Medical Information and the Police Investigation

I recently had the opportunity (or misfortune, depending upon how you want to look at it) to spend some time with a number of nurses that were visiting my wife. Over time, as in most cases, the topic of the evening came around to “shop-talk”. I was surprised when a few of the nurses asked me to what extent we (police) can ask them personal and medical information of a patient in their care, the same person currently under investigation by us (e.g. impaired driving investigation). I was equally surprised when they said they often feel obligated to tell the officer the information, although they know there are privacy concerns.

I summed it up by saying that just because we get the information (from them), it does not mean we are legally entitled to have it. This years police cadets have heard me say this phrase on numerous occasions during our sessions on search and seizure this year. I am surprised that experienced officers are still taking the risks associated with asking information where there is a reasonable expectation of privacy and expect to use this information to form grounds for a breath or blood demand, or in a warrant application. I would hate to be the officer on the witness stand when defence counsel alludes, even in the slightest, that the information was illegally obtained and suggests that the officer used this information to formulate reasonable grounds.

This is not a new issue by any stretch of the imagination, and given the volumes of case law that have followed since, it warrants a quick review if this practice is still occurring. I will touch on one case that most others have cited since then.

R. v. Dersch [1993] S.C.J. No. 116 – the accused was charged with criminal negligence causing death and bodily harm and having the care and control of a motor vehicle while impaired by alcohol or drugs and thereby causing death and bodily harm. The motor vehicle he was operating had crossed the centre dividing line of a highway and collided head-on with another vehicle. The driver of the other vehicle was killed and three other persons, including the accused, were injured. A police officer at the accident scene observed a smell of alcohol from the accused and noticed that his eyes were glassy and bloodshot. The accused was taken to a hospital. The doctor who examined him attempted to insert an intravenous line into the accused’s arm, but the accused objected in strong language and refused to have a blood sample taken under any circumstances. The doctor requested the assistance of a surgeon present, who took a blood sample while the accused was unconscious, for medical reasons. One vial of the blood was used for a blood alcohol test. When the accused was subsequently asked by the police officer who had accompanied him to the hospital to provide a blood sample, he refused. In response to a written request by police, the doctor prepared a medical report which included the results of the blood alcohol test. A search warrant was later issued for the blood sample taken. The blood sample and blood alcohol test results were ruled admissible at the accused’s trial following a voir dire and the accused was convicted on all four counts. The Court of Appeal upheld the convictions. Defence appealed to the SCC, who allowed the appeal and directed a new trial.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.:

Participation in the emergency treatment of the accused did not in itself render the physicians agents of government for the purposes of s. 32 of the Canadian Charter of Rights and Freedoms, nor were they acting as agents of government in taking the blood sample in this case solely for medical purposes. It is nonetheless clear that some of the physicians’ conduct was wrong. The blood sample taken despite the accused’s unequivocal instruction to the contrary was improper, and the provision to the police of specific medical information about the accused without his consent violated the doctor’s common law duty of confidentiality to the accused. Since the accused had a reasonable expectation of privacy in respect of the information revealed, the obtaining of that information by the police in the circumstances is analogous to a search or a seizure within the meaning of s. 8 of the Charter. The information was obtained without a warrant, rendering the search by the police prima facie unreasonable, and the Crown has not satisfied the burden of rebutting this presumption of unreasonableness. It has not been demonstrated that there is any basis in statute or under the common law for this search and seizure, nor was there any emergency in the sense of the evidence being in danger of being destroyed if the time were taken to obtain a warrant. In view of this conclusion, it is not necessary to determine whether there was also a violation of the accused’s rights under s. 7 of the Charter. Since it has not been established that there is any basis under statute or the common law for the conduct of the police, that conduct cannot be said to be “prescribed by law” within the meaning of s. 1 and therefore cannot be justified thereunder.

The net result of the Charter violation by police in this case was to take advantage of the physicians’ improper conduct in taking the blood sample contrary to the patient’s specific instructions. When this factor is considered together with the seriousness of the Charter violation and the importance of guarding against a free exchange of information between health care professionals and police, the impugned evidence should be excluded pursuant to s. 24(2) of the Charter. In the absence of the evidence of the accused’s blood alcohol level, there is no evidence sufficient to sustain convictions on the care and control charges, which should be dismissed. While there remains evidence to support the criminal negligence charges, this is not an appropriate case in which to apply the curative provision, and a new trial is directed.

In short, why obtain information illegally from the nurse or doctor; we obviously cannot use this information to formulate reasonable grounds for a demand or in a search warrant application? Getting the information in this way opens us up to attack from defence counsel and runs the high risk of losing the case. We have to get our grounds legally, which is not often the easiest route, but having a reason for doing something does not make that thing reasonable (or legal) to do in all cases.

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