r v. PATRICK, 2016 QCCQ 6675

R. c. Bernes 2016 QCCQ 6675 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-101356-142 DATE : July 15, 2016 ______________________________________________________________________ BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

PATRICK BERNES Defendant ______________________________________________________________________ DECISION ON MOTIONS FOR EXCLUSION OF EVIDENCE ( Sections 8 , 9 and 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] The defendant is seeking to exclude evidence of a blood sample and a hospital record obtained pursuant two judicial authorisations, alleging several breaches of his

section 8 and 9 Charter rights. For the reasons set out below, the applications are denied. [ 2 ] The facts leading to the police obtaining the defendant’s blood sample and hospital record were set out by the testimony of the arresting officer, Officer Ouellet, as well as factual admissions tendered by the parties. They can be briefly summarized as follows: [ 3 ] On October 5, 2013 at 8:58 a.m. Officer Ouellet was informed of a 911 call regarding a car swerving between lanes on Autoroute 40 E.

He was also told that the car repeatedly hit the cement walls on the off ramp from Autoroute 40 E. leading to Autoroute 25 N. As the officer proceeded to the area, he received further information that the car in question finally crashed into a cement wall, on the off-ramp, deploying the airbags. [ 4 ] Upon arriving at the scene at 9:15 am, assisted by Cst. Morin, Officer Ouellet noted that the front of the car was heavily damaged, with additional damage to both sides of the car, and the front right tire was flat.

The driver’s front airbag was deployed as well as the lateral airbag on the passenger side. [ 5 ] Officer Ouellet was informed by the first responders at the scene that the driver was unresponsive. He approached the driver’s side of the car and banged on the car to wake the driver, but there was no reaction. The driver’s head was leaning on the steering wheel and he appeared to be unconscious.

There were no visible injuries to the driver. [ 6 ] As Officer Ouellet reached in to take the driver’s arm and check his pulse, the driver- the defendant, Mr Bernes- suddenly awoke with a jolt (“il se réveille en sursaut”), He seemed panicked and confused. He was sweating profusely from his face, his eyes were wide open and his pupils were dilated.

Officer Ouellet describes him as being in an altered state (“dans un état second”). [ 7 ] Officer Ouellet asked Mr Bernes to undo his seatbelt and exit the vehicle but he simply stared at the officer, wide-eyed, without understanding what was asked of him, as if the police were not even there. The officer repeated this request several times. The defendant simply looked around without answering and did not comply. Although the officer had removed the keys from the ignition, the defendant attempted to put his car in drive as if he were to simply drive away.

The defendant continued to attempt to put the car in drive for about a minute. He placed his hands on the steering wheel and was making movements as if he was actually driving the car. [ 8 ] Officer Ouellet did not notice any odour of alcohol, but he did note the bizarre behaviour of the driver and the fact that he seemed to be an altered state. Officer Ouellet arrested him for impaired driving at 9:21 a.m. and informed him of his right to silence and right to counsel.

The defendant did not understand and asked "what's wrong?”. [ 9 ] As the defendant was unable to exit the vehicle himself, the officer received assistance from the firefighters and ambulance technicians at the scene. They removed the defendant from the car and still, he did not understand what was going on. [ 10 ] Once outside of the vehicle, the officer asked the defendant for his driver’s license.

The defendant began to search his pockets but then stopped and asked several times "what is it you asked me?” and “what do you need?” He was not able to take his wallet out of his pocket and finally the officer got it for him.

[ 11 ] Officer Ouellet accompanied the defendant in the ambulance to the Santa Cabrini hospital. He heard the ambulance technician ask the defendant whether he had any health issues, to which the defendant responded that he did not. [ 12 ] Once at the hospital, the officers remained with the defendant. They noticed that he was not able to answer the questions of the triage nurse and simply stared into space.

They were present when the doctor asked him if he had any particular health problems and heard the defendant answer that he did not. [ 13 ] Approximately one hour after their arrival at the hospital, the defendant jumped up from his bed with a completely different attitude. Speaking normally, he asked what he was doing there, not having any recollection of the accident. [ 14 ] Officer Ouellet once again placed the defendant under arrest for impaired driving and this time the defendant was able to understand.

The officers left the defendant at the hospital at 11:20 a.m. and informed him that he would receive a summons to appear. The next day, Officer Ouellet called the hospital to inquire as to whether blood samples were taken from the defendant.

He was told that they were, and asked that the hospital labarotory preserve them for one week. [ 15 ] Throughout the intervention, the defendant exhibited mood swings ranging from sleeping to an intense high, from being very calm, to exploding into a state of panic. [ 16 ] Officer Ouellet has been with the Sûreté du Québec for 7 years and estimates that he has dealt with approximately 50 impaired driving cases, and approximately 5 or 6 of them regarding impairment due to drugs. He attends accident scenes routinely.

According to his testimony, the symptoms he observed were not commensurate with a predictable or typical reaction of shock following a car accident: this was something different, which the officer attributed to the driver being impaired by drugs. He did not notice any evidence of alcohol impairment. [ 17 ] On October 8 2013, Officer Ouellet swore two ITOs containing the facts summarised above, requesting a production order for the defendant’s hospital record and a search warrant for the blood samples. Both judicial authorisations were granted on October 8 2013. [ 18 ] The questions at issue I.

The judicial authorisations: Are the ITOs tainted by information obtained unlawfully? 1. Did the police breach the defendant’s

section 8 right by obtaining information provided by the defendant to healthcare professionals? 2. Did the police breach the defendant’s

section 8 right by inquiring as to the existence of a blood sample? 3. In the affirmative, should certain sections be excised from the ITOs? And in the affirmative, are the ITOs sufficient without the excised portions? II. Breaches of sections 8 and 9 of the Charter :

Section 9: did the police unlawfully arrest and detain the defendant?

Section 8: did the police breach the defendant’s right to privacy when accompanying him to the emergency room? 3. In the affirmative on question 1 or 2, should the evidence (the blood sample and hospital record) be excluded pursuant to section 24(2) ? ANALYSIS I. The judicial authorisations [ 19 ] According to the Supreme Court of Canada in R. v. Kokesh [1] , evidence obtained during a search under warrant will be excluded where the information to obtain the warrant (ITO) is based on facts known to the police as a result of a Charter violation. However, as explained in R. v.

Grant [2] , where the information contains other facts in addition to those obtained in contravention of the Charter , a reviewing Court must consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant. “[In] this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event” [3] . [ 20 ] The defendant argues that the judicial authorisations (R-2 and R-3) were issued on a faulty basis and that once the unlawful sections of the ITOs are duly excised, the remaining information is insufficient to allow for a warrant to seize the blood samples in question and for production of a copy of the hospital record. 1.

Did the police breach the defendant’s

section 8 rights by obtaining information provided by the defendant to healthcare professionals ? [ 21 ] According to the defendant, the first category of improper content included in the ITOs (paragraphs 10 and 16 of R-2 and R-3), concerns answers given by the defendant to questions about his medical condition, overheard by the officer, first asked by the ambulance technician and later by the doctor at the hospital.

It will not be necessary to determine the appropriateness of these entries at this stage, as the Crown readily accepts that these two paragraphs may be excised, without influencing the sufficiency of the ITOs. The defendant agrees that the removal only of these two paragraphs would not affect the sufficiency of the ITOs. The appropriateness of the police officers’ presence during this medical questioning will be canvassed below, dealing with the issue of exclusion under 24(2), based in part on a

section 8 breach.

2. Did the police breach the defendant’s

section 8 right by inquiring as to the existence of a blood sample ? [ 22 ] The defendant submits that his

section 8 right to privacy was breached when the police officer called the hospital to inquire as to whether he had provided a blood sample. He asks that paragraphs 17 and 18 of the ITOs be excised to remove any reference to the blood samples. [ 23 ] Given the nature of the doctor-patient relationship and the type of information which is normally gathered in this context, any transfer of information from the hospital to the police without consent or judicial authorisation will generally tread on informational privacy.

The sanctity of privacy interests in the context of medical treatment is well entrenched in our law. Specifically regarding blood samples transferred form a hospital to the police, the Supreme Court of Canada in R. v.

Dyment [4] , in 1988, firmly established that providing the police with a vial of blood taken for medical purposes, in the absence of a warrant, was a breach of s. 8 of the Charter . [ 24 ] Later, in the case of Dersch [5] , where blood samples were obtained improperly by hospital doctors, despite the patient’s refusal to provide them, the subsequent seizure of those blood samples by police was found to be contrary to the Charter , leading to their exclusion from evidence.

Both Dyment and Dersch underscore the importance of maintaining the confidentiality of doctor-patient communications and the corollary that any personal information revealed in the context of a doctor-patient relationship carries a legitimate expectation of privacy under

section 8 of the Charter . [ 25 ] In the context of medical care, the Supreme Court cautions against a free exchange of information between physicians and hospitals and the police [6] , and Provincial legislation mandates a strict control over the exchange of such information [7] .

Although the information obtained here was indeed in the context of one of the most protected areas of confidentiality- the doctor/patient context- this does automatically operate to attach constitutional protection, without regard to the nature of the actual information sought and received. [ 26 ] The first question here is thus whether the information obtained by the police falls within the ambit of the protection of

section 8 of the Charter . Without a doubt, the results of the blood tests would garner Charter protection. Here, the impugned information is limited to the fact that a sample was taken. In Dersch , Mr. Justice Major expressly notes a distinction between “neutral medical information”, which must be contrasted with information which the patient would legitimately expect to remain private.

He writes: 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. [8] [ 27 ] A similar issue arose in R. v. Lunn [9] , where the accused was taken to the hospital for medical treatment following a serious collision. Blood samples were collected pursuant to routine hospital procedure.

The officer investigating the collision called the hospital to inquire if they were in possession of blood specimens from the accused, asking for these not to be destroyed. No information regarding the results of the testing were sought nor obtained during that phone call. In deciding that the warrant which relied on this information did not breach

section 8, the B.C. Court of Appeal stated: Here, of course, in speaking to Dr. Metcalf, the police officer was not obtaining something material in the nature of the blood sample which was held to be objectionable in Dyment . Rather, he was doing what Mr. Justice Lamer approved of, namely, speaking to the hospital technician in charge of the laboratory to learn whether or not the laboratory held a sample of the blood of the appellant. [ 28 ] The same reasoning is applied in R. v. Erickson [10] . In that case, the Alberta Court of Appeal confirmed that

section 8 was breached when the hospital informed the police of the blood–alcohol level found in the appellant’s blood sample taken for medical purposes. However, in allowing the evidence to be admitted pursuant to the 24(2) analysis, the Court noted that the sample was discoverable in any event since “nothing improper occurred when the doctor informed the constable only that a blood sample had been taken” [11] . From that properly obtained information, a warrant would have issued without a breach of the C harter , thus underscoring the distinction between disclosure of a test result, as opposed to disclosure of the existence of a blood sample. [ 29 ] In an

article discussing the aftermath of Dersch , in 1994, Renee Pomerance specifically addressed this issue in the following terms: "Thus, while not explicitly addressed in Dersch , it would appear that a disclosure as to the mere existence of medical samples will not run afoul of

section 8 of the Charter . Using the Dersch analysis, the existence of samples is a neutral fact which would not violate the patient’s right to informational privacy. This type of information does reveal details of the patient’s medical treatment. At the same time, it is relatively innocuous in character. Unlike the disclosure in Dersch , it would not, standing alone, furnish grounds for belief that an offence had been committed.

It confirms the existence of evidence, but does not speak to its evidentiary value. [12] [ 30 ] This analysis squares well with the purpose behind s. 8 of the Char ter in the context of informational privacy, as discussed R. v. Plant , where the Supreme Court of Canada signalled that Charter protection will attach to information deemed "personal and confidential": (...) in order for constitutional protection to be extended, the information seized must be of a "personal and confidential" nature.

In fostering the underlying values of dignity, integrity and autonomy, it is fitting 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.

This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [13] [ 31 ] The mere existence of a blood sample in a hospital record- which existence in any event can be presumed in the context of emergency care following a car accident- does not meet the standard of “personal and confidential” information. The mere fact that a blood sample was taken does not reveal anything whatsoever about the “lifestyle and personal choices” of a patient.

Had the police inquired as to the results of such testing, or even as to the nature of the tests performed (an HIV test, for example), the analysis would be fundamentally different.

3. In the affirmative, should certain sections be excised from the ITO and in the affirmative, is the ITO sufficient without the excised portions ? [ 32 ] As noted above, paragraphs 10 and 16 (answers to medical questions provided by the defendant) can be excised from the ITO without affecting the sufficiency of the authorizations, reasonable and probable grounds to believe that the offence of impaired driving had been committed, and that evidence of the driver’s blood could be found at the hospital laboratory.

Paragraphs 17 and 18 will not be excised as the information they contain was not obtained in violation of the Charter . II . Breaches of sections 8 and 9 of the Charter : [ 33 ] The defendant argues that breaches of his

section 8 and 9 rights under the Charter must lead to the exclusion of the evidence obtained (his hospital record and blood sample). Although there is no causal connection between these alleged breaches and the evidence obtained, he argues that the temporal connection [14] is sufficient to consider that any evidence obtained by the police in this matter is derivative evidence, tainted by Charter violations.

Section 9: did the police unlawfully arrest and detain the defendant ? [ 34 ] The defendant claims that his

section 9 right was breached when the officer arrested him for impaired driving on insufficient grounds. He contends that Officer Ouellet jumped to conclusions too quickly, without giving proper consideration to the fact that the same symptoms he observed on the scene of the accident were entirely consistent with the shock and/or confusion caused by the accident itself.

The defendant alleges that a reasonable person standing in the shoes of the police officer would not have found reasonable and probable grounds sufficient to arrest him for impaired driving. [ 35 ] It is well-established that a lawful arrest must be based on reasonable and probable grounds, requiring both an honest, subjective belief combined with objectively reasonable grounds for that belief [15] . The officer need not demonstrate a prima facie case for conviction.

The question is whether the totality of the evidence [16] available to the officer at the time he formed his belief supports an objective finding that he had reasonable grounds to believe that the defendant’s ability was impaired by drugs or alcohol [17] . [ 36 ] The grounds for arrest must be viewed in the context of the circumstances as they existed at the time of the arrest, based on the knowledge of the officer and his perception at that moment.

The grounds may be based in part on hearsay [18] . [ 37 ] At the time the officer proceeded to arrest the defendant, he believed the defendant was impaired by drugs, based the following elements: • Information from another driver about the defendant’s erratic driving and swerving between lanes [19] ; • The defendant's car crashing into the cement barrier with no other cars involved in the collision on a bright, dry day; • The bizarre behaviour the defendant, moving from a state of unconsciousness to suddenly waking up and trying to drive his car and leave the scene of the accident; • The defendant’s dilated pupils, and profuse sweating; • No evidence of alcohol consumption; • No apparent injury; • The defendant’s inability to comply with the officer’s demands to remove a seatbelt and exit the vehicle and his total lack of reaction to the officer’s demands. [ 38 ] As Officer Ouellet stated in cross- examination, he has been to the scene of many car accidents, but the reaction of the defendant in this case was something particularly different.

Indeed, his testimony describes singularly uncommon and strange behaviour. In determining whether the officer’s belief was objectively reasonable, the circumstances as a whole must be taken into consideration. Although taken in isolation certain individual factors may be consistent with a driver’s reaction post-collision, on the whole it was entirely reasonable for the police officer to have concluded that it was more likely than not that the driver’s ability to operate his vehicle was impaired by drugs. Mr Bernes’ right not to be arbitrarily detained was not breached.

Section 8: did the police breach the defendant’s right to be secure against unreasonable search or seizure when accompanying him to the emergency room and remaining with him at the hospital ?

[ 39 ] The defendant argues that his privacy right protected under

section 8 was breached when the officers kept a close watch on him and accompanied him to the emergency room, even overhearing his answers to questions posed by healthcare professionals. He refers specifically to the case of Snider [20] , where a

section 8 breach led to exclusion of blood samples obtained for medical purposes following a serious collision. [ 40 ] In Snide r, police officers accompanied the driver of one of the vehicles involved in a fatal crash to the emergency room. She was gravely injured and in critical condition. The officers believed she was going to die. There was no indication of impaired driving. Simply out of curiosity, the officers remained at her side for over four hours during which she underwent various emergency procedures, while unconscious.

The judge summarizes the officers’ involvement as follows: The officers infringed on the defendant’s privacy throughout the time they spent in the emergency room. Their bedside watch resulted in a long list of confidentiality breaches, including their presence during the CAT scan, the X-rays and the surgical stapling of the face. [21] [ 41 ] During their stay with Ms Snider in the emergency ward, the officers were informed by a nurse that the results of a blood test indicated a blood/alcohol level well over the legal limit. Judge Nadon found that

section 8 was breached as confidential information was unlawfully obtained by the police who remained in close proximity to the defendant throughout her stay in the emergency ward. The police were found to be overzealous, unduly curious and indifferent to the defendant’s privacy interests. [ 42 ] The facts in the present matter are completely different. Unlike the case of Snider , the police officers in this case had reasonable grounds to believe that the defendant was driving while impaired and indeed he was already under arrest when he arrived at the hospital.

The officers remained close by until the defendant suddenly “awoke” and was finally able to understand that he was arrested for impaired driving. The officers received no incriminating evidence due to their proximity to the defendant, although they did overhear his answers to two questions- one asked in the ambulance, the other at the hospital- both asking whether he had any medical problems. No private information was sought nor obtained by the police officers, who did not participate in any collection of evidence.

On these facts, no informational privacy was breached. [ 43 ] The officer’s mere at presence the hospital does not violate the defendant’s spatial privacy. Just as in the case of R. v. Lachapelle , his presence was “neither intrusive nor interfering, nor did it inhibit in any way, any medical attention [the defendant] needed or requested. By remaining a mere observer, [the officer] can not be said to have invaded his spatial privacy” [22] . There was thus no breach of the defendant’s

section 8 right. 3. Section 24(2) [ 44 ] Given the Court’s findings regarding the absence of any Charter breach, it is unnecessary to address the question of exclusion under 24 (2). Nevertheless, it may be noted that had there been a breach of

section 8 or 9 as alleged by the defendant, the analysis according to the Supreme Court of Canada in R. v. Grant [23] would not lead to the exclusion of evidence. The 3-part tests asks the court to consider 1. the seriousness of the breach (and ensure that Courts do not condone state misconduct); 2. the impact of the breach on the Charter -protected interest; and 3. society’s interest on the adjudication of the case on its merits. In this matter, the breaches, if any, were not serious: there is no evidence of police misunderstanding or flouting Charter rights.

Officer Ouellet acted in good faith, properly following procedure to obtain a warrant to seize blood samples without seeking any information about the defendant through the hospital staff. As to the impact on the defendant’s rights, it must be underscored that if any breach there was, it did not result in obtaining any evidence against the defendant. Finally, the evidence in question is reliable, material and non-conscriptive, without which the prosecution has no case. For these reasons, the analysis pursuant to Grant would not have lead to the exclusion of evidence.

FOR THESE REASONS: The motions to exclude evidence are dismissed. __________________________________ LORI RENÉE WEITZMAN, J.C.Q. M e Pierre-Olivier Bolduc Attorney for the DPCP M e Valentina Corsetti M e Philip Knerr Attorneys for the defendant Dates of hearings: June 22 and 23, 2016