r. v. dyment, [1988] 2 S.C.R. 417
Her Majesty The Queen Appellant
v.
Brandon Roy Dyment Respondent
indexed as: r. v. dyment
1987: April 8; 1988: December 8.
Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain* and La Forest JJ.
on appeal from the supreme court of prince edward island, appeal division
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search or seizure ‑‑ Doctor taking blood sample from emergency patient without his consent or knowledge ‑‑ Blood sample taken for medical purposes but given to police officer ‑‑ Analysis of blood sample used to secure conviction of impaired driving ‑‑ No legal requirement at the time for person to give police blood sample ‑‑ Whether or not the taking of blood sample by police amounted to seizure under s. 8 of the Charter ‑‑ Whether or not such taking was unreasonable ‑‑ Whether or not evidence of blood analysis should be under s. 24(2) of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 8, 24(2) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 236, 237(2).
A doctor treating appellant in a hospital after a traffic accident collected a vial of free‑flowing blood for medical purposes without appellant's knowledge or consent. Shortly after, appellant explained that he had consumed a beer and medication. The doctor, after taking the blood sample, spoke to the police officer who had attended at the accident and at the end of their conversation gave him the sample. The officer had not noted any evidence of appellant's drinking, had not requested a blood sample from either the appellant or the doctor and had no search warrant. The sample was analyzed and appellant was subsequently charged and convicted of impaired driving. At the time, s. 237(2) of the Criminal Code did not require a person to give a blood sample.
The Supreme Court of Prince Edward Island, Appeal Division, dismissed an appeal from a judgment of the Supreme Court of Prince Edward Island which allowed an appeal from conviction. At issue here is whether or not the Appeal Division erred: (1) in holding that the police officer's taking of the blood sample amounted to a seizure contemplated by s. 8; (2) in holding that such taking amounted to unreasonable search and seizure; and (3) in excluding the evidence of the blood analysis under s. 24(2).
Held (McIntyre J. dissenting): The appeal should be dismissed.
Per Beetz, Lamer and Wilson JJ.: A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. Receipt by the police of the vial of blood, given that that blood was held by the doctor subject to a duty to respect the patient's privacy, amounted to a seizure as contemplated by s. 8 of the Charter. This seizure was unlawful in that it was made without a warrant, was not supported by evidence establishing its lawfulness, and was not justified by urgency or other reason. It was therefore unnecessary to inquire further as to whether the search was unreasonable.
Per Dickson C.J. and La Forest J.: The officer, in taking the sample, breached respondent's privacy interests in it, and so effected a seizure within the meaning of s. 8. The term "searches or seizures" is to be read disjunctively.
Section 8 is concerned not only with the protection of property but also with the protection of the privacy interests of individuals from search or seizure. The distinction between a seizure and a mere finding of evidence is to be made at the point where it can reasonably be said that the individual ceased to have a privacy interest in the subject‑matter allegedly seized. The use of a person's body without his consent to obtain information about him invades an area of privacy essential to the maintenance of his human dignity. The doctor, whose sole justification for taking the blood sample was that it was to be used for medical purposes, had no right to take it for other purposes or to give it to a stranger for non‑medical purposes unless otherwise required by law, and any such law would be subject to Charter scrutiny. The Charter protection extends to prevent a police officer or agent of the state from taking an intimately personal substance, such as blood, from a doctor who holds it subject to a duty to respect a person's privacy.
The seizure here was not reasonable. The violation of the privacy interests here was not minimal. The use of an individual's blood or other bodily substances confided to others for medical purposes for uses other than such purposes seriously violates the personal autonomy of the individual. The seizure here infringed upon all the spheres of privacy ‑‑ spatial, physical and informational. Although the needs of law enforcement are important and beneficent, there is danger when this goal is pursued with too much zeal. Given the danger to individual privacy of an easy flow of information from hospitals and others, the taking by the police of a blood sample from a doctor who has obtained it for medical purposes cannot be viewed as anything but unreasonable in the absence of compelling circumstances of pressing necessity.
The Charter breach was a very serious one: a violation of a person's body is much more serious than a violation of his office or even his home. The 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. 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. There are well‑known and recognized procedures for obtaining such evidence where the police have reasonable and probable grounds for believing a crime has been committed.
Per McIntyre J. (dissenting): There was no search here. If there was a wrongful seizure, that wrongful seizure and the wrongful dealing with the blood sample lay with the doctor. Nothing indicated misconduct, impropriety or bad faith on the part of the police officer who, having received "real evidence" decisive of the issue in the case, was under a duty to tender it in evidence. This evidence should not be excluded for its admission would not bring the administration of justice into disrepute.
Cases Cited
By Lamer J.
Referred to: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265.
By La Forest J.
Distinguished: R. v. LeBlanc (1981), 1981 3213 (NB CA), 64 C.C.C. (2d) 31; referred to: R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194; Entick v. Carrington (1765), 19 St. Tr. 1029, 2 Wils. K.B. 275, 95 E.R. 807; Minister of National Revenue v. Kruger Inc., 1984 5365 (FCA), [1984] 2 F.C. 535; Katz v. United States, 389 U.S. 347 (1967); R. v. Pohoretsky, 1987 62 (SCC), [1987] 1 S.C.R. 945; Milton v. The Queen (1985), 16 C.R.R. 215; R. v. Dzagic (1985), 1985 2169 (ON SC), 16 C.R.R. 310; R. v. Griffin (1985), 22 C.R.R. 303; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265; R. v. Santa (1983), 6 C.R.R. 244; Olmstead v. United States, 277 U.S. 438 (1928); R. v. Carter (1982), 1982 2171 (ON CA), 144 D.L.R. (3d) 301; R. v. DeCoste (1983), 1983 5261 (NS SC), 60 N.S.R. (2d) 170.
By McIntyre J. (dissenting)
R. v. Jacoy, 1988 13 (SCC), [1988] 2 S.C.R. 548.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 8, 24(2).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 236, 237(2), 238(3).
Hospital Management Regulations, ss. 37, 47.
Hospitals Act, R.S.P.E.I. 1974, c. H‑11.
Privacy Act, S.C. 1980‑81‑82‑83, c. 111.
Authors Cited
Canada. Law Reform Commission. Report on Obtaining Forensic Evidence (No. 25). Ottawa: Law Reform Commission, 1985.
Canada. Report of the Task Force established by the Department of Communications/Department of Justice. Privacy and Computers. Ottawa: Information Canada, 1972.
Canadian Medical Association. Code of Ethics.
Marshall, T. David. The Physician and Canadian Law, 2nd ed. Toronto: Carswells, 1979.
Ontario. Commission of Inquiry into the Confidentiality of Health Information. Report of the Commission of Inquiry into the Confidentiality of Health Information. (The Krever Commission). Toronto: The Commission, 1980.
Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970.
APPEAL from a judgment of the Supreme Court of Prince Edward Island, Appeal Division (1986), 1986 115 (PE SCAD), 57 Nfld. & P.E.I.R. 210, 170 A.P.R. 210, 26 D.L.R. (4th) 399, 25 C.C.C. (3d) 120, 20 C.R.R. 82, dismissing an appeal from a judgment of Mitchell J. (1984), 1984 3041 (PE SCAD), 47 Nfld. & P.E.I.R. 350, 139 A.P.R. 350, 9 D.L.R. (4th) 614, 12 C.C.C. (3d) 531, 8 C.R.R. 325, allowing an appeal from a conviction for impaired driving. Appeal dismissed, McIntyre J. dissenting.
Darrell Coombs, for the appellant.
John Maynard, for the respondent.
The reasons of Dickson C.J. and La Forest J. were delivered by
La Forest J.‑‑ The issues in this case are whether the taking by a police officer of a vial of a patient's blood at a hospital from, and with the consent of, a physician who had himself obtained it from a bleeding and unconscious patient, violates s. 8 of the Canadian Charter of Rights and Freedoms, and if so whether it should be excluded as evidence under s. 24(2) of the Charter in proceedings against the patient.
Sections 8 and 24(2) of the Charter read as follows:
Everyone has the right to be secure against unreasonable search or seizure.
...
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Facts
The respondent, Mr. Dyment, suffered a head laceration when, on April 23, 1982, his car left the highway and landed in a ditch. A doctor was called to the scene where he found Mr. Dyment in a bloodied condition sitting in the driver's seat of the vehicle. An R.C.M.P. officer drove Mr. Dyment to a hospital but did not arrest or detain him. Neither the doctor nor the officer noted any evidence that Mr. Dyment had been drinking.
The doctor returned to the hospital and prepared to suture Mr. Dyment's head, but before doing so, he held a vial under the free‑flowing blood and collected a sample of it. This was done for medical purposes. The doctor thought the accident might have been caused by a medical problem. Shortly afterwards, Mr. Dyment told him he had consumed a beer and some antihistamine tablets, which explained to the doctor why the accident happened.
The doctor did not obtain his patient's consent to obtain the blood sample. Mr. Dyment was not even aware of it as he was suffering from a concussion. I should note that at the time, under s. 237(2) of the Criminal Code, no person was required to give a sample of blood. Section 238(3), however, now provides that, where a peace officer believes on reasonable and probable grounds that a person has committed the offence of impaired driving, he may require him to provide blood samples.
The R.C.M.P. officer remained at the hospital while the doctor attended Mr. Dyment. He did not request a blood sample from Mr. Dyment and he did not ask or direct the doctor to take one. Nor did he see the doctor take one. After taking the sample, the doctor spoke to the officer. The evidence does not reveal what was said, but at the end of the conversation, the doctor handed the sample to the officer. The officer did not have Mr. Dyment's consent to take the sample and he did not have a search warrant.
The officer later had the sample analyzed, when a reading in excess of 100 milligrams of alcohol in 100 milliliters of blood was obtained. Mr. Dyment was then charged with, and convicted of, an offence of being in care or control of a motor vehicle having consumed alcohol in such quantity that the proportion in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood contrary to s. 236 of the Criminal Code as it then read.
The Courts Below
Mr. Dyment then appealed to the Supreme Court of Prince Edward Island on the ground that the taking of the blood violated s. 7 (which guarantees everyone the right to life, liberty and security of the person) and s. 8 of the Charter, and should have been excluded from the evidence under s. 24(2) because its use would, in the circumstances, bring the administration of justice into disrepute. Mitchell J., who heard the appeal, agreed: see (1984), 1984 3041 (PE SCAD), 47 Nfld. & P.E.I.R. 350. Section 7 had been infringed because the accused had not consented to the sample's being taken or given to the police. He also thought s. 8 was violated. The taking of the sample was a seizure, and an unreasonable one at that. Nobody had to give a blood sample to the police, and the officer did not even have probable cause to believe it would yield evidence of a criminal offence. "Just because the doctor gave it to him without any fuss", Mitchell J. stated, did "not make the taking of the sample any less a seizure." "The doctor", he noted, "had no authority to give the officer the blood and the officer had no authority, or good reason, for taking it."
Though a Charter violation does not automatically require the exclusion of evidence, he found that it should be excluded in this case. The taking of a specimen of a person's bodily substances without consent, unless required by law or unless it forms part of an emergency medical procedure on an unconscious patient, violates the right to the security of the person. That right is also violated where a doctor who has taken a sample for medical reasons gives it to another for non‑medical purposes. A specimen taken for medical reasons becomes part of the patient's personal medical record which should be kept confidential. The fact that the blood was not extracted from his body did not mean that he had abandoned it. Its use as evidence would bring the administration of justice into disrepute. "What happened here", he concluded, "constitutes such a gross violation of the sanctity, integrity and privacy of the appellant's bodily substances and medical records that the community would be shocked and appalled if the court allowed the admission of this evidence in the face of the Charter."
Mitchell J., therefore, allowed the appeal. The Crown then appealed to the Supreme Court of Prince Edward Island ‑‑ Appeal Division: see (1986), 1986 115 (PE SCAD), 57 Nfld. & P.E.I.R. 210. MacDonald J., speaking for the court, was of the view that the doctor's taking of the blood in an emergency situation and its subsequent transfer to the police officer did not violate s. 7 of the Charter. He agreed, however, with the conclusion of Mitchell J. that the taking of the sample by the police officer violated s. 8 of the Charter and should have been excluded under s. 24(2). The taking of the blood sample by the police officer, he said, was a search and seizure because Mr. Dyment's consent was not obtained and there was no warrant. It was illegal because the police officer had not testified that he had a reasonable belief that Mr. Dyment had committed an offence. It was also illegal because it offended the provisions of the regulations made under the Hospitals Act, R.S.P.E.I. 1974, c. H‑11. Section 37 of the Hospital Management Regulations required each hospital board to compile a medical record of its patients, which included the various steps taken in his or her medical treatment. Under section 47 of the regulations, a hospital board is permitted to "remove, inspect or receive information from a medical record" only under certain conditions, one being when a court orders such action. In MacDonald J.'s view, the blood sample constituted part of the medical record since the purpose of s. 37 of the regulations was to keep information pertaining to patients confidential, and the blood sample, when analyzed, would disclose such information.
MacDonald J. then went on to hold that the evidence regarding the blood sample should be excluded under s. 24(2) of the Charter as bringing the administration of justice into disrepute. The breach of Mr. Dyment's s. 8 right was flagrant. Time was not a factor in the case and there were other investigative tools that could have been used to obtain the evidence. While there was no direct evidence that Mr. Dyment's rights under the Charter had been knowingly breached, the action of the police officer was so imprudent that it could not be condoned. He added that the breach of the hospital regulations would erode public confidence in both the administration of health services and the administration of justice.
The court, therefore, dismissed the appeal. The Crown then sought and was granted leave to appeal to this Court.
Grounds of Appeal
- In his submission before this Court, counsel for the Crown submitted that the court appealed from erred in three different respects, namely:
(1) in holding that the taking of possession of the blood sample by the police officer amounted to a seizure as contemplated by s. 8 of the Charter;
(2) in holding that such taking was unreasonable and so infringed s. 8;
(3) in excluding the evidence of the analysis of the blood under s. 24(2) of the Charter on the ground that the admission of this evidence would bring the administration of justice into disrepute.
- Before examining these issues, it is first necessary to say a few words about the manner in which Charter rights are to be approached and more specifically about the nature of the right sought to be protected under s. 8. The issues regarding s. 7 of the Charter were not addressed, and I do not propose to deal with them.
General
From the earliest stage of Charter interpretation, this Court has made it clear that the rights it guarantees must be interpreted generously, and not in a narrow or legalistic fashion; see R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344. The function of the Charter, in the words of the present Chief Justice, then Dickson J., in Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 155 "is to provide ... for the unremitting protection of individual rights and liberties". It is a purposive document and must be so construed. That case dealt specifically with s. 8. It underlined that a major, though not necessarily the only, purpose of the constitutional protection against unreasonable search and seizure under s. 8 is the protection of the privacy of the individual; see especially pp. 159‑60. And that right, like other Charter rights, must be interpreted in a broad and liberal manner so as to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments. Its spirit must not be constrained by narrow legalistic classifications based on notions of property and the like which served to protect this fundamental human value in earlier times.
Indeed, it may be confusing means with ends to view these inherited rights as essentially aimed at the protection of property. The lives of people in earlier times centred around the home and the significant obstacles built by the law against governmental intrusions on property were clearly seen by Coke to be for its occupant's "defence" and "repose"; see Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194, at p. 91 b and p. 195 respectively. Though rationalized in terms of property in the great case of Entick v. Carrington (1765), 19 St. Tr. 1029, 2 Wils. K.B. 275, 95 E.R. 807, the effect of the common law right against unreasonable searches and seizures was the protection of individual privacy. Viewed in this light, it should not be cause for surprise that a constitutionally enshrined right against unreasonable search and seizure should be construed in terms of that underlying purpose unrestrained now by the technical tools originally devised for securing that purpose. However that may be, this Court in Hunter v. Southam Inc. clearly held, in Dickson J.'s words, that the purpose of s. 8 "is ... to protect individuals from unjustified state intrusions upon their privacy" (supra, p. 160) and that it should be interpreted broadly to achieve that end, uninhibited by the historical accoutrements that gave it birth. He put it this way, at p. 158:
In my view the interests protected by s. 8 are of a wider ambit than those enunciated in Entick v. Carrington. Section 8 is an entrenched constitutional provision. It is not therefore vulnerable to encroachment by legislative enactments in the same way as common law protections. There is, further, nothing in the language of the section to restrict it to the protection of property or to associate it with the law of trespass. It guarantees a broad and general right to be secure from unreasonable search and seizure.
It should also be noted that s. 8 does not merely prohibit unreasonable searches and seizures. As Pratte J.A. observed in Minister of National Revenue v. Kruger Inc., 1984 5365 (FCA), [1984] 2 F.C. 535 (C.A.), at p. 548, it goes further and guarantees the right to be secure against unreasonable search and seizure.
The foregoing approach is altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state; see Alan F. Westin, Privacy and Freedom (1970), pp. 349‑50. Grounded in man's physical and moral autonomy, privacy is essential for the well‑being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.
Claims to privacy must, of course, be balanced against other societal needs, and in particular law enforcement, and that is what s. 8 is intended to achieve. As Dickson J. put it in Hunter v. Southam Inc., supra, at pp. 159‑60:
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.
The first challenge, then, is to find some means of identifying those situations where we should be most alert to privacy considerations. Those who have reflected on the matter have spoken of zones or realms of privacy; see, for example, Privacy and Computers, the Report of the Task Force established by the Department of Communi‑ cations/Department of Justice (1972), especially at pp. 12‑14. The report classifies these claims to privacy as those involving territorial or spatial aspects, those related to the person, and those that arise in the information context. All three, it seems to me, are directly implicated in the present case.
As noted previously, territorial claims were originally legally and conceptually tied to property, which meant that legal claims to privacy in this sense were largely confined to the home. But as Westin, supra, at p. 363, has observed, "[t]o protect privacy only in the home ... is to shelter what has become, in modern society, only a small part of the individual's daily environmental need for privacy". Hunter v. Southam Inc. ruptured the shackles that confined these claims to property. Dickson J., at p. 159, rightly adopted the view originally put forward by Stewart J. in Katz v. United States, 389 U.S. 347 (1967), at p. 351, that what is protected is people, not places. This is not to say that some places, because of the nature of the social interactions that occur there, should not prompt us to be especially alert to the need to protect individual privacy.
This Court has recently dealt with privacy of the person in R. v. Pohoretsky, 1987 62 (SCC), [1987] 1 S.C.R. 945. The case bears some resemblance to the present one, but there the doctor had taken the blood sample from a patient, who was in an incoherent and delirious state, at the request of a police officer. In holding this action to constitute an unreasonable search and seizure, my colleague Lamer J. underlined the seriousness of a violation of the sanctity of a person's body. It constitutes a serious affront to human dignity. As the Task Force on Privacy and Computers, supra, put it, at p. 13:
... this sense of privacy transcends the physical and is aimed essentially at protecting the dignity of the human person. Our persons are protected not so much against the physical search (the law gives physical protection in other ways) as against the indignity of the search, its invasion of the person in a moral sense.
Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980‑81‑82‑83, c. 111.
One further general point must be made, and that is that if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated. This is especially true of law enforcement, which involves the freedom of the subject. Here again, Dickson J. made this clear in Hunter v. Southam Inc. After repeating that the purpose of s. 8 of the Charter was to protect individuals against unjustified state intrusion, he continued at p. 160:
That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. [Emphasis in original.]
He was there speaking of searches, but as I will endeavour to show, the statement applies equally to seizures.
- I shall now look more closely at the issues raised by the appellant in the light of these considerations.
Was There a Search or Seizure?
In this case, unlike Pohoretsky, where this was conceded, there was no search. The doctor simply collected the blood as it flowed from an open wound and it was later handed over by him to the police officer. It should be observed, however, that s. 8 of the Charter does not protect only against searches, or against seizures made in connection with searches. It protects against searches or seizures. As Errico Co. Ct. J. put it in Milton v. The Queen (1985), 16 C.R.R. 215, at p. 226: "The words are used disjunctively and although in instances it is a search and seizure that will be under scrutiny as was the situation in Southam, the Charter is worded so that a seizure simpliciter could offend against the section." See also R. v. Dzagic (1985), 1985 2169 (ON SC), 16 C.R.R. 310 (Ont. H.C.), at p. 319.
As I see it, the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person's consent. That is what occurred in Pohoretsky, supra. The focus of the enquiry in that case was on the actual taking of the blood sample. But one must bear in mind why that was so. In Pohoretsky, the blood sample was taken at the request of the police officer. The taking of the blood sample, therefore, immediately triggered s. 8 scrutiny. Section 8 was designed to protect against actions by the state and its agents. Here too the focus of enquiry must be on the circumstances in which the police officer obtained the sample. However, the circumstances under which it was obtained by the doctor are by no means irrelevant.
There was no consent to the taking of the blood sample in this case; Mr. Dyment was unconscious at the time. But even if he had given his consent, I do not think that would have mattered if the consent was restricted to the use of the sample for medical purposes; see R. v. Griffin (1985), 22 C.R.R. 303 (Ont. Dist. Ct.) As I have attempted to indicate earlier, 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.
Here of course there was no consent and none could be implied from the circumstances. The simple fact is that Mr. Dyment was brought to the hospital for medical treatment. Whether the actions of the doctor could, in strictness, be justified as an emergency measure necessary for the preservation of the life or health of Mr. Dyment, I need not explore. It was a perfectly reasonable thing for a doctor who had been entrusted with the medical care of a patient to do. However, I would emphasize that the doctor's sole justification for taking the blood sample was that it was to be used for medical purposes. He had no right to take Mr. Dyment's blood for other purposes. I do not wish to put the matter on the basis of property considerations, although it would not be too far‑fetched to do so. Some provinces expressly vest the property of blood samples in the hospital, a matter I consider wholly irrelevant. What I wish to emphasize, rather, is that I cannot conceive that the doctor here had any right to take Mr. Dyment's blood and give it to a stranger for purposes other than medical purposes unless the law otherwise required, and any such law, too, would be subject to Charter scrutiny. Specifically, I think the protection of the Charter extends to prevent a police officer, an agent of the state, from taking a substance as intimately personal as a person's blood from a person who holds it subject to a duty to respect the dignity and privacy of that person.
The Task Force on Privacy and Computers, supra, pp. 23 et seq., like other similar studies, identified hospitals as one of the specific areas of concern in the protection of privacy. This is scarcely surprising. At one time, medical treatment generally took place in the home, or at the doctor's office, but even then, of course, the confidentiality of the doctor‑patient relationship was fully accepted as an important value in our society. This goes back as far as the Hippocratic Oath. The Code of Ethics of the Canadian Medical Association sets forth, as item 6 of the ethical physician's responsibilities to his patient, that he "will keep in confidence information derived from his patient, or from a colleague, regarding a patient and divulge it only with the permission of the patient except when the law requires him to do so"; see T. D. Marshall, The Physician and Canadian Law (2nd ed. 1979), p. 14. This is obviously necessary if one considers the vulnerability of the individual in such circumstances. He is forced to reveal information of a most intimate character and to permit invasions of his body if he is to protect his life or health. Recent trends in health care exacerbate the problems relating to privacy in the medical context, particularly in light of the health‑team approach in an institutional setting and modern health information systems. If the health‑team approach gives a patient easy access to a wide range of medical services, it inevitably results in the fragmentation of the classical doctor‑patient relationship among a team of medical and para‑medical personnel. The dehumanization that can result has led some hospitals in the United States to appoint an ombudsman for patients. The Report of the Commission of Inquiry into the Confidentiality of Health Information (The Krever Commission), 1980, has drawn attention to the problem in the law enforcement context in the following passage, vol. 2, at p. 91:
...the primary concern of physicians, hospitals, their employees and other health‑care providers must be the care of their patients. It is not an unreasonable assumption to make that persons in need of health care might, in some circumstances, be deterred from seeking it if they believed that physicians, hospital employees and other health‑care providers were obliged to disclose confidential health information to the police in those circumstances. A free exchange of information between physicians and hospitals and the police should not be encouraged or permitted. Certainly physicians, hospital employees and other health‑care workers ought not to be made part of the law enforcement machinery of the state. [Emphasis added.]
Under these circumstances, the demands for the protection of personal privacy become more insistent, a truth that has been recognized by governments. I look upon the Hospitals Act and its regulations not so much as justifying the need for privacy in this case but rather as a testimony that such protection is required. Under these circumstances, the courts must be especially alert to prevent undue incursions into the private lives of individuals by loose arrangements between hospital personnel and law enforcement officers. The Charter, it will be remembered, guarantees the right to be secure against unreasonable searches and seizures.
In the present case, the Crown submits that the police officer was merely given the evidence following a conversation with the doctor and did not demand it or seize it. This submission suffers from several flaws. To begin with, though we have no evidence to indicate the nature of the "conversation" between the doctor and the officer, I find it hard to believe the doctor merely volunteered it. Like the Krever Commission, I am not, as presently advised, prepared to say that doctors and hospitals should be prohibited from giving information to the police no matter what the circumstances may be. But it is one thing to inform, quite another to supply material which, if used, amounts, in the words of Lamer J. in Pohoretsky, supra, at p. 949, to conscripting the accused against himself. However, the most important flaw, and the matter that has compelling weight, is that when the officer took the sample from the doctor, he took something that the doctor held for medical purposes only, subject to a well‑founded expectation that it was to be kept private. In the circumstances in which it was taken, Mr. Dyment was entitled to a reasonable expectation of privacy. If, as Dickson J. underlined in Hunter v. Southam Inc., s. 8 is intended to protect "people not places", it is equally true that it is intended to protect people not things. In other words, as he indicated, that provision is concerned not merely with the protection of property but with the protection of the privacy interests of individuals from search or seizure. If I were to draw the line between a seizure and a mere finding of evidence, I would draw it logically and purposefully at the point at which it can reasonably be said that the individual had ceased to have a privacy interest in the subject‑matter allegedly seized.
The present case may usefully be contrasted with R. v. LeBlanc (1981), 1981 3213 (NB CA), 64 C.C.C. (2d) 31 (N.B.C.A.) There the police, after taking the accused to hospital, obtained a sample of his blood which was found on the front seat of the vehicle. The appellant in the present case observed that there can be no question that in LeBlanc it was a reasonable conclusion that the accused had "abandoned his blood", although it seems best to put it in Charter terms by saying that he had ceased to have a reasonable expectation of privacy with regard to it. In that case, the evidence was truly `gathered', not seized. In the present case, however, the respondent may, for some purposes perhaps, be deemed to have impliedly consented to a sample being taken for medical purposes, but he retained an expectation that his privacy interest in the sample continue past the time of its taking. Indeed, the doctor, in extracting the blood, placed himself in a situation where, pursuant to professional ethics and likely to hospital management regulations as well, he was charged with a duty to use the blood only for medical purposes. Under these circumstances, the sample was surrounded by an aura of privacy meriting Charter protection. For the state to take it in violation of a patient's right to privacy constitutes a seizure for the purposes of s. 8.
I, therefore, conclude that in taking the blood sample, the officer breached Mr. Dyment's privacy interests in it, and so effected a seizure within the meaning of s. 8.
Was the Seizure Unreasonable?
Counsel for the Crown submitted that if the taking by the police constituted a seizure within the meaning of s. 8, it was reasonable even though this might be illegal. This Court has since had occasion to deal with this issue in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265. However, I need not for the purposes of this case consider whether or not the taking of the blood was illegal, since it is clear to me, quite apart from this issue, that the seizure here was not reasonable.
To begin with, I do not accept that the violation of Mr. Dyment's privacy interests was minimal. As I indicated, to use an individual's blood or other bodily substances confided to others for medical purposes for purposes other than these seriously violates the personal autonomy of the individual. In this particular case, the seizure infringed upon all the spheres of privacy already identified, spatial, personal and informational. Under these circumstances, it seems to me that in the absence of pressing necessity, it was unreasonable for the police officer to act as he did. The needs of law enforcement are important, even beneficent, but there is danger when this goal is pursued with too much zeal. Given the danger to individual privacy of an easy flow of information from hospitals and others, the taking by the police of a blood sample from a doctor who has obtained it for medical purposes cannot be viewed as anything but unreasonable in the absence of compelling circumstances of pressing necessity; see R. v. Santa (1983), 6 C.R.R. 244 (Sask. Prov. Ct.), at p. 251. The need to follow established rules in cases like this is overwhelming. We would do well to heed the wise and eloquent words of Brandeis J. (dissenting) in Olmstead v. United States, 277 U.S. 438 (1928), at p. 479: "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well‑meaning but without understanding."
In Hunter v. Southam Inc., supra, at p. 161, this Court expressed the view that "where it is feasible to obtain prior authorization, ... such authorization is a precondition for a [constitutionally] valid search and seizure" (emphasis added). In the present case, as I observed earlier, the focus is not predominantly on the taking of the sample by the physician, but on its seizure by the police. It seems obvious to me that, assuming adequate cause, the police officer could have obtained a warrant authorizing the seizure of the sample (as happened, for example, in R. v. Carter (1982), 1982 2171 (ON CA), 144 D.L.R. (3d) 301 (Ont. C.A.)), and there was nothing that could justify his failure to do so. No exigent circumstances existed because the blood had been extracted within the two‑hour limit that is said to be essential to an accurate test. Indeed, when the facts are scrutinized, the most probable reason why no warrant was obtained was because the officer lacked the requisite belief that the accused had committed an offence and that the seizure was likely to yield evidence which was probative of that offence. Not only do the circumstances not reveal circumstances capable of justifying the failure to obtain a warrant, but the conduct of the police failed to comport with the minimal constitutional requirement that there be reasonable and probable grounds to believe that the search would yield evidence. As this Court observed in Hunter v. Southam Inc., supra, at pp. 167‑68:
The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly‑based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one.
Quite simply, the constitution does not tolerate a "low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude" (Hunter v. Southam Inc., supra, at p. 167); if anything, when the search and seizure relates to the integrity of the body rather than the home, for example, the standard is even higher than usual. I have no difficulty concluding that even if the seizure in this case was legal, it was clearly unreasonable in terms of s. 8.
- I would add one further thought. In sensitive areas like this, it is important in the interests of law enforcement that there be clear rules for the guidance of police conduct, so as to maintain the support of the citizenry for law enforcement authorities. It is also important for them to know precisely how far they should go for their own protection and guidance. As the Law Reform Commission of Canada states in its Report on Obtaining Forensic Evidence (No. 25, 1985), at p. 1:
Besides protecting those individual interests that are directly threatened by the spectre of unchecked state power and unfettered police discretion, the creation of legal rules is necessary to provide the police with adequate guidance as to how they should conduct criminal investigations, and thereby to ensure that such investigations conform to the standards set by the Canadian Charter of Rights and Freedoms.
Should the Evidence Be Excluded?
The factors to be taken into account in determining whether evidence should be excluded under s. 24(2) of the Charter because it would bring the administration of justice into disrepute have already been set forth by this Court in R. v. Collins, supra, and I need only examine those that are particularly relevant here.
The Charter breach, in my view, was a very serious one. In Pohoretsky, supra, at p. 949, Lamer J. observed that "a violation of the sanctity of a person's body is much more serious than that of his office or even of his home". It is true that the police in that case were directly implicated in the invasion of the appellant's body. However, as I earlier indicated, the 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. In R. v. DeCoste (1983), 1983 5261 (NS SC), 60 N.S.R. (2d) 170 (S.C.T.D.), at p. 174, Grant J. stated his belief that "members of the public consider a hospital as a place where the sick and injured are treated and not a place where a doctor would take blood from an unconscious or semi‑conscious person for the sole purpose of satisfying the unlawful demand or request of a police officer". I agree, and I do not think they would feel differently about doctors and medical personnel freely handing over blood taken for medical purposes to a police officer or the police officer accepting it when there are well‑known and recognized procedures for obtaining such evidence when the police have reasonable and probable grounds for believing a crime has been committed. In such a case, all are implicated in a flagrant breach of personal privacy. Though he spoke in terms of the pre‑Charter "community shock" test, Mitchell J. in this case was substantially right when he stated at p. 355:
If the court received evidence obtained by taking a blood sample without consent, medical necessity or lawful authority, and without the police having any probable cause, it would bring the administration of justice into disrepute . . . . What happened here constitutes such a gross violation to the sanctity, integrity and privacy of the appellant's bodily substances and medical records that the community would be shocked and appalled if the court allowed the admission of this evidence in the face of the Charter.
Such a practice would bring both the administration of health services and the administration of justice into disrepute.
- This is all the more so having regard to the manner in which the sample was obtained ‑‑ a manner that MacDonald J. regarded as constituting a flagrant breach of the Charter. As he put it at p. 218:
...I find that the manner in which the sample was here obtained would bring the administration of justice into disrepute. I have reached this conclusion because I consider the breach of the respondent's Charter rights to have been flagrant. Time was not a factor in this case and there were other investigative techniques that could have been used to obtain the evidence. The blood sample had been taken within the two hour limitation period and there was no evidence that it would be destroyed.
While, as he added, there was no evidence that the respondent's rights were knowingly breached, I agree with him that such lax police procedures cannot be condoned.
Disposition
- Under these circumstances, I agree with the courts below that the evidence should be excluded, and I would, therefore, dismiss the appeal.
The judgment of Beetz, Lamer and Wilson JJ. was delivered by
Lamer J.‑‑My brother Justice La Forest has set out the facts, summarized the judgments below and stated the issues to be addressed.
For the reasons given by my brother La Forest J., the fact that the doctor, at the time he remitted the vial to the police, had in his possession the respondent's blood subject to a duty to respect respondent's privacy is sufficient to qualify the receipt by the police of the vial of blood without the consent of the doctor's patient as being a seizure as that term is meant in s. 8 of the Canadian Charter of Rights and Freedoms. As it was a warrantless seizure, the evidentiary burden of establishing that it was nevertheless a lawful seizure rested upon the shoulders of the Crown (see Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 161). The Crown has not adduced any evidence supportive of that conclusion, and there is no evidence on record in that regard. The seizure was therefore an unlawful one. Furthermore, there was no urgency or any other reason justifying such a seizure without first obtaining a warrant, assuming, of course, that the police officer, after having spoken to the doctor, could bring himself within the conditions required for obtaining a valid warrant. In R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, I (along with the Chief Justice and Justices Wilson and La Forest) was of the view that to be reasonable, a search or seizure had to meet the following requirements (p. 278):
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.
- The fact that the seizure in this case was unlawful, in my view, ends the enquiry as to whether the search was an unreasonable one. The only issue left is whether the evidence should be excluded. For the reasons given by my brother La Forest J., I am of the view that this is a case where the evidence must be excluded and the appeal dismissed.
The following are the reasons delivered by
McIntyre J. (dissenting)‑‑I have had the advantage of reading the reasons for judgment prepared in this appeal by my colleagues, Justices La Forest and Lamer. I am unable, however, with great deference to their views, to agree with their judgments.
The facts have been recited by La Forest J. and they reveal that the doctor without consent took free‑flowing blood from the unconscious respondent for medical purposes. He later gave the blood to the police officer. There is no evidence as to what passed between the doctor and the police officer and no inference adverse to the officer may be drawn. The evidence does disclose, however, that the officer did not request the taking of the blood sample and he did not see the doctor take it.
I agree with La Forest J. that there was no search here. If there was a wrongful seizure, it was made by the doctor and there is no evidence which would implicate the police officer. The sole question here is whether the evidence of the blood analysis, because of the improper disposition of this blood sample by the doctor, should be excluded. It may only be excluded if its admission would bring the administration of justice into disrepute.
It should be observed that Dyment was charged with having care and control of a motor vehicle having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in l00 millilitres of blood. The sample would have been decisive in this case.
I am unable to consider that the admission of this evidence would bring the administration of justice into disrepute. No misconduct is shown against the police officer and there is nothing to indicate any bad faith on his part. Any wrongful seizure by the doctor or any wrongful dealing with the sample may be put at his door, but there is nothing to show impropriety on the part of the police. Indeed, having received "real evidence" decisive of the issue in the case it was his duty to tender it in evidence. In this, I would refer to the reasons of the Chief Justice in R. v. Jacoy, 1988 13 (SCC), [1988] 2 S.C.R. 548, in reaching a similar conclusion relating to the exclusion of evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. I would allow the appeal and restore the conviction.
Appeal dismissed, McIntyre J. dissenting.
Solicitor for the appellant: Darrell E. Coombs, Charlottetown.
Solicitor for the respondent: John W. Maynard, O'Leary.
- Le Dain J. took no part in the judgment.
