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.

Although a decision at the Provincial Court level, R. v. Abbot 2015 BCPC 415 cited some SCC decisions in arriving at a decision. Abbot drove his vehicle off the road, over a ditch and through a 7-8 foot fence, landing on private property – in the course of which his head went out through the roof of his vehicle and then back in through the roof. He received a very significant injury to his head, was confused, and at times incoherent from the time of the accident until some point during his treatment at the hospital.

When the officer arrived, Abbot was being supported by the property owner outside the vehicle. Given the head injury and the fact the accused’s pupils were large and responded unevenly to light, the officer believed he was, at the very least, concussed. His speech was slurred. Abbot said he was fine and just wanted to go home. He did not want any medical treatment. It was apparent to the officer that Abbot was not fine and that he would need to go to the hospital. Abbot said he was not injured, but just drunk.

Based on this statement, the slurred speech and the accident, she detained him for impaired driving. The ambulance attended and when Abbot was moved to the stretcher, he began vomiting at which point the officer could smell the odour of liquor from the vomit and Abbot’s breath. Abbot was taken by ambulance to the local hospital, in the course of which he was yelling and swearing his objections to being strapped down – asserting that he was Scottish and should not be held captive but needed open spaces. He did not respond to and did not appear to understand the Charter warnings or the breath demand read to him by the officer.

Once at the hospital, Abbot remained volatile, upset and crying one minute, and angry and swearing the next. He was trying to free himself from the restraints of the stretcher. He said he was refusing medical treatment and did not want anyone to touch him. The officer asked the doctor if blood samples would be taken in the normal course of treatment and she was told that they would. She told him the RCMP would seek a warrant for any samples taken and the doctor said he’d make sure the lab didn’t destroy them. The doctor did order blood samples in order to determine how much alcohol was in Abbot’s system as he needed to know to what extent Abbot’s confusion was or might be the result of alcohol rather than the head injury. Later in the morning, Abbot was taken into surgery where the doctor stitched his scalp back together. Abbot signed a consent prior to the surgery.

The blood sample taken from Abbot was analyzed at the hospital and then stored in the lab refrigerator where it would normally be kept for a week and then discarded unless further tests were ordered during that period. No further tests were ordered on Abbot’s blood. Five days later, the officer telephoned the lab and spoke to the chief lab technician. The officer confirmed with him that the blood samples taken from Abbot were still at the lab and asked him to put those samples aside as the RCMP would be preparing a warrant for them. The lab technician said the samples would be placed in a bag and labeled for RCMP use and kept labeled and secure until the warrant was produced.

The police had all the information necessary to complete an ITO and apply for a warrant, but due to an injury of the investigator, she was off work for some time and the warrant was not executed and the blood samples seized until approximately 3 months later.  Upon seizure, the samples were in the refrigerator of the hospital lab, labeled “Keep for RCMP Warrant”. No Report to Justice was ever completed for the seized blood samples. They were sent to the RCMP lab and an analysis was conducted on them some 10 weeks after the seizure. The officer was aware of the requirement for a Report to Justice to be filed, but simply forgot to attend to it.

At issue at Trial was whether the doctor and lab technician acted as “agents for the police” in directing that Abbot’s blood be held at the hospital lab until the police attended with a warrant to seize it, and if so, whether their actions constituted an unreasonable seizure within the meaning of s. 8 of the Charter; another issue was the lack in filing a Report to Justice.

The Crown relied on the B.C. Court of Appeal decision in R. v. Lunn (1990) 61 CCC (3d) 193 for the proposition that hospital employees are not acting as agents for the State when they hold on to hospital blood samples at the request of police in anticipation of a police warrant. Lunn, however, did not consider the situation where a doctor or hospital employee takes positive action to hold onto a blood sample after the period when it would normally be discarded, at the request of the police, and for no ongoing medical purpose, because in Lunn, the doctor told the officer that the blood samples would normally be discarded after 7 days, and the warrant was executed on the 6th day.

In R. v. Christensen 2005 BCPC 173, the accused was taken to the hospital after an accident. Blood was taken for medical purposes and the police were advised by a nurse that the samples had been taken and would be held for 7 days. When the police advised they would be seeking a warrant to seize the blood, they were told that the lab would hold onto the blood until the warrant was delivered. The police continued investigating the accident and it was not until about day 9 after the samples had been taken that they felt they had the grounds to apply for a warrant. The initial warrant was denied because of errors relating to the time and place of the search and a subsequent ITO and warrant were not prepared for another three weeks as the officer dealing with the file went on holiday. Five and a half weeks after the blood samples were taken at the hospital the warrant was executed and the blood samples seized. However, in that case, the police did not request the blood to be held – rather they advised of their intention to seek a warrant and the hospital employees chose to keep the blood beyond the 7 day limit in anticipation of the warrant.

By contrast, in R. v. Pohoretsky, [1987] 1 S.C.R. 945 for example, the actions of a doctor who took blood from an incoherent and delirious patient at the request of a police officer constituted an unreasonable search and seizure. In R .v. Dyment, [1988] 2 S.C.R. 417 La Forest, J. explains that this was so because the sample was taken at the request of a police officer and s. 8 was designed to protect against actions by the state and its agents. Dyment, at para. 38:

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 hospital to police were allowed.

In this case, Abbot’s blood was taken, with his consent, for medical purposes. Those purposes included any testing of the blood by the hospital for treating Abbot and the retention of the blood by the hospital as required for such treatment – i.e. 7 days. In holding the blood samples for a further three months at the request of the officer and for the purpose of an anticipated police seizure, the court found that the lab technician was not acting for any medical purpose. He was assisting the police for a non-medical purpose and in doing so he became an agent of the police and his actions were subject to Charter scrutiny. The doctor, on the other hand, did nothing other than tell the police officer he would make sure the lab did not destroy the blood. He was not asked to do this by the officer and there was no evidence that he ever gave any instructions to the lab in this regard. He was not acting as an agent for the police.

The judge ruled that the decision of the lab technician to hold Abbot’s blood sample for the police, after the point in time when it would otherwise have been discarded, was a seizure within the meaning of s. 8. Abbot clearly had a privacy interest in his own blood. It was kept by a state agent without his knowledge or consent for reasons unrelated to the medical purpose for which it was taken and beyond the time frame for which it would otherwise have been in the custody of the hospital, and the seizure, therefore, was not authorized by law.

For the reasons set out in R. v. Garcia-Machado 2015 ONCA 569, (and in particular paragraphs 39 – 55), the court also found that the failure by the officer to complete a Report to Justice for the seizure of the blood samples and the hospital records as required by s. 489.1(1) of the Criminal Code also resulted in a seizure which was not authorized by law and constituted a breach of s. 8 of the Charter (see also R. v. Paterson 2011 BCSC 1728). While that failure on its own was far less serious and would not, on its own lead to the exclusion of the blood samples, in this case, it was indicative of a somewhat careless or negligent attitude which precluded the judge from finding that the police acted in good faith.

In the end, Provincial Court Judge J.C. Birnie ruled:

The use of blood samples in cases involving motor vehicle accidents is an important part of maintaining safe roadways. The samples were taken for a legitimate medical purpose and with the accused’s consent. At the same time, in the context of the systemic goal of the integrity of the justice system it is difficult to see how an informed and thoughtful public could condone the gathering of evidence in circumstances, such as here; where a person gives consent for the taking of blood in the course of emergency medical treatment, and that blood is then held by hospital officials at the request of the police for no medical purpose. The admission of the blood samples in this case would send a message that in the context of an impaired driving investigation, where the police had other investigative tools to use but simply did not do so, (i.e. seeking a blood warrant under s. 256, preparing a warrant for the hospital samples in a timely way), a person’s right to control the use of their own bodily substances does not count. In my view such a message would undermine public confidence in the administration of justice and I find that the administration of justice would be brought into disrepute if the blood samples were admitted in this case. The blood samples and the report of [lab employee] are therefore excluded.

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Filed under Acting as an Agent of the State, Impaired Driving, Search and Seizure

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