ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-832AP
DATE: 20140107
BETWEEN:
HER MAJESTY THE QUEEN
Brian R. Linley, for the Crown
Appellant
- and -
MAUREEN DALY
Hedley Thompson, for the Respondent
Respondent
HEARD: December 5, 2013
On appeal from the acquittal entered on December 3, 2012 by Justice G.J. Brophy of the Ontario Court of Justice sitting at Walkerton.
O’Connor J.:
Overview
[1] The Crown appeals the acquittal of Maureen A. Daly on charges of impaired driving and operating a motor vehicle with a blood alcohol concentration (BAC) in excess of 80 milligrams in 100 millilitres of blood, contrary to ss. 253(1) (a) and (b) of the Criminal Code, R.S.C., 1985, c. C-46.
[2] For the reasons set out below, the appeal is granted and a new trial is ordered.
[3] It was agreed at trial that Ms Daly was operating her van when she failed to stop at a stop sign, causing a violent collision with another vehicle in an intersection. The four occupants of the other car and Ms Daly were injured, she more seriously than the others. Both vehicles were extensively damaged.
[4] Ms Daly was taken by ambulance to the nearby Hanover Hospital, treated for her injuries and then transported to London for further medical treatment.
[5] In Hanover, she was treated by Dr. Yaniv Berliner and other E.R. staff. A sample of her blood was taken by a technologist for medical purposes. It was analyzed by hospital staff for alcohol content, as is routinely done, because the amount, if any, of alcohol in a patient’s system may affect the treatment to be prescribed.
[6] After Dr. Berliner completed treating Ms Daly he had a conversation with Sgt. Robert Smart, the West Grey Police Service officer investigating the accident, during which the doctor said he had noted an odour of alcohol emanating from her. At the officer’s request, the doctor provided a brief written statement outlining this observation. The doctor testified that he did not consider his observation and information to be medical in nature. It was something anyone could have noted and not peculiar to the doctor/patient relationship, he said.
[7] Sgt. Smart sought and was granted a warrant to seize the Hanover Hospital medical records respecting their treatment of Ms Daly. In the Information to Obtain (ITO) the warrant, the affiant said the reasonable grounds to conclude a criminal offence had been committed included the information obtained from Dr. Berliner of the odour of alcohol he had observed. The records seized included the alcohol levels they found in her blood. The readings were sent to the Centre for Forensic Sciences to be converted to BAC levels. The CFS found her BAC levels to be between 269 and 324 milligrams percent.
[8] The trial judge reviewed in detail the arguments of defence counsel respecting an alleged insufficiency of the material in the ITO. These included the fact that no one at the collision scene, save one woman, observed an odour of alcohol from Ms Daly; some alleged argumentative language in the ITO; and the fact that no mention was made that a carton of wine in Ms Daly’s vehicle, smashed in the collision, still had intact tops, thus precluding her having consumed the wine while driving.
[9] The trial judge concluded that the officer’s treatment of these issues in the ITO was not fatal to the issuing of the warrant to seize the medical records.
[10] He did, however, find that the information the police learned from Dr. Berliner of an alcohol odour from Ms Daly was “…information which derived from a doctor–patient relationship.” He found that the disclosure was a breach of Ms Daly’s privacy interests and that “…the disclosure by Dr. Berliner of this information is a breach of Ms Daly’s Section 8 rights to be protected from unreasonable search and seizures. She has a high degree of interest of a privacy nature related to this information and she is entitled to have that protected…”
[11] Having found a s. 8 breach, the trial judge then undertook a s. 24(2) analysis. He summarized correctly the three considerations set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.). The court must consider the seriousness of the Charter breach, the impact of the breach on the Charter protected interests of the accused and society’s interest in the adjudication of the matter on its merits.
Analysis
[12] In my view the trial judge erred in both finding a breach of Ms Daly’s s. 8 Charter rights in the circumstances of this case and in his application of the s. 24(2) Grant consideration to the facts of the case.
[13] To engage a s. 8 Charter right a person must have a reasonable expectation of privacy in the subject matter of the search: see R. v. Edwards, 1996 255 (SCC), [1996] 1 SCR 128 (S.C.C.), at para. 33. The issue in this case is whether Ms Daly had a reasonable expectation of privacy in her breath, that is, whether that expectation was both subjectively and objectively reasonable.
[14] Ms Daly asserts informational privacy respecting her breath. Informational privacy protects the right to prevent certain personal information from falling into the hands of the state. In R. v. Plant (1993), 1993 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.), at para. 34 Sopinka J. said that “…s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”. In this case Ms Daly did not testify on the voir dire. Thus, there is no direct evidence of her subjective expectation of privacy in the information observed by the doctor. However, I would find that the smell of alcohol is not the type of personal information that meets the Plant test. The consumption of alcohol is not an intimate detail of Ms Daly’s lifestyle or part of her core biographical data that should be kept out of the hands of the state.
[15] Further, I would find that Ms Daly’s expectation of privacy in her breath is also not objectively reasonable. In R. v. Tessling, 2004 SCC 67, 189 C.C.C. (3d) 129, at para. 32, Binnie J. sets out the following factors to be considered when determining whether an expectation of privacy is objectively reasonable.
(a) the place where the alleged "search" occurred;
(b) whether the subject matter was in public view;
(c) whether the subject matter had been abandoned;
(d) whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
(e) whether the police technique was intrusive in relation to the privacy interest;
(f) whether the use of surveillance technology was itself objectively unreasonable;
(g) whether the FLIR heat profile exposed any intimate details of the respondent's lifestyle, or information of a biographical nature.
[16] A common sense interpretation of these seven criteria strongly supports the Respondent Crown’s position that Ms Daly’s expectation of privacy in her breath was not objectively reasonable. In considering each of them I would find the following:
(a) The search, if it can even be characterized as such, occurred in a semi-public place, a hospital emergency room, where doctors, nurses, visitors and relatives come and go. Accordingly, Ms Daly’s expectation of privacy would not be particularly high.
(b) The subject matter, her breath, was in the air in the treatment room, a location open to public perception.
(c) Ms Daly had clearly abandoned her breath.
(d) The information, i.e. the observation of an alcohol odour, was made by a third party, Dr. Berliner. He was not a state agent, a fact acknowledged by the trial judge. Thus, no state agent breached or promoted or induced a breach of Ms Daly’s s. 8 Charter rights. It was argued that the doctor breached a doctor/patient confidentiality relationship when he divulged what he had observed. If so, that is a matter for his profession’s governing body, not this Court.
(e) The police technique in obtaining the information was not intrusive of Ms Daly’s privacy interests. The officer merely asked Dr. Berliner a question, as part of his obligation to investigate a serious accident.
(f) There was no use of any surveillance technology involved in the obtaining of the information.
(g) The method of discovery of the information did not result in the exposure of any intimate details of a biographical nature.
[17] Thus the learned trial judge erred in his finding that Ms Daly had a privacy interest in her breath that attracted s. 8 Charter protection.
[18] If I am incorrect in the foregoing analysis I would find that the application of the Grant interpretation of s. 24(2) weighs strongly in favour of admission of the evidence.
[19] The three factors to be considered are the seriousness of the Charter breach, the impact on the accused’s Charter protected interest and society’s interest in adjudication of the alleged offence on its merits.
[20] In my view, the Crown correctly asserts that the blood samples taken and analyzed by the medical personnel, then seized under the authority of a warrant and interpreted at the CFS were not taken at the direction of the police, but for medical purposes. Ms Daly was not detained nor under arrest. The officer was simply doing his duty in asking Dr. Berliner a reasonable question.
[21] The alleged breach cannot be characterized as serious, in that the police were carrying out their obligation, under statute, to investigate a potentially serious offence. Their conduct was not intrusive, such as with forcibly taking blood samples. It is arguably less intrusive than taking breath samples or fingerprints, both of which have been found not to have been a serious breach of an accused’s s. 8 Charter rights. The court in Grant observed:
109…The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions (as in Stillman). At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology. The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.
111 While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [Emphasis added.]
[22] Further, society’s interest in adjudication of the offence on the merits is high. It involved a serious motor vehicle accident where five persons were injured as the result of the accused ignoring a stop sign at an intersection.
Result
[23] The appeal is granted and the verdict of not guilty is set aside. The matter is returned to the Ontario Court of Justice for a new trial.
O’CONNOR J.
DATE: January 07, 2014
COURT FILE NO.: 13-832AP
DATE: 20140107
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN, Appellant
BEFORE: O’Connor J.
COUNSEL: Brian R. Linley, Counsel for the Crown, for the Appellant
Hedley Thompson, for the Respondent
RULING
O’CONNOR J.
DATE: January 07, 2014