mr. Daley in the back of the ambulance.
[4] Upon his arrival at the trauma room, a clinical assistant, without consulting Mr. Daley, did a routine inventory search of Mr. Daley’s satchel, according to hospital policy. She found a gun and alerted a police officer who was standing nearby. That officer seized the bag, confirmed the presence of the gun and arrested Mr. Daley. A further search of the satchel by police revealed the presence of the drugs.
[5] This case began as a preliminary inquiry, but, on consent of the parties, it was transformed into a trial where the issues to be decided are (1) was Mr. Daley detained in the ambulance in breach of his s. 9 rights (2) whether the searches conducted by the hospital staff and the police were conducted in breach of Mr. Daley’s s.8 Charter rights, and if so (3) should the evidence be excluded pursuant to s. 24(2). Mr. Midanik admits that unless the evidence is excluded, Mr. Daley must be convicted.
[6] Mr. Lockner called several police and hospital witnesses.
[7] Mr. Daley called no viva voce evidence on either the trial or the Charter motion.
[8] Both parties relied on certain documentary evidence pertinent to the status of St. Michael’s Hospital and their inventory policy.
B. THE EVIDENCE
[9] Because there are no material credibility or reliability disputes concerning the evidence, I will merely set out what further evidence is relevant to the Charter issues that is not already set out above in the introduction.
[10] There is no evidence as to whether Mr. Daley was asked if he wanted to go to the hospital. Sgt. Taylor detailed P.C. Gordon to accompany Mr. Daley in the ambulance. From the perspective of the EMS personnel and the police, having a police officer accompany a patient to hospital in an ambulance after a motor vehicle accident is a routine affair. Patients are not asked for their consent, and Mr. Daley was not consulted.
[11] The police accompanied Mr. Daley because they wanted to monitor his condition and because they thought it was possible that Mr. Daley was impaired by drugs. Mr. Daley was not placed under arrest while in the ambulance.
[12] Once at the hospital, Mr. Daley was taken immediately to a trauma room. There is a written policy at St. Michael’s Hospital that in the case of all patients brought into the trauma room, their clothing is removed, and all their personal belongings are catalogued by two staff members. The principal purpose of this inventory procedure is to minimize disputes between the hospital and patients concerning the patients’ property, upon their eventual discharge. The consent of the patient is not sought principally because the cataloguing is done while the patient is being treated and the hospital does not want to interfere with the patient’s treatment.
[13] Pursuant to that policy, clinical assistant M. Tormon undertook this cataloguing procedure without consulting Mr. Daley. The procedure included searching the contents of Mr. Daley’s satchel. She soon found the gun. She asked a superior for advice as to what to do and she then handed the satchel to P.C. Gordon while telling him what she had found.
[14] Neither Ms. Tormon nor P.C. Gordon could recall if the satchel was open when P.C. Gordon received it. He looked in the bag, confirmed it was a gun and soon thereafter arrested Mr. Daley. P.C. Gordon then conducted a search of the satchel, incident to arrest, whereupon he discovered the cocaine.
[15] P.C. Gordon testified that he never entered the trauma room and was just outside the trauma room when he was approached by Ms. Tormon. Ms. Tormon testified that P.C. Gordon was just inside the door of the trauma room at that time. In my view, this discrepancy does not have to be resolved in deciding the issues before me.
C. THE S.8 CHARTER APPLICATION
[16] Mr. Midanik’s s.8 Charter application argues that:
- The Applicant was arbitrarily detained when the police accompanied him to the hospital after his car accident and there was no basis to believe that he committed any offence or that any kind of Mann detention was warranted, in violation of ss 7 & 9.
- The police violated his s 8 right to privacy by accompanying him in the ambulance and being present for medical discussions and treatment.
- The hospital staff at St. Michael's Hospital conducted an unreasonable search pursuant to an unconstitutional policy in violation of s. 8 of the Charter.
- The provision of emergency medical care in the province of Ontario is a governmental function under s.32 of the Charter.
- Emergency staff are state agents under s. 32 in the case at bar.
- The police search of his satchel was a violation of s. 8.
- Admission of the evidence would bring the administration of justice into disrepute.
[17] Mr. Lockner argues that:
- It is settled law that police attending in an ambulance with an accused person does not violate their Charter rights.
- It is settled law that hospital employees such as Ms. Tormon are not state actors, and are thus not generally subject to Charter scrutiny, and no policy or agreement exists which reverses this.
- It is settled law that whistleblowers are free to bring material to police, and that section 8 is not engaged unless the subsequent police conduct infringes on Charter.
D. WAS MR. DALEY DETAINED BY POLICE IN THE AMBULANCE OR AT THE HOSPITAL?
(a) The Law
[18] The law on this issue finds its clearest expression in R. v. Culotta, 2018 ONCA 665. In Culotta, the appellant had been injured in a boating accident. She had been loaded into an ambulance by EMS personnel. A police officer, investigating a possible impaired operation offence, climbed into the ambulance and recorded a statement made by the appellant. Nordheimer J.A. at paragraph 19 said:
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 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.
(b) The Legal Principles Applied
[19] Mr. Daley’s status in the ambulance is not distinguishable from the appellant’s status in Culotta. The police had nothing to do with placing Mr. Daley in the ambulance. The fact that one of the reasons that the police officer entered the ambulance was to investigate possible impairment does not render his presence in the ambulance a detention.
[20] For much the same reason, the presence of the police at or near the trauma room did not amount to a detention of Mr. Daley.
E. DID THE POLICE VIOLATE MR. DALEY’S RIGHT TO PRIVACY BY ACCOMPANYING HIM IN THE AMBULANCE AND STANDING BY AT THE HOSPITAL?
(a) The Law
[21] The leading authority on this issue is R. v. LaChappelle, 2007 ONCA 655. According to Rosenberg J.A., at paragraphs 32-39, the non-intrusive presence of a police officer in the back of an ambulance, with the consent of the ambulance personnel, does not violate the patient’s reasonable expectation of privacy, especially where there is no search or seizure conducted in the ambulance.
(b) The Legal Principles Applied
[22] Mr. Daley did not protest when P.C. Gordon climbed aboard the ambulance. Mr. Daley had no property interest in the ambulance, nor any control over who rode inside. The presence of P.C. Gordon did not amount to a breach of Mr. Daley’s privacy interest. The same can be said about P.C. Gordon’s presence at the hospital.
F. DID THE SEARCH OF THE SATCHEL BY HOSPITAL STAFF CONSTITUTE A CHARTER VIOLATION?
(a) The Law
(i) Section 32 (1) of The Charter of Rights
[23] Section 32 (1) of the Canadian Charter of Rights and Freedoms reads as follows:
This Charter applies
(a) To the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) To the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
[24] Simply put, only government and its emanations are bound by the Charter: R. v. Stoffman, [1990] S.C.J. No. 125 at paras. 25 and 26; McKinney v. University of Guelph, [1990] 3 S.C.R. 229.
[25] For Mr. Daley to succeed in demonstrating that Ms. Tormon’s search of his satchel was a breach of his Charter rights, he must satisfy me on a balance of probability that Ms. Tormon was a “state actor” when she performed the search.
[26] The test for whether an entity is a state actor is set out succinctly by La Forest J. in Eldridge v. British Columbia, [1997] 3 S.C.R. 624 at para.44:
As the case law discussed above makes clear, the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself "government" for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as "government" within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as "private". Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly "governmental" in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.
[27] Mr. Daley would succeed on this issue if he could prove that St. Michael’s Hospital is a state actor in all its endeavours, in which case Ms. Tormon, as one of the hospital’s employees performing a hospital function would be a state actor.
[28] Mr. Daley would also succeed on this issue if he could prove that even though the hospital is not per se a state actor, the emergency room is per se a state actor.
[29] Mr. Daley would also succeed if he could prove that, even though the hospital and the emergency ward are not per se state actors, Ms. Tormon was nonetheless performing a task that amounted to state action.
(b) The Legal Principles Applied
(i) Is St. Michael’s Hospital a per se state actor?
[30] Mr. Midanik abandoned this argument in his submissions, no doubt because of the binding authority that is R. v. Stoffman, supra.
[31] In Stoffman, the plaintiff doctors had been denied re-approval of their admitting privileges at the Vancouver General Hospital because of a mandatory age ceiling imposed by a regulation promulgated by the hospital’s administration, with the required approval of the Minister of Health.
[32] Even though:
- The hospital had 14 of 16 members of its board appointed by the provincial government.
- The hospital was subject to its own provincial legislation, the Vancouver General Hospital Act.
- The hospital required its by-laws be approved by the Minister of Health; and
- The Minister of Health exercised significant control over the actions of the hospital board of trustees.
The Supreme Court held that the hospital was not a state actor.
[33] La Forest J. put it as follows:
On the basis of the foregoing, I would conclude that the appellant hospital does not form part of government within the meaning of s. 32 of the Charter. It follows that its actions in adopting and administering Regulation 5.04 do not fall within the ambit of the Charter. I would add that there can be no question of the Vancouver General's being held subject to the Charter on the ground that it performs a governmental function, for it follows from what I have said above that the provision of a public service, even if it is one as important as health care, is not the kind of function which qualifies as a governmental function under s. 32.
[34] Documents filed in the case at bar demonstrate that St. Michael’s Hospital is more autonomous than the Vancouver General Hospital. A fortiori, St. Michael’s Hospital is not per se a state actor.
(ii) Is the St. Michael’s Emergency Ward a per se state actor?
[35] The leading case on this issue is R. v. Dersch, [1993] 3 S.C.R. 768. In Dersch, the Court addressed a situation where an emergency room physician had taken blood from an accused over his objections, and then provided the results of the blood test to the police at their request (without a warrant). As in the present case, the reason for the emergency room visit was a vehicle collision, from which the accused was transported to the hospital.
[36] While the results were ultimately excluded in that case (for reasons focussing on police conduct), Major J. began the analysis by turning to whether the hospital providing emergency services and the doctor extracting the blood were state actors:
In Stoffman v. Vancouver General Hospital, , [1990] 3 S.C.R. 483, the majority of this Court concluded, inter alia, that the Vancouver General Hospital was not part of government for the purposes of s. 32 of the Charter and its actions were not generally subject to Charter scrutiny. The same reasoning is applicable here to the Cowichan District Hospital…
As the Cowichan District Hospital is not part of government for the purposes of the Charter, and is not acting as an agent of government in providing emergency health services, it follows that participation in the emergency treatment of the appellant did not in itself render Dr. Leckie and/or Dr. Gilbert agents of government for the purposes of the Charter.
[37] A strict reading of Dersch leads to the conclusion that the emergency ward at St. Michael’s Hospital is not per se a state actor.
[38] Mr. Midanik argues, however, that the dictates of Dersch have been modified by more recent jurisprudence from the Supreme Court such as Eldridge v. British Columbia, supra; Canada v. Bedford, 2013 SCC 72; and Canada v. Carter, 2015 SCC 5.
[39] Eldridge raised the question whether a provincial government's failure to provide funding for sign language interpreters for deaf persons when they receive medical services violates s. 15(1) of the Charter of Rights and Freedoms. The factual background for the dispute was explained by La Forest J. as follows:
Medical care in British Columbia is delivered through two primary mechanisms. Hospital services are funded by the government through the Hospital Insurance Act, R.S.B.C. 1979, c. 180 (now R.S.B.C. 1996, c. 204), which reimburses hospitals for the medically required services they provide to the public. Funding for medically required services delivered by doctors and other health care practitioners is provided by the province's Medical Services Plan, which is established and regulated by the Medical and Health Care Services Act, S.B.C. 1992, c. 76 (now known as the Medicare Protection Act, R.S.B.C. 1996, c. 286). Neither of these programs pays for sign language interpretation for the deaf.
[40] The Legislature had delegated to the Medical Services Commission, and to hospitals, the decision as to what medical services would be rendered to British Columbians free of charge. La Forest J., at paragraphs 50-52, (distinguishing Stoffman, yet not mentioning Dersch), found that in those circumstances the Commission and the hospitals were indeed state actors:
The structure of the Hospital Insurance Act reveals, therefore, that in providing medically necessary services, hospitals carry out a specific governmental objective. The Act is not, as the respondents contend, simply a mechanism to prevent hospitals from charging for their services. Rather, it provides for the delivery of a comprehensive social program. Hospitals are merely the vehicles the legislature has chosen to deliver this program. It is true that hospitals existed long before the statute, and have historically provided a full range of medical services. In recent decades, however, health care, including that generally provided by hospitals, has become a keystone tenet of governmental policy. The interlocking federal-provincial medicare system I have described entitles all Canadians to essential medical services without charge. Although this system has retained some of the trappings of the private insurance model from which it derived, it has come to resemble more closely a government service than an insurance scheme; see Canadian Bar Association Task Force on Health Care, supra, at p. 9.
Unlike Stoffman, then, in the present case there is a "direct and . . . precisely-defined connection" between a specific government policy and the hospital's impugned conduct. The alleged discrimination -- the failure to provide sign language interpretation -- is intimately connected to the medical service delivery system instituted by the legislation. The provision of these services is not simply a matter of internal hospital management; it is an expression of government policy. Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act. The Legislature, upon defining its objective as guaranteeing access to a range of medical services, cannot evade its obligations under s. 15(1) of the Charter to provide those services without discrimination by appointing hospitals to carry out that objective. In so far as they do so, hospitals must conform with the Charter.
The case of the Medical Services Commission is more straightforward. It was not contested that the Charter applies to the Commission in exercising its power to determine whether a service is a benefit pursuant to s. 4(1) of the Medical and Health Care Services Act. It is plain that in so doing, the Commission implements a government policy, namely, to ensure that all residents receive medically required services without charge. In lieu of setting out a comprehensive list of insured services in legislation, the government has delegated to the Commission the power to determine what constitutes a "medically required" service. There is no doubt, therefore, that in exercising this discretion the Commission acts in governmental capacity and is thus subject to the Charter. As there is no need to do so, I refrain from commenting on whether the Commission might be considered part of government for other purposes.
[41] Mr. Midanik argues that the ruling in Dersch has been modified by the ruling in Eldridge. He argues that the provision of emergency medical services is fundamentally the provincial government’s responsibility and that the government has designated all Ontario emergency wards to fulfill this mandate. He also points to the Ontario government’s COVID-19 response as evidence of the evolution of the relationship between the government and the province’s emergency wards.
[42] Mr. Midanik also points to Bedford, where the Supreme Court was called upon to address the issue of when a trial judge may evade the rigours of stare decisis and revisit Charter issues apparently settled in earlier Supreme Court jurisprudence. McLachlin C.J. said at paragraphs 42-44:
In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. It submits that lower courts should not be limited to acting as "mere scribe[s]", creating a record and findings without conducting a legal analysis (I.F., at para. 25).
I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.
[43] In Carter, supra, the Supreme Court reaffirmed this test.
[44] First, it must be noted that Eldridge is the most up-to-date treatment of the issue of when, and in what circumstances a hospital, or one of its employees, is a state actor. It is presumed that the Supreme Court is aware of its own jurisprudence and insofar as Eldridge changed the law as set out in Dersch, this cannot be an accident.
[45] The broad proposition in Dersch that “participation in the emergency treatment of the appellant did not in itself render Dr. Leckie and/or Dr. Gilbert agents of government for the purposes of the Charter” must be re-examined in light of this statement in Eldridge: “Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act.”
[46] While I think it is safe to say that Eldridge has modified the law in Dersch, I do not think it has transformed all emergency wards into per se state actors. If it had, the same would be true for hospitals generally, and I believe that La Forest J. would have alluded to this question given that he wrote the judgment in Stoffman and specifically cites Stoffman in Eldridge.
[47] Rather, I think that the law after Eldridge is that anyone delivering health care or making policy with respect to the delivery of health care is a state actor, but only while exercising these functions. A hospital, while in the business of delivering health care, is not acting as a state agent when deciding how many cooks to hire for their meal service. An emergency ward, even though created for the purpose of delivering urgent health care, is not a state actor when dealing with human resources issues with the union representing nurses. This interpretation is the one that respects the Supreme Court’s judgment in Stoffman, and most gently and smoothly accounts for the shift from the dicta in Dersch to the law as expounded in Eldridge.
[48] Thus, the key to any hospital employee being a state actor is that the actions in question must be part of the delivery of health care.
[49] If I am right in my belief that Dersch would be decided differently today, it is not because the law has evolved to where an emergency ward is per se a state actor, but rather only to where the provision of medical care is state action.
[50] In my view, there is nothing that has occurred in our medical system that requires a more radical change in the law as proposed by Mr. Midanik, pursuant to the rule in Carter and Bedford. COVID-19 has highlighted the close relationship between public health and government policy in general, and it may go so far as to support the shift in the law I propose, but it does not go so far as to make emergency wards per se state actors such that everything they do is subject to Charter scrutiny.
(iii) Was Ms. Tormon performing a health care task that amounted to state action?
[51] The purpose of the inventory process is to safeguard the patient’s property, protect the hospital from spurious allegations of theft, and to ensure a safe environment for staff and other patients. Even though Ms. Tormon was an employee of the hospital and was working with the trauma team in her dealings with Mr. Daley, the inventory process had no connection to the provision of medical care. That goes equally for the hospital inventory policy as it does for Ms. Tormon’s actual search of the satchel in furtherance of that policy.
[52] Does the fact that the inventory conducted by Ms. Tormon was conducted on a hospital patient, while that patient was being treated in the very same room, make the inventory a health care task? I believe the answer to this question is no. It just so happened that the search of the satchel took place in the room where Mr. Daley was being treated. If Mr. Daley had been immediately rushed to an operating room his satchel would surely have been searched in the emergency in his absence.
G. WAS MS. TORMON ACTING AS AN AGENT FOR THE POLICE?
[53] The St. Michael’s Hospital inventory policy was created independently of the police. There is no agreement with the police as concerns the cataloguing of patient property. Cf. R. v. Orlandis-Habsburgo, [2017] O.J. No. 4143 (C.A.).
[54] Even though a police officer arrived at the hospital with Mr. Daley and accompanied him into the emergency ward, and perhaps into the trauma room, Ms. Tormon had no dealings with the officer prior to her search of the satchel and was not acting on his instructions. Cf. R. v. Pohoretsky, [1987] 1 S.C.R. 945.
[55] Nor was Ms. Tormon’s turning over of the satchel to P.C. Gordon a Charter breach. It is well settled law that third parties may report crimes to the police and share evidence with the police, either for their own protection or the protection of the public: R. v Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Orlandis-Habsburgo, supra at paras. 21-35; R. v. El-Azrak, [2018] O.J. No. 7214 (S.C.J.) at para.84.
H. DID THE SUBSEQUENT POLICE SEARCH CONSTITUTE A CHARTER VIOLATION?
(a) The Law
[56] P.C. Gordon’s search of Mr. Daley’s satchel is subject to Charter scrutiny, even though he obtained it from Ms. Tormon. R. v. Cole, supra, at para. 67; R. v. Orlandis-Habsburgo, supra.
(b) The Legal Principles Applied
[57] P.C. Gordon, upon receiving the satchel from Ms. Tormon also received information from her that the bag contained a gun. The information alone gave P.C. Gordon reasonable and probable grounds to arrest Mr. Daley. P.C. Gordon did look inside the satchel to confirm the presence of the gun. He also briefly handled it to confirm that it was real. There is no evidence that he had to unzip, or otherwise open the bag to do these things. None of these steps constituted a search. R. v. Orlandis-Habsburgo, supra.
[58] P.C. Gordon arrested Mr. Daley, then searched the satchel. His arrest of Mr. Daley was lawfully based on reasonable and probable grounds, and the warrantless search was justified as a search incident to arrest. R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Caslake, [1998] 1 S.C.R. 51.
I. CONCLUSION
[59] Mr. Midanik has not satisfied me on a balance of probabilities that Mr. Daley’s Charter rights were violated by Ms. Tormon, the Hospital, or P.C. Gordon.
[60] I thus find Mr. Daley guilty of all counts on the information.
Released on August 20, 2021
Justice Russell Silverstein