R. v. Green, [1992] 1 S.C.R. 614
Her Majesty The Queen Appellant
v.
John Herbert Green Respondent
Indexed as: R. v. Green
1992: February 7; 1992: February 27.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Stevenson and Iacobucci JJ.
on appeal from the nova scotia supreme court, appeal division
Criminal law ‑‑ Demand for blood samples ‑‑ Whether demand must incorporate assurances that blood samples will only be taken by or under direction of qualified medical practitioner and that taking of samples will not endanger person's life or health ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 254(3), (4), (5).
The accused was involved in a motor vehicle accident and sustained several injuries. At the hospital where he was taken for treatment, a police officer advised him of his right to retain and instruct counsel without delay. The officer, who had reasonable grounds to believe that the accused had been drinking, made a demand for blood samples under s. 254(3) of the Criminal Code. The demand did not incorporate the assurances of s. 254(4) that the samples of blood would only be taken by or under the direction of a qualified medical practitioner and that the taking of the samples would not endanger the person's life or health. The accused refused and was charged with failing to comply with a demand to provide samples of his blood contrary to s. 254(5). He was acquitted at trial and the acquittal affirmed by the Court of Appeal.
Held: The appeal should be dismissed.
A demand for blood samples by a peace officer pursuant to s. 254(3) of the Code must incorporate the assurances of s. 254(4) that the samples of blood will only be taken by or under the direction of a qualified medical practitioner and that the taking of those samples will not endanger the life or health of the person. Because the demand made to the accused was not validly made under s. 254(3), he cannot be convicted under s. 254(5) for the offence of failing to comply with a demand under s. 254.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 10(b).
Criminal Code, R.S.C., 1985, c. C‑46 [am. c. 27 (1st Supp.), s. 36], s. 254(3), (4), (5).
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1990), 1990 CanLII 2523 (NS CA), 100 N.S.R. (2d) 82, 272 A.P.R. 82, 60 C.C.C. (3d) 362, 25 M.V.R. (2d) 281, dismissing the Crown's appeal from accused's acquittal on a charge of failing to comply with a blood sample demand. Appeal dismissed.
Robert C. Hagell, for the appellant.
Douglas L. MacLellan, Q.C., and Maurice G. Smith, for the respondent.
//La Forest//
The judgment of the Court was delivered by
La Forest J. -- On June 25, 1989, the respondent was involved in a single vehicle accident. He sustained several injuries including a cut on his forehead and a fracture of his femur above the right knee. The ambulance attendants detected the odour of alcohol on the respondent. He told them he had been drinking. The respondent was taken to the hospital for treatment. When the ambulance attendants left the examination room, they spoke to Corporal Holmes of the R.C.M.P. Corporal Holmes entered the examination room and spoke to the respondent who was complaining of pain in his leg. He advised the respondent of his right to retain and instruct counsel without delay. He then read the following demand:
I demand you provide such samples of your blood as in the opinion of a qualified medical practitioner or qualified technician taking the samples are necessary to determine the concentrations if any of alcohol in your blood. Should you refuse this demand, you will be charged with the offence of Refusal.
The respondent refused the demand. He was charged with refusing to comply with a demand to provide samples of his blood contrary to s. 254(5) of the Criminal Code, R.S.C., 1985, c. C-46.
The respondent was acquitted at trial in the Nova Scotia Provincial Court. The Crown's appeal was dismissed by the Appeal Division of the Supreme Court of Nova Scotia: (1990), 1990 CanLII 2523 (NS CA), 100 N.S.R. (2d) 82, 272 A.P.R. 82, 60 C.C.C. (3d) 362, 25 M.V.R. (2d) 281. Leave to appeal to this Court was then granted, [1991] 1 S.C.R. xiii.
The relevant provisions of the Code read as follows:
- . . .
(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding two hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable
(a) such samples of the person's breath as in the opinion of a qualified technician, or
(b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person,
(i) the person may be incapable of providing a sample of his breath, or
(ii) it would be impracticable to obtain a sample of the person's breath,
such samples of the person's blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples
are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.
(4) Samples of blood may only be taken from a person pursuant to a demand made by a peace officer under subsection (3) if the samples are taken by or under the direction of a qualified medical practitioner and the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the person.
(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.
This case raises the issue of whether a demand for blood samples by a peace officer pursuant to s. 254(3) must incorporate the assurances of s. 254(4) that the samples of blood will only be taken by or under the direction of a qualified medical practitioner and only if the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the patient. In other words, it raises the question whether the phrase "under the conditions referred to in subsection (4)", which appears in s. 254(3), should be interpreted as describing what the demand should contain. In my view it should. Otherwise, the phrase would be surplusage. Parliament's purpose appears to be directed to putting to rest the fear that an improper procedure might be followed or that unqualified persons might conduct the procedure. The danger is that a person might be prompted to refuse to take the test on such grounds. While a detained person has the right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms, it must be remembered that the blood sample, unlike a breath test, may be taken in circumstances where a person is particularly vulnerable. Finally, while s. 254(3) is not a model of clarity, any ambiguity should be resolved in favour of the accused. Because the demand made to the respondent was not validly made under s. 254(3) as thus interpreted, the respondent cannot be convicted under s. 254(5) for the offence of failing to comply with a demand under s. 254.
I note that following the decision in the courts below, the R.C.M.P. issued new demand cards adding the following sentence to the previous notice:
Blood samples will only be taken by or under the direction of a qualified medical practitioner and if the qualified medical practitioner is satisfied that the taking of the samples will not endanger your life or health.
A demand made in accordance with this new form would, in my view, comply with the requirements of s. 254(3).
I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: The Attorney General of Nova Scotia, Halifax.
Solicitors for the respondent: Douglas L. MacLellan and Maurice G. Smith, Antigonish.