Category Archives: Acting as an Agent of the State

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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A vice-principal at the accused’s school is a “person in authority” in relation to the accused’s statements on drug charges

R. v. Ermine 2014 SKPC 67 – as this case is out of the Saskatchewan Provincial Court, it has no binding effect, but it is interesting because of the principles discussed in it.

Drugs were found in a school locker shared by the accused and another student. When the accused was asked to remove her belongings from the locker and she took the purse containing the drug, the other student was excused.  The accused, however, was taken to the office where the vice-principal began to question her. The vice-principal sat behind his desk and the accused sat in a chair on the other side of the desk. He then began asking the accused questions. It was at this point that the witnesses begin to give some divergent testimony as to what occurred. The vice-principal said that he questioned the accused in his office for about an hour. She was upset and crying. He asked her if she was selling the drugs at school. She acknowledged that she was but that this was the first time that she had done this. He asked her where she got the drugs and she said from a family friend. He was not yelling at the accused and he denied threatening the accused, making any promises to her, or saying anything by way of an inducement to get her to talk.

The vice-principal said that his normal practice is to interview the student and then decide if the police should be called. In this case, he said that after the accused admitted selling at school, he told her he was going to call the police. This interview occurred on a Friday and it was his recollection that he called the police on the following Monday. After the interview was completed, he let the accused go but kept her purse and the contraband he had located and put them in the school safe until an officer could come and get them. This discussion in the vice-principal’s office was not videotaped or audiotaped and no written statement or verbatim accounting of the questions asked and the answers given were created. At the end of the questioning, the vice-principal made some notes of what he recalled was said, but by his own admission, there were a lot of questions and answers that he did not make note of. He admitted that the length of time that had passed from the meeting in his office until his testimony at trial had affected his memory.

The accused gave a somewhat different version of what took place in the vice-principal’s office. She testified that once the vice-principal found the drugs in her purse, he told her to come to his office. She went to the vice-principal’s office with him and another teacher because she did not feel that she had a choice. In the office, the vice-principal sat behind his desk, she sat in front of his desk and the other teacher sat in a chair by the door. The vice-principal did not tell her she could call her grandparents or anyone else, that she did not have to say anything or that she could leave at any time. Instead, he just started questioning her. The accused said that she was questioned by the vice-principal in his office for over an hour. He kept asking her if she was selling drugs at school. She kept denying that she was selling. He asked her where she got her drugs from but she refused to answer. She got up to leave a couple of times and the vice-principal told her to sit down. The other teacher was sitting by the office door so she sat down as she did not think she could leave. The vice-principal threatened to call the police a number of times if she did not answer his questions. He said that she would spend the weekend in Pinegrove, meaning the Correctional Centre for Women. The accused was getting tired, she was scared that she would end up going to Pinegrove and she wanted to go home. She thought that the only way that she would get out of the vice-principal’s office and not end up in jail would be to tell him what he wanted to hear. She did not feel that she had any other options. As a result, she told the vice-principal that she was selling and where the drugs had come from. It was only then that he let her leave, but told her she was suspended from school for three days. He also kept her purse and its contents. The only thing he gave back to her before she left was her cell phone.

The female student was subsequently charged with possession of cannabis marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and further, that she had possession of hydromorphone contrary to s. 4(1) of the Controlled Drugs and Substances Act. The question on the voir dire was whether the statements the accused made to vice-principal in his office, in effect a confession, were admissible as evidence in the trial proper. These statements are governed by the confessions rule. This rule states that:

No statement made out of court by an accused to a person in authority can be admitted into evidence against him or her unless the prosecution shows to the satisfaction of the trial judge that this statement was made freely and voluntarily.

The Honourable Provincial Court Judge D.E. Labach said there was an evidentiary burden on the accused to show that there was a valid issue for consideration in that when the accused made the confession, she believed that the person to whom it was made was a person in authority. A person in authority is generally someone engaged in the arrest, detention, interrogation or prosecution of the accused. When one thinks of a person in authority, what immediately comes to mind is a police officer or Crown prosecutor. However, there is no catalogue of persons who are automatically considered “persons in authority” solely by virtue of their status. While these traditional examples will usually be considered persons in authority, so too will persons whom the confessor perceives to be an agent of the police or prosecuting authorities, allied with the state authorities or acting on behalf or in concert with the police or prosecuting authorities.

In this case, said the Judge, the accused had met the evidentiary burden. She testified that despite the fact that the vice-principal had already found the marihuana in her purse, she still had to go to his office where he questioned her behind closed doors for over an hour. Throughout the questioning, he was adamant that they were going to get to the bottom of this and that he needed to know if she was selling at school and who she got her drugs from. She tried to leave and he told her to sit down. She denied selling drugs at school more than once but he would not accept that answer. He made it clear to her that if she did not admit that she was selling and who she got her drugs from, he would call the police and she would spend the weekend in jail. He suggested it would go better for her with the police if she cooperated with him and later he made it clear to her that given the quantity of drugs she had, he was going to call the police and pass that information on to them. She was scared about going to jail for the weekend and felt that her only option to get out of the office was to tell him what he wanted to hear. This was some evidence that the accused believed the vice-principal was acting as an agent of the police or in concert with them sufficient to shift the burden to the Crown.

The Judge said, in this case, the vice-principal had found drugs and drug paraphernalia in the accused’s purse before he ordered her to his office for questioning. He had a basis to suspend her from school and to report the contraband to the police. He kept the purse, the drugs, and the drug paraphenalia. He did not have to do anything more than give the police the items he seized, provide a statement to them, and let the police investigate and lay the appropriate charges. Instead, he chose to question the accused further, so the only inference the court could draw was that the vice-principal was attempting to get information to give to the police to justify a more serious trafficking charge.

Accordingly, considering all of the evidence, the Judge concluded that the vice-principal was acting as a person in authority vis-a-vis the accused and the court was not satisfied that the confession made by the accused to the vice-principal was voluntarily made by her and the Judge was concerned that it was not reliable. As a result, the accused’s statements made to the vice-principal in his office were not admitted as evidence on the Charter voir dire or the trial proper.

 

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