Supreme Court Judgments

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R. v. Dersch, [1993] 3 S.C.R. 768

 

Wilfred Wayne Dersch                                                                      Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Dersch

 

File No.:  22483.

 

1993:  March 30; 1993:  October 21.

 


Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for british columbia

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Unreasonable search and seizure ‑‑ Blood sample taken by physicians at hospital without accused's consent ‑‑ Police obtaining results of blood alcohol test without a warrant ‑‑ Whether conduct of police violated accused's right to be secure against unreasonable search and seizure ‑‑ If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1 , 8 .

 

                   Constitutional law -- Charter of Rights  -- Admissibility of evidence ‑‑ Bringing administration of justice into disrepute -- Blood sample taken by physicians at hospital without accused's consent ‑‑ Police obtaining results of blood alcohol test in violation of accused's right to be secure against unreasonable search and seizure -- Whether evidence should be excluded ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Application ‑‑ Blood sample taken by physicians at hospital without accused's consent ‑‑ Whether physicians acting as agents of government ‑‑ Whether Charter applies ‑‑ Canadian Charter of Rights and Freedoms, s. 32 .

 

                   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.  This appeal is to determine whether the trial judge erred in ruling that evidence obtained from a blood sample taken without the accused's consent was admissible.

 

                   Held:  The appeal should be allowed.

 

                   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.

 

                   Per L'Heureux‑Dubé and Gonthier JJ.:  Major J.'s reasons were agreed with, subject to further comments on the exclusion of evidence through the application of s. 24(2)  of the Charter .  Three factors must be considered in determining whether evidence obtained in violation of s. 8  of the Charter  should be excluded pursuant to s. 24(2) :  the effect the admission would have on the fairness of the trial, the seriousness of the Charter  violation, and whether excluding the impugned evidence would cause greater disrepute to the administration of justice than admitting it.  As a result of the application of these principles, the impugned evidence should be excluded.  The evidence obtained here might have been discovered in a lawful way had the Charter  violation not occurred, since the police already had probable cause sufficient to obtain a search warrant.  As a result, the fairness of the trial is not necessarily adversely affected by its admission.  The violation of the accused's rights was of such a serious nature, however, as to tip the balance in favour of excluding the evidence.  Such exclusion would not bring the administration of justice into disrepute.  The police should have used the lawful means available to them to obtain the required information.  Further, exclusion of the impugned evidence does not eliminate all the evidence against the accused.

 

Cases Cited

 

By Major J.

 

                   Referred to:  Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; R. v. Pohoretsky, [1987] 1 S.C.R. 945; McInerney v. MacDonald, [1992] 2 S.C.R. 138; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Hebert, [1990] 2 S.C.R. 151.

 

By L'Heureux‑Dubé J.

 

                   Referred to:  R. v. Collins, [1987] 1 S.C.R. 265; R. v. Meddoui (1990), 61 C.C.C. (3d) 345; R. v. Brydges,  [1990] 1 S.C.R. 190; R. v. Brick (1989), 19 M.V.R. (2d) 158; R. v. Mazurek (1989), 15 M.V.R. (2d) 80; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Dyment, [1988] 2 S.C.R. 417.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 24 , 32(1) .

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 254  [rep. & sub. c. 27 (1st Supp.), s. 36 ], 256 [idem.], 686(1)(b)(iii).

 

Hospital Act Regulations, B.C. Reg. 289/73, s. 3 [am. B.C. Reg. 89/85].

 

Authors Cited

 

Canadian Medical Association.  Code of Ethics.

 

Watson, Jack.  "Blood Samples:  Are They Real or Not?" (1990), 2 J.M.V.L. 173.

 

                   APPEAL from a judgment of the British Columbia Court of Appeal (1991), 65 C.C.C. (3d) 252, 35 M.V.R. (2d) 86, affirming the accused's conviction by Dohm J. on charges of criminal negligence causing death, criminal negligence causing bodily harm, impaired care and control causing death and impaired care and control causing bodily harm.  Appeal allowed.

 

                   Howard Rubin and Kenneth S. Westlake, for the appellant.

 

                   Alexander Budlovsky, for the respondent.

 

//Major J.//

 

                   The judgment of Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

 

                   Major J. -- The appellant was convicted by a jury on one count each of criminal negligence causing death, criminal negligence causing bodily harm, having the care and control of a motor vehicle while impaired by alcohol or drugs and thereby causing death, and having the care and control of a motor vehicle while impaired by alcohol or drugs and thereby causing bodily harm.  An appeal to the British Columbia Court of Appeal was dismissed:  (1991), 65 C.C.C. (3d) 252, 35 M.V.R. (2d) 86.  The issue raised by this appeal is whether the trial judge erred

 

 

in ruling that evidence of blood alcohol test results from a blood sample taken without the appellant's consent was admissible against him.

 

I.Facts

 

                   A motor vehicle accident occurred at approximately 7:30 a.m. on October 7, 1987, on a four‑lane undivided highway near Duncan, British Columbia.  The vehicle operated by the appellant crossed the centre dividing line and collided head‑on with another vehicle.  The driver of the other vehicle was killed.  Three other persons, including the appellant, were injured.

 

                   A police officer at the accident scene observed a smell of alcohol from the appellant and noticed that the appellant's eyes were glassy and bloodshot.  The appellant was lapsing in and out of consciousness, and accompanied by a police officer was taken to the Cowichan District Hospital in Duncan.

 

                   At 8:40 a.m. he was examined by Dr. Gilbert, the appellant's primary care physician at the hospital.  This doctor attempted to insert an intravenous line into the appellant's arm, but the appellant objected in strong language and refused to have a blood sample taken under any circumstances.  Dr. Gilbert requested the assistance of Dr. Leckie (a surgeon present in the emergency department) in obtaining a blood sample.  The appellant was unconscious and unresponsive to anything except pain when Dr. Leckie examined him.  Dr. Leckie inserted an intravenous line and took a blood sample, shortly after 9:00 a.m.

 

                   The blood sample was taken for medical reasons.  One vial was used for a blood alcohol test.  Both doctors testified that this test was necessary to determine the extent to which the appellant's symptoms were attributable to intoxication rather than a suspected serious closed head injury.  The appellant's blood alcohol level was a factor to consider in his medication.

 

                   At 9:25 a.m. the police officer who had accompanied the appellant to the hospital asked him to provide a blood sample.  The appellant refused.

 

                   About 20 minutes later, Dr. Gilbert asked the appellant if he could take a second blood sample.  The appellant consented after Dr. Gilbert told him the police officer had left the hospital and the sample would be used for medical purposes.  The second sample was not tested for blood alcohol content.

 

                   In response to a written request by police, Dr. Gilbert prepared a medical report on October 30, 1987.  The report included the results of the blood alcohol test from the first blood sample and a diagnosis that the appellant was intoxicated at the time of being treated in the emergency department.  On November 27, 1987, a search warrant was issued for the blood sample taken by Dr. Leckie.

 

                   The doctors did not have the appellant's consent to release information to the police.  According to the testimony of the doctors at trial, they were unaware that they could not give the police the results of blood samples taken against the specific instructions of the appellant.

 

                   An expert witness testified that on the basis of the test results from the first blood sample, at the time of the accident the appellant had a blood alcohol level of between 178 and 193 milligrams of alcohol in 100 millilitres of blood.

 

                   At the appellant's trial, a voir dire was held to determine the admissibility of the first blood sample and of the blood alcohol test results from that sample.  The evidence was ruled admissible.  The appellant appealed to the Court of Appeal for British Columbia on the ground that the trial judge had erred.   The Court of Appeal dismissed the appeal.

 

II.Relevant Provisions of the Canadian Charter of Rights and Freedoms 

 

 

                   1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

                                                                   . . .

 

                   7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

                   8.  Everyone has the right to be secure against unreasonable search or seizure.

 

                                                                   . . .

 

                   24. (1)  Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

                   (2)  Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

                                                                   . . .

 

                   32. (1)  This Charter applies

 

(a)  to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

 

(b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

 

III.Judgments in the Courts Below

 

Voir Dire at Trial

 

                   The trial judge found the first blood sample was taken without the appellant's consent.  However, he accepted the doctors' testimony that they were acting purely for medical purposes in taking the blood sample, and on that basis held ss. 7  and 8  of the Charter  had no application.  The trial judge was also of the view that there was no legal privilege in the test results.  He therefore ruled the blood sample and blood alcohol test results were admissible.

 

British Columbia Court of Appeal (1991), 65 C.C.C. (3d) 252

 

                   Hinkson J.A. rejected the argument that the actions of the doctors were subject to review under the Charter , finding that neither the hospital nor the doctors were acting as agents of the state within the meaning of s. 32  of the Charter .  It was also his view that the actions of the police had not violated the appellant's rights under either s. 7  or s. 8  of the Charter .

 

                   Hutcheon J.A., with whom Hinds J.A. concurred, agreed with Hinkson J.A.'s conclusion that the hospital and the doctors "were not agents of the state for the purposes of the application of the Charter " (p. 268).  However, Hutcheon J.A. was of the view that the actions of the police in obtaining the medical report violated the appellant's rights under s. 8  of the Charter .  He went on to conclude that on the discoverability principle, the admission into evidence of the results of the blood alcohol test would not bring the administration of justice into disrepute, and therefore the evidence was admissible upon application of s. 24(2) .

 

IV.Points in Issue

 

The Conduct of the Doctors and the Hospital

 

                   In Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, the majority of this Court concluded, inter alia, that the Vancouver General Hospital was not part of government for the purposes of s. 32  of the Charter  and its actions were not generally subject to Charter  scrutiny.  The same reasoning is applicable here to the Cowichan District Hospital.

 

                   Also in Stoffman v. Vancouver General Hospital, La Forest J. stated there could be circumstances in which the Charter  may apply "to a specific act of an entity which is not generally bound by the Charter " (p. 516).  It was submitted by the appellant that s. 3 of the Hospital Act Regulations, B.C. Reg. 289/73, as amended by B.C. Reg. 89/85, has the effect of preventing a patient from leaving a hospital without the approval of the hospital, thereby rendering the emergency treatment of the appellant by the Cowichan District Hospital conduct of government for the purposes of the Charter .  I disagree.  Section 3 of the Hospital Act Regulations, by its plain meaning, simply protects hospital patients from being improperly discharged.  It does not attempt to hold them captive.

 

                   As the Cowichan District Hospital is not part of government for the purposes of the Charter , and is not acting as an agent of government in providing emergency health services, it follows that participation in the emergency treatment of the appellant did not in itself render Dr. Leckie and/or Dr. Gilbert agents of government for the purposes of the Charter .

 

                   The appellant submits that the actions of Dr. Leckie and Dr. Gilbert in taking the first blood sample without the appellant's consent are nevertheless subject to the Charter .

 

                   There are some types of circumstances in which a doctor clearly acts as an agent of government in taking a blood sample from a patient.  A doctor who takes a blood sample illegally at the request of police is acting as an agent of government and his or her actions are subject to the Charter R. v. Pohoretsky, [1987] 1 S.C.R. 945.  Similarly, a doctor involved in taking a blood sample pursuant to s. 254  or s. 256  of the Criminal Code, R.S.C., 1985, c. C‑46 , would be acting as an agent of government, as mandated by statute, and the doctor's actions would be subject to Charter  scrutiny.

 

                   In this case the first blood sample was not taken pursuant to s. 254  or s. 256  of the Criminal Code , nor at the request of the police.  The trial judge accepted the evidence of the doctors that the blood sample was taken solely for medical purposes.  Therefore, Dr. Gilbert and Dr. Leckie were not acting as agents of government for the purposes of the Charter  in taking the first blood sample from the appellant.

 

                   However, while the conduct of Dr. Gilbert and Dr. Leckie in the circumstances of this case was not in violation of the appellant's Charter  rights, it is clear that some of their conduct was wrong.  The first blood sample taken despite the appellant's unequivocal instruction to the contrary was improper, and is most material in the disposition of this appeal.  The provision to the police by Dr. Gilbert of specific medical information about the appellant without his consent violated Dr. Gilbert's common law duty of confidentiality to the appellant:  McInerney v. MacDonald, [1992] 2 S.C.R. 138, at pp. 149‑50.

 

                   While there may be instances of doctors and hospitals releasing neutral medical information, such as the presence of the patient in the hospital, in this case the appellant had a reasonable expectation that the specific medical information revealed by Dr. Gilbert, including the blood alcohol test results, would be kept confidential by the doctors and the hospital.

 

The Conduct of the Police

 

                   The appellant submits that the conduct of the police in obtaining the specific medical information from Dr. Gilbert violated the appellant's rights under both s. 7  and s. 8  of the Charter .  Since I have concluded that the appellant's rights under s. 8  of the Charter  were violated by the conduct of the police, it is not necessary to determine whether there was also a violation of the appellant's rights under s. 7 .

 

                   As I have noted above, the appellant had a reasonable expectation of privacy in respect of the information revealed to the police by Dr. Gilbert.  The obtaining of that information by the police in the circumstances of this case is analogous to a search or a seizure within the meaning of s. 8  of the Charter .

 

                   The information at issue was obtained from Dr. Gilbert without a search warrant, rendering the search by the police prima facie unreasonable:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Dyment, [1988] 2 S.C.R. 417.  The respondent 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/or 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 search warrant.

 

Section 1  of the Charter 

 

                   Since the respondent has failed to demonstrate that there is any basis under statute or the common law for the conduct of the police in this appeal, that conduct cannot be said to be "prescribed by law" within the meaning of s. 1 R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 650‑51; R. v. Hebert, [1990] 2 S.C.R. 151, at p. 187, per McLachlin J.

 

Section 24(2)  of the Charter 

 

                   The blood sample and blood alcohol test results were the product of improper conduct by the appellant's doctors.  While this conduct is not directly subject to the Charter , in the context of a subsequent Charter  breach by police, the doctors' conduct becomes relevant in considering the effects of admitting the evidence.

 

                   The net result of the Charter  violation by police, in the particular circumstances of this case, was to take advantage of the improper conduct by his doctors in taking the blood sample contrary to the specific instructions of the patient.  When this factor is considered together with the seriousness of the Charter  violation by police and the importance of guarding against a free exchange of information between health care professionals and police, in my view the impugned evidence should be excluded by application of s. 24(2)  of the Charter .

 

V.Disposition of This Appeal

 

                   In the absence of the evidence of the appellant's blood alcohol level, there is no evidence sufficient to sustain convictions on the charges of causing death and bodily harm by having the care and control of a motor vehicle while impaired by alcohol or a drug ("the care and control charges").  Those charges are dismissed.

 

                   While there remains evidence to support charges of causing death and bodily harm by criminal negligence ("the criminal negligence charges"), this is not an appropriate case in which to apply the curative provision of s. 686(1) (b)(iii) of the Criminal Code .  In the result, a new trial is directed on the criminal negligence charges.

 

VI.Conclusion

 

                   I would allow the appeal, direct that acquittals be entered on the care and control charges, and order a new trial on the criminal negligence charges.

 

//L'Heureux-Dubé J.//

 

                   The following are the reasons delivered by

 

                   L'Heureux-Dubé J. -- I have read the reasons of my colleague, Justice Major, and concur in the result.  I do, however, find that the case at hand raises particular points, with regard to the exclusion of evidence through the application of s. 24(2)  of the Canadian Charter of Rights and Freedoms , that necessitate further comment, particularly since they were raised and discussed at length before us.

 

                   This Court, in R. v. Collins, [1987] 1 S.C.R. 265, has set out three factors which must be considered in the determination of whether evidence obtained in violation of s. 8  should be excluded pursuant to s. 24(2) .  These three factors include consideration of the effect the admission would have on the fairness of the trial, the seriousness of the Charter  violation and whether excluding the evidence would cause greater disrepute to the administration of justice than the admission of the impugned evidence.

 

                   In the case at hand, the preliminary question one must ask is whether the evidence obtained would have been discovered had the Charter  violation not occurred.  The difficulty with which one is faced when attempting to apply the principles of Collins to the facts at hand, is that one must canvass the initial questions of discoverability and classification of evidence prior to any further examination.  The appellant argues that, since this matter was not properly canvassed in the lower courts, this is a question to be determined at trial and not by this Court.  In my view, there are two alternative responses to the appellant's argument.  First, one must examine if, in fact, the Court does have sufficient evidence to determine whether the impugned blood sample and test results were discoverable.  Secondly, other grounds of investigation under the second and third factors set out in Collins may make it unnecessary to arrive at a determinative conclusion on the first arm of the test.

 

                   Pursuant to Collins, supra, the admission of evidence that would have been unlikely to have been discovered, had the Charter  violation not occurred, severely affects the fairness of the trial.  On the other hand, if the evidence had been discoverable regardless of the Charter  violation, the fairness of the trial will not be influenced.  The Alberta Court of Appeal expressed such a view in R. v. Meddoui (1990), 61 C.C.C. (3d) 345 with respect to real pre-existing evidence.  However, in R. v. Brydges,  [1990] 1 S.C.R. 190, this Court held that the admission of evidence being of a self-incriminatory nature would normally render the trial unfair, regardless of discoverability.   Thus, one must examine whether the blood samples and the test results in this case constitute real or self-incriminatory evidence.   In this regard, I find the analysis by Jack Watson, in his article "Blood Samples:  Are They Real or Not?" (1990), 2 J.M.V.L. 173, very valuable.  He writes, at p. 174:

 

It is not correct ... automatically to characterize blood samples as always "self-incriminatory evidence" merely because they formed part of the subject at one time, nor is it correct to automatically characterize them as always "real evidence" because they are actually handled in a physical sense and treated like other real evidence at the court stages.

 

                   The question of "conscription" by an agency of the state is ... key to the assessment of whether the blood samples in a given case will be considered real or self-incriminatory evidence.

 

                   "Conscription" is the term compendiously describing the process which, contrary to adjudicative fairness, involves an agent of the state, without lawful authority meeting Constitutional prerequisites, extracting from a detainee or a "person charged" evidence which owes its existence to the conscription process.  In effect, it is a situation where the detainee or "person charged" is being compelled to self-incriminate.

 

                   If blood has separated from a detainee or "person charged" into seizable samples without the involvement of an agent of the state, then the samples do not owe their existence to the agent of the state, and cannot rationally be said to have been conscripted by that agent nor, hence, by the state itself. . . .

 

                    In R. v. Mazurek (1989), 15 M.V.R. (2d) 80 (Ont. Dist. Ct.), the court reached the conclusion that, with respect to blood-alcohol test from a blood sample taken for medical purposes prior to any Charter  violation, "[t]he blood-alcohol test documents ... constitute real evidence which existed irrespective of the Charter  right violation.  That evidence would not affect the fairness of the trial on the sole ground that it was improperly obtained" (p. 92).  A similar finding was made in R. v. Brick (1989), 19 M.V.R. (2d) 158 (Alta. C.A.).  Further, this Court in R. v. Mellenthin, [1992] 3 S.C.R. 615, determined that, regardless of the nature of the evidence, real or self-incriminatory, if the impugned evidence could not have been discovered had the Charter  violation not occurred, the fairness of the trial is affected and the evidence ought to be excluded pursuant to s. 24(2) .  Therefore, in my opinion, regardless of the classification one gives the impugned evidence in this case, the question of discoverability must be tackled.

 

                   In this regard, the respondent argues that the appellant's blood sample, which was subsequently tested for blood alcohol content, was discoverable on the basis that the police officer had reasonable and probable grounds upon which to obtain a search warrant.  Information received upon request from the attending physician indicated that a blood sample had been taken; as well the officer had reason to believe that the appellant had consumed alcohol prior to the incident.  Secondly, the blood sample and the results of the tests constituted real discoverable evidence.  The evidence existed prior to the Charter  violation and was not created by the actions of the police.  It is on this basis that the British Columbia Court of Appeal determined that the application of the principle of "discoverability", as in R. v. Meddoui, supra, resulted in the admission of evidence, which, in their view, would have been discovered without the breach of the Charter  and, as such, the admission of this evidence did not bring the administration of justice into disrepute.

 

                   The appellant submits, however, that the Court of Appeal erred in failing to recognize that the blood samples and the print-out of the test results of the blood samples were taken improperly.   Referring to R. v. Meddoui, supra, the appellant argues that, if the "discoverability test" is to be valid, this Court should focus on whether or not the information was discoverable through a lawful means.  The appellant further submits that the information provided by the doctor in breach of his duty renders the evidence not discoverable because the improperly obtained information was the basis for the search warrant eventually obtained.

 

                   I find, as did Major J., that the conduct of the doctor must be examined in light of the subsequent police actions.  However, in my view, the evidence may have been discovered in a lawful way and in the absence of a Charter  violation, since the police already had probable cause sufficient to obtain a search warrant.  As a result, the fairness of the trial is not necessarily adversely affected by its admission.  In any event, it is my opinion that the discoverability of the evidence in the case at hand is not determinative of the issues in this appeal.  Both the seriousness of the Charter  violation and whether excluding the evidence would cause greater disrepute to the administration of justice than its admission have to be considered.  These constitute the real test in the circumstances of the case and are conclusive of the issues in this appeal.  La Forest J., writing for the majority in R. v. Dyment, [1988] 2 S.C.R. 417, in which a blood sample was obtained improperly, discussed the seriousness of this type of Charter  violation (at p. 439):

 

... the sense of privacy transcends the physical.  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 hospitals to the police, were allowed.

 

                   When examining a Charter  violation such as the one here in issue, the above analysis is, in my view, entirely applicable.  Although the respondent argues that both the police and the doctors acted in good faith and, therefore, if there was a breach of the appellant's rights, it was not a serious one, I find, as did La Forest J. in Dyment, supra, that the Charter  violation was, in fact, very serious.  The appellant's right to control the functions of his own body was breached and for that reason, the confidence in one's ability to candidly exchange information with a medical professional was lost.  This cannot be treated lightly, whether or not all was done in good faith, a fact that I do not doubt for a moment.  The importance of maintaining confidentiality in the doctor-patient relationship is a longstanding goal which is, as expanded upon in Dyment, supra, at p. 433, integrated into the Canadian Medical Association's Code of Ethics.  In fact, in our modern informational society, where intimate details of one's life may be available through computerized information accessible to many more persons than those initially entrusted with the knowledge, the security that information will be kept in privacy may be even more significant than one could have historically imagined.

 

                   The last question which arises is what effect the exclusion of the evidence has on the administration of justice.  In this regard, the appellant argues that the exclusion of the impugned evidence does not eliminate all the evidence against him and this, as a result, minimizes any effect the exclusion of the impugned evidence may have on the administration of justice.  The admission of the evidence, on the other hand, it is argued, may have a drastic effect on the future frank discussion and interchange between patients and doctors, as discussed above.  With regard to this final arm of the Collins test, La Forest J., in Dyment, supra, held that violation of personal privacy of such a nature warranted the exclusion of evidence and, in so doing, referred to the following passage of the trial judge's reasons (at p. 440):

 

... I find that the manner in which the sample was here obtained would bring the administration of justice into disrepute.  I have reached this conclusion because I consider the breach of [the accused's] Charter  rights to have been flagrant.  Time was not a factor in this case and there were other investigative techniques that could have been used to obtain the evidence.

 

The respondent counters these claims submitting that to exclude the evidence would bring the administration of justice into disrepute considering the seriousness of the offences involved and the prevalence of the particular offence in question, and, further, considering that the police had reasonable and probable grounds to believe that the offences had been committed.  Although I agree with the respondent that the offence committed by the appellant is of a very serious nature indeed, in my view, the violation of the appellant's rights was of such a serious nature as to tip the balance in favour of the exclusion of the evidence and such exclusion would not bring the administration of justice into disrepute.  My conclusion is based on two points.  First, the police, having had a lawful means to obtain the required information, should have used such means and, secondly, the exclusion of the impugned evidence does not eliminate all the evidence against the appellant.

 

                   As a result of the application of the principles set out in Collins, supra, I agree with my colleague that, in this case, the impugned evidence should be excluded under s. 24(2)  of the Charter .  In the result, I would dispose of this appeal as suggested by my colleague.

 

//Gonthier J.//

 

                   The following are the reasons delivered by

 

                   Gonthier J. -- I agree with Justice Major as well as with the further comments of Justice L'Heureux-Dubé on the exclusion of evidence through the application of s. 24(2)  of the Canadian Charter of Rights and Freedoms .

 

                   Appeal allowed.

 

                   Solicitor for the appellant:  Kenneth S. Westlake, Vancouver.

 

                   Solicitor for the respondent:  The Attorney General for British Columbia, Vancouver.

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