R. v. Murphy, 2022 NLSC 2

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Murphy , 2022 NLSC 2 Date : January 10, 2022 Docket : 202006G0117 Her Majesty The Queen v. NaTHAN MURPHY Before: Justice Peter A. O’Flaherty Reasons for Judgment Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: October 18-20, 2021 Date of Judgment: January 10, 2022

Summary: The Applicant was charged with impaired operation causing bodily harm and dangerous operation causing bodily harm following a single vehicle accident on July 13, 2019. On a Pre-trial Application under s. 24(2) of the Canadian Charter of Rights and Freedoms the Applicant claimed his rights under ss. 10(

b) and 8 were breached and sought an Order for the exclusion of evidence. Held: The Court found there was no Charter detention of the Applicant under s. 10, and therefore no breach of s. 10(b). The Court found there was a breach of s. 8 based on the police officer’s conduct of a search during a medical examination of the Applicant. The Court found that the Applicant’s blood sample was not seized by the police in a manner that violated s. 8. Under s. 24(2), the Court excluded the verbal utterances of the Applicant to the doctor during a medical examination. The Application was otherwise dismissed.

Appearances: Alison J. Manning Appearing on behalf of the Crown Glen W. Picco, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Grant, 2009 SCC 32; R. v. Suberu, 2009 SCC 33; R. v. Villeneuve (2021), 72 M.V.R. (7th) 107, 481C.R.R. (2d) 246 (N.L. Prov. Ct.); R. v. Powell (2017), 8 M.V.R. (7th) 327, 377 C.R.R. (2d) 255 (N.L. Prov. Ct.); R. v. Jackson, 2019NWTTC 6; R. v. LaChappelle, 2007 ONCA 655; R. v. Culotta, 2018 ONCA 665; R. v. Butler, 2018 SKQB 275; R. v. MacMillan, 2013ONCA 109; Canada (Director of Investigation & Research, Combines Investigation Branch) v.

Southam Inc., (SCC),[1984] 2 S.C.R. 145; R. v. Evans (1994), (BC CA), 24 C.R.R. (2d) 94, 1994 CarswellBC 1111 (C.A); R. v. Dyment, (SCC), [1988] 2 S.C.R. 417; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Taylor, 2013 ABCA 342;R. v. Taylor, 2014 SCC 50; R. v. Cartwright, 2015 NBCA 42; R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20; R. v.Pohoretsky, (SCC), [1987] 1 S.C.R. 945; R. v. Dersch, (SCC), [1993] 3 S.C.R. 768; R. v. Pike, 2010NLTD 97; R. v. Gettins (2003), (ON CA), 46 M.V.R. (4th) 34, 113 C.R.R. (2d) 351 (Ont. C.A.); R. v. Poisson, 2019ONSC 1674; R. v.

Tessier (1990), (ON CA), 23 M.V.R. (2d) 165, 49 C.R.R. 191 (Ont. C.A.); R. v. O’Brien, [2005]O.J. No. 6293, 2005 CarswellOnt 10009 (Sup. Ct.); R. v. Garifoli, (SCC), [1990] 2 S.C.R. 1421 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, Personal Health Information Act, S.N.L. 2008, c.P-7.01 REASONS FOR JUDGMENT O'FLAHERTY, J.: INTRODUCTION [1] In the early hours of Saturday, July 13, 2019, a vehicle driven by the Applicant, Mr. Nathan Murphy, left the roadway near anarea known as Drake’s Cove in Marystown, Newfoundland and Labrador (NL). Members of the police, fire department and EmergencyMedical Services (EMS) responded to the scene.

Four of the five occupants of the vehicle were injured, including the Applicant, andthey were transported by ambulance to the emergency department of the Burin Peninsula Health Care Center in Burin, NL (the“hospital”) to receive medical treatment. [2] Suspecting that the Applicant was the driver of the vehicle in the accident, and he was possibly impaired, a police officer rodealong in the ambulance transporting the Applicant to the hospital. The police officer continued her investigation by entering a treatmentroom in the hospital and observing while medical examinations were conducted by a nurse and a doctor.

The police officer later returnedto the treatment room while samples of the Applicant’s blood were drawn by a laboratory technician for blood testing ordered by thedoctor, and requested that the laboratory technician secure a sample of the Applicant’s blood until a warrant was obtained. [3] On July 16, 2019, the Royal Canadian Mounted Police (RCMP) obtained a Warrant to Search under s. 487 of the CriminalCode, R.S.C. 1985, c. C-46, (the “Code”) to seize the container of the Applicant’s blood stored by the hospital, and the medical recordsrelating to the Applicant’s treatment on July 13-14, 2019 (the “Warrant”).

On September 19, 2019, the Applicant was charged withimpaired operation causing bodily harm and dangerous operation causing bodily harm. [4] Mr. Murphy applied under s. 24(2) of the Canadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982,being

Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, (the “Charter”), to exclude evidence obtained by the police in breach ofthe Charter. He raised three Charter violations based on the sequence of events on July 13, 2019. First, the Applicant argues a detentionresulted when the police officer entered the ambulance, and that his right to counsel under s. 10(

b) of the Charter was breached becausethe officer did not read him his Charter rights. Secondly, the Applicant argues that s. 8 was breached when hospital staff permitted thepolice officer to observe his treatment in the hospital and gather evidence.

Thirdly, the Applicant argues that when his blood was drawnby the hospital staff for medical purposes and secured for the police it was seized in a manner that breached s. 8. [5] The Applicant seeks an Order under s. 24(2) of the Charter excluding the following evidence he alleges was obtained in amanner that infringed or denied his rights or freedoms: the verbal utterances he made to a paramedic and the officer’s observations of hisimpairment in the ambulance (the “ambulance evidence”); the verbal utterances he made to a physician during an examination in thetreatment room (the “treatment room evidence”); the sample of his blood and the medical records of his treatment in the hospital on July13–14, 2019 (the “hospital evidence”); and, the certificate of analysis of his blood sample (the “certificate”). [6] The Applicant argues for the exclusion of the hospital evidence and certificate on the basis of the unreasonable seizure of hisblood under s. 8.

He also argues that if the ambulance evidence and treatment room evidence is excised from the Information to Obtain(the “ITO”), there would have been insufficient reliable information for the authorizing Justice to issue the Warrant, resulting in the

authorization of an unreasonable search and seizure of the hospital evidence on July 16, 2019, and the hospital evidence and the certificate of analysis must be excluded on that basis. [ 7 ] A voir dire with respect to the Charter issues was held on October 18, 19 and 20, 2021.

The Applicant must establish that his rights under s.10 and/or s.8 of the Charter were violated by the police, and that the evidence obtained as a result of any breach of his Charter rights should be excluded under s. 24(2) of the Charter . [ 8 ] I have decided that the Applicant has not established that he was detained at any time on July 13, 2019. This means there was no breach of the Applicant’s rights under s. 10 (

b) of the Charter , and s. 24(2) has no application. [ 9 ] I have decided that the Applicant has established that his reasonable expectation of privacy was interfered with by the police officer’s search while the Applicant was being examined by a doctor behind a curtained off area of the treatment room, which amounted to an unreasonable search under s. 8 of the Charter . [ 10 ] I have decided that the Applicant has not established that when his blood was drawn by the hospital staff for medical purposes and secured for the police it was seized in a manner that breached s. 8 of the Charter .

It follows that no breach of the Applicant’s rights under s. 8 of the Charter resulted and s. 24(2) has no application. [ 11 ] On the s. 8 breach that has been established I am ordering exclusion of the treatment room evidence obtained during the unreasonable search under s. 24(2) only. I am satisfied that the police conduct was not particularly egregious, it had a significant impact on the Applicant’s privacy interests, and the relevance and reliability evidence of the treatment room evidence is low.

I have decided that the admission of the treatment room evidence at the trial would in all the circumstances bring the long-term administration of justice into disrepute.

As to the hospital evidence and the certificate, which would have existed regardless of what happened in the treatment room, I have decided that to order the exclusion of highly relevant and reliable evidence of the serious offences as a result of a Charter breach resulting from police conduct which was not particularly egregious, and thereby gut the prosecution case, would bring the long-term administration of justice into disrepute. [ 12 ] On the Applicant’s alternative argument for exclusion of the hospital evidence and certificate, I have decided that when the treatment room evidence is removed from consideration the authorizing Justice could still have validly issued the Warrant based on the remaining information he was provided with under oath or affirmation. [ 13 ] I am therefore ordering only the exclusion of the treatment room evidence at trial under s. 24(2) of the Charter . [ 14 ] The application is otherwise dismissed.

THE EVIDENCE [ 15 ] In light of the issues raised in this Application, I will outline the evidence about the encounter between the Applicant and the police officer on July 13, 2019, in some detail. The key timeframe was between 3:00 a.m., when the officer arrived at the accident scene, and 4:28 a.m., when the Applicant’s blood was drawn and the laboratory technician and the officer both left the Applicant’s hospital room. [ 16 ] The Crown called Constable Ashley Charlebois, Dr. Erin Fitzpatrick, Mr. Rene Delisle and Ms. Sandra Murphy on the voir dire . Dr.

Paula Slaney and Constable Kylea Greentree were also called but their testimony overlapped with other Crown testimony I heard and is not referenced. [ 17 ] Constable Charlebois was the first RCMP member at the scene of the accident. She was involved in the police investigation in both the ambulance and the hospital. She arrived in the area of Drake’s Cove at about 3:00 a.m. and observed a vehicle down over the bank on the beach tipped up on its roof and saw an injured woman on the bank. She recognized Mr. Murphy from meeting him at the hospital where he worked and saw him near the overturned vehicle.

She assisted the injured woman and helped EMS place the woman on a back board, and put her in the ambulance. By that point, Mr. Murphy had already been placed in the same ambulance. [ 18 ] She said while outside the ambulance she contacted communications and determined that Mr. Murphy was the registered owner of the overturned vehicle and Corporal McGrath told her that he understood Mr. Murphy was the driver and that he may have been drinking. She therefore entered the ambulance with Mr. Murphy and the injured woman at about 3:10 a.m.

She immediately smelled a strong odor of alcohol and marijuana. [ 19 ] While in the ambulance she heard Mr. Murphy tell the paramedic he had been driving the vehicle, he had consumed alcohol, and that his marijuana was in the trunk of the car. Her notes made at the time recorded that Mr. Murphy told the paramedic that he had consumed three beer. [ 20 ] Constable Charlebois said she asked the attendants not to use any alcohol swabs while treating Mr. Murphy, and her notes indicated this happened when she entered the ambulance. When she was in the ambulance she detected a smell of alcohol coming from Mr. Murphy.

She testified that Mr. Murphy was going “in and out” of consciousness at one point on the way to the hospital. She said she did not speak to Mr. Murphy in the ambulance or question him. [ 21 ] The ambulance arrived at the hospital at about 3:20 a.m., and it was met at the entrance door by Audrey Murphy, a nurse, who is Mr. Murphy’s mother. Mr. Murphy told his mother that he was driving the vehicle in the accident. Mr. Murphy and the injured woman were both brought into the emergency department.

Constable Charlebois testified she followed the Applicant from the ambulance and she entered the treatment room to keep continuity of the Applicant and the room. She was present when Dr. Fitzpatrick came in to assess Mr. Murphy. While the doctor was examining Mr. Murphy, which on the evidence occurred behind a privacy curtain, she heard him describe to Dr. Fitzpatrick hitting a patch of gravel and losing control of his motor vehicle before the accident. The officer said she did not speak with Mr. Murphy in the treatment room and no comment was made to her about her presence.

[ 22 ] At 3:42 a.m., after the doctor’s examination, she spoke with Dr. Fitzpatrick and asked whether Mr. Murphy would be able to understand a blood demand. Dr. Fitzpatrick told her the Applicant would not be able to understand the blood demand. Constable Charlebois said she was then told by Dr. Paula Slaney that blood work was ordered for Mr. Murphy, and she informed the doctors that she would seek a warrant to seize some of the blood drawn by the hospital. Once she was told by Dr.

Fitzpatrick that he could not understand the blood demand she did not give him the demand or read him his rights. [ 23 ] Constable Charlebois said she went to the treatment room and waited until the lab technician arrived at 4:24 a.m. When the lab technician arrived she asked her not to use alcohol swabs. She said she observed four vials of blood being drawn from 4:26 – 4:27 a.m. and while the blood was being drawn Mr. Murphy was conscious and made no verbal or physical objection. The officer said she told the lab technician that she would seek a warrant for the seizure of a specimen of Mr.

Murphy’s blood. [ 24 ] Constable Charlebois testified she left the treatment room shortly after 4:27 a.m. and encountered Michael Stoodley, another occupant of the vehicle, at the hospital. She took a statement from Mr. Stoodley between 4:40 and 5:00 a.m. and then she left the hospital. That information was used to obtain the Warrant. [ 25 ] On July 16, 2019, she prepared an Information to Obtain a Search Warrant, a Warrant to Search, and an Assistance Order. She introduced the documents at the voir dire .

She admitted there was an error in paragraph 18 of the ITO stating that there were five vials of blood drawn by the hospital. She said that there were in fact four vials of blood drawn by the hospital on July 13, 2019, which was the same information she had recorded in her notes she made at the time, and it was an error. [ 26 ] Constable Charlebois admitted that when she entered the ambulance she had information Mr. Murphy was the driver and there was a possible impairment, and she was focused on Mr. Murphy as a suspect in an impaired investigation. She agreed she did not ask Mr.

Murphy for his consent to enter the ambulance, and she did not ask the ambulance attendants for their consent. She admitted that shortly after 3:10 a.m. she had formed reasonable and probable grounds to make a demand. Constable Charlebois was asked whether she had considered telling Mr. Murphy in the ambulance “you do not have to say anything to me,” or considered telling him that he was the focus of an impaired investigation. She was also asked whether she had the opportunity to read Mr. Murphy his rights to counsel in the ambulance.

In both cases she said he was going in and out of consciousness and said she did not think it was necessary. She denied it was because she did not think he was detained. [ 27 ] In terms of whether she made a request to store a sample of blood, Constable Charlebois said she did not ask the lab technician to keep a vial of Mr. Murphy’s blood for the police, or ask her to keep it in the black box in the hospital lab. She testified she would not have said the words to the lab technician “keep a vial of blood,” and she was not even aware there was a black box in the hospital lab. She confirmed that in her view Mr.

Murphy was not detained by her on July 13, 2019. [ 28 ] Dr. Erin Fitzpatrick was the doctor who assessed and treated the Applicant in the treatment room at the hospital on July 13, 2019. She was called in to the Emergency Department on July 13, 2019, to respond to a multiple trauma incident with four injured persons. Dr. Slaney was on call and Dr. Fitzpatrick treated two of the patients, including Nathan Murphy. She described the situation they were faced with as chaotic and hectic. Dr. Fitzpatrick said Mr. Murphy was treated first because he was complaining of a head injury and she thought Mr.

Murphy could need a CT scan. She understood the vehicle had been travelling at speed, it had hit a light pole and had rolled over. She was concerned about head trauma and a brain bleed. [ 29 ] When she entered the treatment room to examine Mr. Murphy she said she saw an RCMP officer already sitting in the room. She did not speak with the officer and said she drew the curtain around Mr. Murphy before examining him. Once the curtain was pulled the police officer could not see the patient or the doctor. Dr.

Fitzpatrick said she had no involvement with the police officer in the treatment room, and did not observe the officer taking notes in the treatment room. She said that from where she was sitting the police officer would have been able to hear what was being said by her and by Mr. Murphy through the curtain. [ 30 ] Following the examination, Dr. Fitzpatrick ordered a CT scan and a “trauma set” of blood tests that included a test for the presence of ethanol alcohol.

She said her order of a trauma set was considered the “standard of care” for patients in these circumstances, so that the hospital had baseline results. She felt she was dealing with a patient who had a history of a serious head injury, he was not acting normally, and blood testing including for ethanol was needed to assess whether it was because of alcohol or because of a brain injury. Dr. Fitzpatrick testified that the presence of the police officer played no role in her ordering the blood work. In terms of consent she testified she would have told Mr.

Murphy she was ordering the blood work, and he did not give any indication of refusing his consent to the blood work. She testified that if he had refused she would have had the authority to order the trauma set without his consent in the emergency circumstances. [ 31 ] She confirmed that after the examination she spoke to a police officer in the doctor’s write up room who asked her if Mr. Murphy could provide consent to a blood demand and if the RCMP could ask him some questions. She said she discussed the request with Dr.

Slaney and they both agreed that the Applicant could not give his informed consent. [ 32 ] She testified that she had no prior experience with a police officer being in the treatment room during an examination. She did not have any concern about the presence of the officer in the treatment room at the time, but she is now aware of an Eastern Health policy that would not have permitted the presence of a police officer for privacy reasons. Her understanding is that the policy says unless the patient is under arrest or in the care of the police they are not permitted in the treatment room. [ 33 ] Mr.

Rene Delisle was in the EMS ambulance that transported the Applicant to the hospital in Burin. He was the primary care paramedic in the ambulance. The ambulance service received a call of an accident at 2:43 a.m. and he arrived at the scene at 2:56 a.m. Other emergency vehicles were there when he arrived. From the road he saw a vehicle down over the bank, and a utility pole that was snapped off. [ 34 ] Mr. Delisle said he assisted putting Nathan Murphy in the ambulance and conducted a primary assessment on him. He said Mr.

Murphy was in a neck collar and on a back board, he was conscious, alert and awake, and he had a smell of alcohol coming from him. He said he asked Mr. Murphy if he had been drinking, and he said he had consumed three beer. A police officer was present in the captain’s seat at the front of the patient compartment. Mr. Delisle said it was not unusual to transport a police officer after a motor vehicle

accident. He did not remember when the police officer entered the ambulance and he had no dealings with the police officer in the ambulance. He did not remember the police officer requesting the paramedics not to use alcohol swabs on Mr. Murphy, and he did not see her making notes. A second patient was placed in the ambulance and he called in a Multiple Casualty Incident to the hospital. During the trip to the hospital, which took about 10 minutes, Mr. Murphy was stable and the paramedic had no concerns. The paramedic administered no medications or IV to Mr. Murphy in the ambulance. [ 35 ] Ms.

Sandra Murphy was the laboratory technician who drew the Applicant’s blood at the hospital following the accident. She was working at the lab early on July 13, 2019, and she received the doctor’s order to collect blood from Mr. Murphy at the emergency department. She went there to collect the blood and confirmed that she would have told him she was collecting his blood. She did not recall him saying anything to her. She testified that a police officer and Audrey Murphy were both present when she drew the Applicant’s blood.

She said the procedure for an ethanol test is to use a soapy towelette to clean the injection area, not an alcohol swab. [ 36 ] Ms. Murphy testified she collected the vials of blood from Mr. Murphy by 4:28 a.m. and then she returned to the lab. She could not recall the exact number of vials. She said the testing of the blood was done by the equipment in the lab. The vials were placed in a centrifuge and then either placed in a coagulator or a chemical analyzer, depending on the test.

In terms of the retention of the blood, she said that vials that are analyzed for blood chemistry are stored for seven days after the blood is tested according to Eastern Health policy. The others are only kept for 24 hours. [ 37 ] Ms. Murphy said that while she was in the treatment room a police officer asked her to keep a sample of the blood drawn from the Applicant. Ms. Murphy testified that whenever she is asked by the police to keep a sample, she stores a sample of the blood tested for blood chemistry in a locked box in the chemistry fridge.

She testified that the samples she collected from the Applicant were tested first and then one vial was stored because of the request of the police officer. She confirmed that this is done in accordance with a written Eastern Health procedure that was introduced in evidence during her testimony. [ 38 ] Under the procedure, entitled “Operations Procedure Release of Blood or Urine Specimens with a Warrant,” the stated purpose is to “provide(

s) instructions on what to do when the police request release of a patient blood or urine sample with a warrant.” It provides that staff “must be familiar with this procedure and ensure appropriate instructions are followed,” and it describes the following “Procedure”: 5.1 On occasion, police may notify the laboratory to secure a specimen. • Retrieve the sample from the designated on site storage area/unit; • Seal the specimen with parafilm, and place in a biohazard bag. • Place the specimen in a secure locked box in the designated fridge for your site. • Record in Meditech under the specimen number the following: “@ specimen has been secured for release with a warrant” • The police will present in the laboratory with a search warrant for the specimen.

File the warrant in the binder labelled “Search Warrants” located in the designated area for your site. The key to the locked box will be found with the search warrant binder. Do not remove this key from the binder. • Retrieve the specimen from the locked box, and release the specimen to police. [ 39 ] Ms. Murphy said she was in the hospital laboratory on July 16, 2019, when a police officer came with the warrant to seize a sample of the Applicant’s blood.

The vial of the Applicant’s blood that was stored after it had been tested for blood chemistry was turned over to the officer and a copy of the warrant was kept in the lab. Ms. Murphy was referred to the records of the hospital testing and confirmed that the results of the ethanol alcohol test on Mr. Murphy’s blood conducted at the lab showed a reading of 32.2 mmol/L, as compared to a legal limit of 17 mmol/L. [ 40 ] Ms. Murphy did not recall the number of vials of blood she drew from Mr. Murphy, and did not remember the police officer asking her not to use an alcohol swab.

She said that the police officer asked her to secure a specimen, but she did not recall the police officer saying anything to her about keeping it in a “black box.” When asked whether the hospital would be sharing some of the blood she drew from Mr. Murphy with the police, she said she assumed so. Ms.

Murphy confirmed that tested blood retained in the lab could still be used if the doctor ordered further testing, but she did not know whether the sample she secured for the police was finished with, or could be retested by the hospital, but said she assumed that the hospital was finished with that vial of blood. [ 41 ] On the voir dire the Defence called Justin Green, Ashley Hodder, David Flowers, Lisa Murphy, Kimberley Pike and the Applicant’s mother, Audrey Murphy. [ 42 ] Mr. Justin Green is a volunteer firefighter. He assisted Mr. Delisle in the ambulance that transported the Applicant.

On his arrival at the scene he saw Nathan Murphy, who he knew was a security guard at the hospital, and he helped place Mr. Murphy on a back board and put him in the ambulance. He said he did not know how the police officer came to be in ambulance, and that her presence in the ambulance would have been the primary paramedic’s call. According to Mr. Green, the ambulance left the accident scene at about 3:10 a.m. and it took six or seven minutes to get to the hospital. Mr. Green recalled that Mr. Murphy was able to answer the primary paramedic’s questions, and his level of consciousness was very good.

As to the police officer, he said she was sitting in the captain’s chair taking notes and she instructed the paramedics not to use alcohol swabs on Mr. Murphy. [ 43 ] Mr. Green said that when he first spoke with Mr. Murphy he admitted he was driving the overturned vehicle, and admitted that he had been drinking. He also agreed that he detected a strong smell of alcohol from Mr. Murphy’s breath while he was speaking to him. Mr. Green said the scene was hectic and constantly changing that night. He agreed that the police officer did not say anything to Mr.

Murphy in the ambulance, and said she was just sitting there and letting the paramedics in the ambulance “do what we had to do,” with the patients. He agreed it is not uncommon for police officers to be transported in the ambulance in some situations, and it did not strike

him as strange that Constable Charlebois was in the ambulance that night. [ 44 ] Ms. Ashley Hodder is another ambulance driver who was at the accident scene on July 13, 2019. She was not involved with Nathan Murphy, she drove the ambulance transporting Michael Stoodley. She left the accident scene at 3:16 a.m. Before she left, a male RCMP officer asked her to deliver a package that she believed was a RCMP Blood Kit to Constable Charlebois, who had already left in the ambulance with Nathan Murphy. When she arrived at the hospital she passed the package to the officer in the treatment room.

She had no conversation with the officer and estimated the time at that point was 3:25 a.m. She knew the officer she handed it to as “Ashley” but did not know her last name. She agreed it was a chaotic scene with multiple patients being treated and many nurses and medical personnel around. [ 45 ] David Flowers was a registered nurse working at the emergency department on July 13, 2019. He was the nurse responsible for completing the initial triage assessment of Nathan Murphy when he arrived at the emergency department at 3:21 a.m. He referred to the report he completed at the time. It stated that Mr.

Murphy had arrived by EMS, fully immobilized with head and backboards. He was sleepy but responded to his voice, there was an odor of ethanol alcohol, and he had abrasions on his forehead. He said Mr. Murphy answered all questions appropriately. [ 46 ] Lisa Power was a registered nurse called in to the emergency department on July 13, 2019. She re-assessed the Applicant at 5:15 a.m. She referred to the written report recording the results of her re-assessment, which was in her handwriting. She had noted the Applicant’s vital signs were normal, and his Glasgow Coma Scale score was 15.

She said that the results were about what you would expect from a conscious person. She saw him in the treatment room in the Emergency Department and did not recall who else was present. She said her evidence was basically what was in the report, as she did not have any other independent recollection. [ 47 ] Kimberly Pike is the Manager for Emergency, Patient Care and Out Patients at the Burin Hospital. She introduced the Eastern Health policies regarding the release of the personal information of patients, including the Disclosure of Information to Police Policy, ISP-130. Ms. Pike initially testified that

section 4.4 of the ISP-130 policy, entitled Requests from Police for Observorship, requires a form CH 1013 must be completed by the police and reviewed by Eastern Health before police observorship for facilitating police investigations in an Eastern Health facility is permitted. On cross-examination she agreed that

section 4.4 appeared to read that the police can observe a patient in an Eastern Health facility at the discretion of the health care provider. She also testified that in accordance with Eastern Health policy if blood is ordered for the medical management of a patient, the only way the police could obtain a sample of that blood is with a warrant. [ 48 ] Audrey Murphy is Nathan Murphy’s mother. She said she was working at the emergency department on July 13, 2019, as a registered nurse, which was the night her son Nathan got in an accident.

She took the call about the accident and dismissed herself from duty because Nathan was one of the injured persons being brought to hospital. The ambulance arrived at around 3:15 a.m. She was in the entrance doorway of the hospital when Nathan arrived. He was on a stretcher, he was back boarded, and he had a neck collar and blocks in place, and on the way in he said to her “it was my car.” She said she turned and said to him, “of course it was.” [ 49 ] Ms. Murphy said Nathan was brought in to the treatment room and the police officer came in and sat at the foot of his bed, about 1 – 1 ½ feet from Nathan’s feet.

She saw the officer taking down notes. Ms. Murphy testified Nathan was triaged immediately on his arrival by David Flowers and he answered all the questions appropriately. She said that during the triage assessment, while IV insertions and other routine medical care was taking place, the police officer sat there listening to it all. When Dr. Fitzpatrick arrived, 10 minutes later, she went to the head of the bed and questioned Nathan about his prior medical history. Ms. Murphy said she was asked about the condition of Nathan’s eyes and whether they were normal for him.

She said she told the doctor they were, and his eye movements are abnormal because in 2011 Nathan had a brain injury in an ATV accident. At one point, Ms. Murphy said she pulled the curtain around Nathan’s feet when she noticed it was not all the way around. Only the curtain was separating Nathan Murphy and Dr. Fitzpatrick from the police officer while the doctor was doing her assessment. The police officer was a foot and a half away writing down notes. [ 50 ] After the assessment, Ms. Murphy went to the doctor’s write up office, where Dr. Slaney told her Nathan cannot consent to a blood demand. Ms.

Murphy testified she turned around as this was being said and the officer was there and she said “that’s alright, I am going to warrant the blood.” Ms. Murphy said she then went back to Nathan’s room, and that when she got there the lab technician was already there. She said the police officer followed her back, and she heard the officer say to the lab technician she was going to be warranting for the blood, not to use swabs, and she wanted a sample secured. According to Ms. Murphy, the lab technician did not say anything to Nathan before drawing the blood, she just checked his arm band.

After the blood was drawn the lab technician left the room and the officer also went out. Dr. Fitzpatrick cleared Nathan after his x-rays and CT scan were completed. He was then removed from the back board, and she said he could go home. [ 51 ] Ms. Murphy said she felt Nathan had only suffered minor injuries in the accident, but on cross-examination she confirmed that Nathan did come back to the hospital complaining of pain in his head on July 13, 2019, and on July 14, 2019, because he was having headaches and she was worried about his medical condition. [ 52 ] Ms.

Murphy agreed that at the entrance she spoke with Nathan as his mother, not as a heath care provider. She confirmed that the police officer never spoke to Nathan at any time while she was in the room, she just sat there and made notes. She agreed the police officer was not interfering with his medical treatment, and that she never heard her tell anyone what to do. She further agreed that no one told the police officer to leave the treatment room during the triage and she agreed that the doctor did not ask to have her removed from the room. According to Ms.

Murphy neither she nor Nathan refused to consent to his blood being drawn by the hospital. [ 53 ] On July 16, 2019, Constable Charlebois prepared an Information to Obtain a Search Warrant to obtain the Warrant and an Assistance Order under s. 487 of the Code . Constable Greentree executed the Warrant at the hospital on the same day and the sample of the Applicant’s tested blood that was secured by Sandra Murphy, and a copy of the medical records pertaining to the Applicant’s treatment on July 13 – 14, 2019, were seized. THE ISSUES

[ 54 ] To determine the Application I will address the three substantive Charter issues raised by the Applicant, and because a breach has been established under s. 8, I will address the arguments for exclusion under s. 24(2). [ 55 ] The specific issues I will address in determining this Pre-Trial Application are as follows: A. Was the Applicant detained under the Charter on July 13, 2019? B. Was there a breach of s. 8 of the Charter in the treatment room? C. Was the Applicant’s blood seized in violation of s. 8 of the Charter ? D. Should any evidence obtained be excluded pursuant to s. 24(2) of the Charter ? E.

Could the Warrant to Search nonetheless have been issued by the Justice? DISCUSSION A. Was the Applicant detained under the Charter on July 13, 2019? The Applicable Law [ 56 ] The first issue is whether the Applicant was detained on July 13, 2019. If the Applicant was detained, I will also determine the specific point at which a detention crystalized because that is when his s. 10 (

b) right to counsel was triggered. The law I must apply to the facts is set out in the companion decisions of the Supreme Court of Canada in R. v. Grant , 2009 SCC 32 , and R. v. Suberu , 2009 SCC 33 . [ 57 ] In Grant , the Supreme Court of Canada said that the existing law on the issue of detention was difficult to apply, particularly where the concept of psychological detention was engaged. A psychological detention can arise where a person is not actually detained but he believes he has been detained and complies with a demand or direction from the police.

The court adopted a purposive approach to the law of Charter detention and it provided both a definition of the concept of “detention,” and a set of factors to help guide judges in making what are often complicated decisions about whether a psychological detention is established. [ 58 ] Based on its purposive analysis of ss. 9 and 10, the court defined the concept of Charter detention as referring to a suspension of the individual's liberty interest by a significant physical or psychological restraint. The reformulated principles of Charter detention were summarized by the court at para. 44 of Grant : 44 In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 59 ] In Grant the court specifically rejected the suggestion that a Charter detention occurs whenever the police suspect a person of a crime and attempt to obtain incriminating information.

The court confirmed that before the obligations arising upon Charter detention are triggered, in particular the Applicant’s right to counsel under s. 10(b), there must be a meaningful curtailment of the liberty of the subject by the police, reasoning that only persons in that situation have the genuine need of the additional rights accorded by s. 10 of the Charter . The right to counsel under s. 10(

b) is therefore specifically described in Grant at para. 22 in the following terms: “(a right) designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to the authorities, consistent with the over-arching principle against self-incrimination.” [Emphasis Added] [ 60 ] The question of whether a person has been detained in an ambulance is not a new one for the courts. In arguing that the Applicant was placed under detention in the ambulance, the Applicant referred me to the rulings in R. v.

Villeneuve (2021), 72 M.V.R. (7th) 107 , 481 C.R.R. (2d) 246 (N.L. Prov. Ct.) , R. v. Powell (2017), 8 M.V.R. (7th) 327 , 377 C.R.R. (2d) 255 (N.L. Prov. Ct.) , and R. v. Jackson , 2019 NWTTC 6 . The Crown submitted the rulings in R. v. LaChappelle , 2007 ONCA 655 , R. v. Culotta , 2018 ONCA 665 and R. v. Butler , 2018 SKQB 275 , which also apply the legal principles of Charter detention to interactions in an ambulance. Ultimately this Application must be decided based on an application of the principles in Grant and Suberu to the facts, however the cases I was referred to were of assistance.

[ 61 ] In Villeneuve , a police officer who was investigating a fatal accident accompanied an ambulance transporting one of the drivers involved in the accident to the hospital. The officer had observed the driver exhibiting signs of impairment, and he saw a wrist band on the driver’s hand consistent with him being in a club. The police officer did not ride in the patient compartment or question the driver in the ambulance.

In a treatment room in the emergency department the officer, who knew that there had been fatalities in the accident, engaged in a focused questioning of the driver about the accident and whether he was drinking for about 30 minutes before he was given the standard police caution. The court held the driver was detained when the police officer began the focused questioning, and as he was not informed of his rights to counsel at that point, his s. 10(

b) rights were breached. [ 62 ] In Powell , a police officer accompanied an ambulance transporting the driver to the hospital. At the scene, the officer had observed the driver exhibiting signs of impairment. The officer testified that the driver did not want to receive medical treatment or go to the hospital in the ambulance. The police officer entered the patient compartment of the ambulance and stayed with the driver for 34 minutes.

The trial judge found the officer continued to observe the accused during the ambulance journey and, because the accused had not consented to entering the ambulance, he was clearly detained, and his rights were breached when he was not informed of his Charter rights during the ride to the hospital. [ 63 ] In Jackson , an officer assisted in placing the driver on a stretcher and putting him in the back of the truck for transport to the hospital. While in the back of the truck, the officer questioned the driver about the accident and whether he had consumed any alcohol.

When the suspect confirmed he had, the officer moved closer so that he could detect alcohol from his breath, and continued to question the driver. The trial judge concluded that Mr. Jackson was physically detained in the truck by reason of his injuries, not by the police. The trial judge found a psychological detention resulted because a reasonable person in the position of Mr. Jackson would conclude, based on the persistent questioning of the police officer, that he had no choice but to answer. Because the purpose of the questioning was to investigate whether Mr.

Jackson was operating a motor vehicle while impaired, the trial judge found he should have been provided with his rights to counsel and police caution. [ 64 ] In LaChappelle , the officer entered an ambulance transporting a driver suspected of impaired operation following a fatal accident. The police officer observed the driver’s movements and speech, and detected the odor of alcohol but did not speak to the suspect in the ambulance.

The trial judge found that the suspect’s inability to leave the ambulance was occasioned by his injury and the need for medical treatment, and there was no police demand or direction to the suspect to say or do anything. The trial judge found that the ambulance personnel consented to the officer’s presence and she did not interfere with the suspect’s medical care. In the circumstances there was no psychological compulsion, which could objectively be considered as leaving the suspect with no choice but to answer questions and incriminate himself.

The Ontario Court of Appeal agreed, concluding the officer “did nothing to detain the appellant. She did not make any demand or give any direction that resulted in his physical or psychological detention. The appellant was ‘detained’ by his injuries from the collision.” [ 65 ] In Culotta , a police officer entered an ambulance and spoke with three women who were awaiting treatment after a boating accident. The officer asked who had been operating the boat and they indicated it was the accused. The officer then asked the accused whether she had consumed any alcohol and she confirmed she had been drinking.

The police officer observed signs of impairment and he arrested her for impaired operation of a vessel. The Ontario Court of Appeal agreed with the trial judge that the accused was not detained when she was questioned by the officer in the ambulance prior to her arrest. The appeal court concluded that she was in the ambulance to receive medical treatment, not through any actions of the police, so there was no detention.

When he entered the ambulance the investigation was preliminary so the officer was entitled to make general inquiries about the collision without providing them with their Charter rights or police caution. [ 66 ] In Butler , a police officer rode in the ambulance carrying an injured driver to hospital, with the agreement of the EMS personnel, or at least without their objection. In the ambulance he observed signs of impairment by drugs and formed his reasonable grounds to conclude that the accused was impaired by the consumption of drugs.

The police officer placed the driver under arrest in the hospital and provided her with her rights and police caution. On a voir dire to determine the admissibility of evidence the accused sought to have the evidence obtained from the commencement of her detention in the ambulance excluded. The trial judge found there was no detention of the driver in the ambulance or, for that matter, at any time prior to her later arrest in the hospital.

The court found that: 55 The reality of the situation is that the accused was not detained by the police but, rather, was detained by her medical condition and the treatments being administered to her. Cst. Lauf did nothing to detain the accused, in the words of the court in LaChappelle . There is nothing in the evidence to allow me to conclude the accused was either physically detained or psychologically detained by the police. Her injuries dictated she had to be in the ambulance and the hospital. This was not the doing of the authorities. The

Section 10 Detention Analysis [ 67 ] The Applicant acknowledges he was never placed under physical detention in the ambulance or at the hospital by the police officer on July 13, 2019, and that he was not subject to a legal obligation to comply with any direction or demand in the ambulance. The Applicant alleges that a psychological detention arose based on the police officer’s words and overall conduct in the ambulance, which he alleges was analogous to her taking complete control of the situation and of the Applicant.

The Applicant submits that the point of detention was when the officer entered the ambulance, told the ambulance attendants not to use alcohol swabs, and started listening in on his conversation with the paramedic and making notes. [ 68 ] The Crown says the Applicant was never detained by the police, he was placed in the ambulance and transported to the hospital for treatment of the injuries he received in the accident, and not because of any act or direction of the police.

The Crown points out that the police officer had the implied consent of the paramedics to ride in the ambulance, and she did not interfere with his treatment or subject him to any psychological compulsion. The Crown points out that Constable Charlebois never spoke with Mr. Murphy, let alone questioned him, at any time in the ambulance and submits that there was no demand or direction upon which a reasonable person in the Applicant’s shoes could have felt a psychological compulsion from the police officer’s conduct or words to say or do anything.

The Crown submits the law is clear that the mere presence of the officer did not amount to a Charter detention in the circumstances.

[ 69 ] To determine if there was a psychological detention, I am obliged to apply the detention principles outlined in Grant .

The test in Grant is whether in all the relevant circumstances a reasonable person in the Applicant’s circumstances would have concluded, based on the circumstances giving rise to the police encounter as would reasonably be perceived by that individual, and based on the words and conduct of the police officer, that his right to choose how to interact with the police (i.e. whether to leave or to comply with a demand or direction by the officer) had been removed. [ 70 ] What were the Applicant’s circumstances when the encounter began at 3:10 a.m.? By that time, and without the involvement of the police, Mr.

Murphy had already been placed in the ambulance by the first responders after his vehicle had hit a light pole, left the road, and rolled over to end up on the beach below the roadway. He was injured in the accident and on the evidence he was fully immobilized with a neck brace, blocks, and back board. He had not objected to being placed in the ambulance, or refused his consent to medical treatment for his injuries. This was not a case of physical restraint by the police or compulsion by operation of law. [ 71 ] The encounter with the police officer began when Constable Charlebois entered the ambulance.

The reason she did so based on the evidence was that she knew the Applicant was the owner of the vehicle involved in the accident, she knew there were suspected serious injuries, and another officer had told her he had received information indicating Mr. Murphy was the driver of the vehicle and was possibly impaired. In the circumstances I find that when the police officer entered the ambulance she was acting in accordance with her duty to gather evidence to determine if the Applicant had committed a crime, which was a legitimate exercise of police powers.

Upon entry into the ambulance there was no objection by either of the paramedics, or the Applicant, and I therefore find that she entered the ambulance with the implied consent of the paramedics. In making that finding I place no particular weight on the evidence of the paramedics whether such a practice may be routine or common in the circumstances of a serious motor vehicle accident. [ 72 ] At this stage in the encounter I find there was no basis upon which a reasonable person in the Applicant’s position would conclude he was deprived of the right to choose how to act by the police officer.

The Applicant says however the police officer’s words and overall conduct after she entered the ambulance amounted to her taking complete control of the situation and of the Applicant. [ 73 ] As to the evidence of police conduct, the officer said she requested the paramedics not to use alcohol swabs on Mr. Murphy but that she did not otherwise speak to Mr. Murphy in the ambulance or question him. Justin Green testified the officer “instructed” the paramedics not to use alcohol swabs on Mr. Murphy, but agreed that the police officer did not say anything to Mr.

Murphy in the ambulance, she just sat there taking notes. Rene Delisle, the paramedic in charge, said he did not recall the police officer entering the ambulance, he had no dealings with the officer in the ambulance, and he did not hear her say anything or see her taking notes. I have no evidence from the paramedics about if the Applicant reacted to the officer’s words, or even if he heard them. I find as a fact that the police officer did ask that the paramedics not use alcohol swabs on Mr. Murphy, but nothing turned on the request as no IV or medications was given to Mr. Murphy in the ambulance.

As to the police officer’s conduct, I find on the evidence that for the 10 minutes while the officer was in the ambulance she sat passively observing the Applicant and gathering information to determine if he had committed a criminal offence. Again, I have no evidence from the paramedics about how the Applicant reacted to the officer’s presence or note-taking, or if he even saw her taking notes. [ 74 ] The Applicant argues that the facts of this case are very similar to the facts found by other courts in the authorities he provided to the court. I do not agree.

In Powell the reasoning on the Charter detention issue turns on the fact the driver was ambulatory and had refused treatment and not consented to be placed in the ambulance, and he had his physical liberty restrained after the encounter began for over 30 minutes with the police officer observing him. In both Villeneuve and Jackson a psychological detention arose when the police officer engaging in focused and persistent questioning of the injured driver.

In this case, there was no police questioning of the Applicant, let alone a focused or persistent questioning. [ 75 ] In LaChappelle , Culotta and Butler , the drivers were already in the ambulance because of their injuries when the officer entered and no direction or demand was thereafter made by the officer to the injured driver upon which a psychological compulsion could arise.

This line of cases supports the general conclusion that passive presence of an officer in an ambulance with a driver who is placed in the ambulance to receive medical treatment because of his or her injuries will not, in the absence of any demand or direction from the police, result in a Charter detention. [ 76 ] On the facts of this case, I find that the Applicant was physically detained in the ambulance by his medical condition and the officer’s entry and presence in the ambulance during the 10 minute drive to the hospital constituted passive non-intrusive observation of the Applicant like the officer’s conduct in LaChappelle .

The Applicant was never questioned by the police officer in the ambulance, or spoken to, so the evidence does not establish that by her words or conduct the police officer demanded or directed that the Applicant do anything or say anything to remove his choice to speak to the paramedics in the ambulance. If the Applicant heard the request by the officer not to use alcohol swabs on him, or if he saw her taking notes, I would find that a reasonable person in his circumstances would conclude that he was probably under police investigation for impaired driving.

That evidence would not establish a reasonable belief on behalf of a person in the position of the Applicant that his choice whether to speak in the ambulance had been removed by the police. [ 77 ] The questioning of the officer was directed at establishing that when she entered the ambulance the Applicant was already in legal jeopardy and in need of the Charter protections associated with detention. For example, the officer was asked on cross-examination whether she had considered telling Mr.

Murphy in the ambulance “you do not have to say anything to me,” or considered telling him that he was the focus of an impaired investigation. She was also asked whether she had the opportunity to read Mr. Murphy his rights to counsel in the ambulance. There is no doubt the police officer was investigating the Applicant for impaired driving, and I accept he may therefore have benefitted from being informed of his Charter right to counsel.

The issue however is not whether he was being investigated and was in need of the Charter protections associated with detention, it is whether he was in law detained and was therefore entitled to the right to counsel under s. 10(b). [ 78 ] I am not satisfied that there was any restrictive demand made or direction given by the officer in the ambulance upon which a reasonable person in the Applicant’s circumstances would have concluded that the police officer had suspended his liberty of choice of movement or suspended his liberty to make a choice in an informed way about whether to speak in the ambulance.

Applying the test outlined in Grant to these facts, the Applicant has not shown he was subject to a psychological detention under the Charter in the ambulance on July 13, 2019.

[ 79 ] Although a detention in the hospital was not pressed by counsel, I will address it for the sake of completeness. The Applicant was bought into the hospital at 3:20 a.m. by medical staff for emergency treatment, not at the request or demand of the police officer. In so far as he was physically unable to choose to leave the treatment room, it was again as a result of the injuries he suffered, not by the direction of the police. In argument counsel for the Applicant conceded that the period of psychological detention ended at 3:42 a.m.

There is no evidence that the police officer ever questioned the Applicant, or spoke to him, or in fact spoke to anyone in the treatment room before that time. Her conduct was again passive non-intrusive observation. I find based on the test in Grant that no psychological detention of the Applicant crystalized in the hospital. As the Applicant was not detained within the meaning of the Charter at any time on July 13, 2019, either in the ambulance or the hospital, then it follows the state’s duties and the rights accorded to Mr. Murphy under s. 10(

b) were not triggered, and s. 24 of the Charter has no application. [ 80 ] The Applicant submits that when the officer formed her grounds to make a demand, shortly after 3:10 a.m., she was obliged under the Code to make a demand at that time, and therefore inform him of his rights to counsel and give him the police caution. This argument engages the wording in s. 320.28(1) of the Code : 320.28

(1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable , [Emphasis Added] a. require the person to provide, as soon as practicable, i. the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or ii. if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and b. require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood. [ 81 ] In R. v.

MacMillan , 2013 ONCA 109 , the Ontario Court of Appeal overturned a decision that an accused was detained from the time the officer had formed grounds because the police officer admitted he would not have let the accused leave if she had tried to do so before the demand was made. Applying the principles in Grant , the court held that until there was a demand made there was no Charter detention because the accused was not physically restrained and was not under any legal obligation to comply with a restrictive demand or direction.

In MacMillan a demand was eventually made, however the court concluded that a delay of 29 minutes did not invalidate the demand because there were exigent circumstances. [ 82 ] In this case the officer had reasonable grounds to make a demand after the Applicant told the paramedic that he had been driving the vehicle and had consumed alcohol, and after the officer had observed a strong odor of alcohol coming from Mr. Murphy. I find that was at 3:12 a.m.

I accept that a demand was not made in the ambulance because of the hectic situation and there was a real question in the officer’s mind of whether he could consent to a blood demand. I find the officer cannot be faulted for waiting to speak with Dr. Fitzpatrick to decide whether she could make a valid blood demand, and there was no evidence the delay in making a demand was deliberate. When she was informed at 3:42 a.m. that the Applicant could not understand a blood demand she understandably refrained from making one. [ 83 ] If Constable Charlebois had been informed at 3:42 a.m. that Mr.

Murphy could understand a blood demand and then proceeded to make a blood demand, a delay of some 30 minutes from the forming of her grounds would have resulted. Applying the reasoning in MacMillan , such a delay would not have invalidated the demand, and the failure to read the Applicant his rights at 3:12 a.m. would not have amounted to a breach of his s. 10 Charter rights.

That being the case, it can hardly be a breach of the Applicant’s rights under s. 10 of the Charter to delay reading the Applicant the blood demand for 30 minutes until the officer had properly determined whether the Applicant could properly comprehend the meaning of the blood demand. B. Was there a breach of s. 8 of the Charter in the treatment room? The Second Charter Issue [ 84 ] The last

section of the Applicant’s brief, entitled “Other

Section 8 Issues,” outlines an argument alleging a breach of Eastern Health policy and the Personal Health Information Act , S.N.L. 2008, c. P-7.01 when the hospital allowed the police officer to enter the treatment room and observe while the Applicant was being examined by the nurse and the doctor, and later to observe while the Applicant’s blood was drawn by Sandra Murphy, the laboratory technician.

As a result, the Applicant claims his privacy rights were intruded upon in violation of s. 8. [ 85 ] In oral argument however the Applicant conceded that the hospital employees acted solely for medical purposes and not as agents of the state. The Applicant also abandoned the breach of Eastern Health policy argument, reserving the right to refer to the policy if a breach of the Charter is established.

As the Applicant is not alleging any hospital employees were agents of government then the question of whether any employee of Eastern Health breached a policy of the employer, or violated provincial privacy law, would not affect the constitutional analysis of whether the state conduct amounted to a breach of the Applicant’s s. 8 Charter rights. [ 86 ] In the circumstances I do not need to determine either of the questions.

The more narrow issue for my determination therefore is whether the police conduct in the hospital treatment room violated the Applicant’s reasonable expectation of privacy and amounted to an unreasonable search or seizure under s. 8 of the Charter . The Applicable Law

[87] The law I must apply to determine whether there was an unreasonable search or seizure under s. 8 of the Charter is rooted inthe seminal decision of the Supreme Court of Canada in Canada (Director of Investigation & Research, Combines Investigation Branch)v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 [hereinafter Hunter]. In Hunter the court confirmed that a reasonableexpectation of privacy is the cornerstone right protected by s. 8 and it established the basic framework to determine whether a search orseizure was constitutionally valid.

The court held that s. 8 protects people not places, and as a result police conduct interfering with asubject’s “reasonable expectation of privacy” constitutes a search under s. 8 of the Charter.

It is settled law that a reasonable expectationof privacy is one which Canadian society would be prepared to recognize as being reasonable. [88] A threshold question in cases where the violation of s. 8 is alleged is whether a “search” or “seizure” under s. 8 in fact tookplace, bearing in mind that on its wording the protection afforded by s. 8 only applies to conduct by the police that can be said to amountto a search or seizure and not to other conduct. In R. v.

Evans (1994), (BC CA), 24 C.R.R. (2d) 94, 1994 CarswellBC1111 (C.A.), at para. 86, Rowles, J.A. addressed the scope of a “search” under the Charter as follows: “Search” is a common English word. We speak of a search for a person as in a search for a child who is lost. We speak of a search for aculprit seen running from the scene of a crime and lost sight of. But in this

section of the Charter, I think the word is about looking for“things” (and in this context I use “things” to include words spoken) to be used as evidence of a crime.” [89] In R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417, a blood sample seizure case, the court held that the essence of a“seizure” under s. 8 of the Charter was held to be “the taking of a thing from a person by a public authority without that person’sconsent” and the distinction between a seizure and a “mere finding of evidence” arose where the individual ceased to have a privacyinterest in the thing allegedly seized. [90] Of course, only unreasonable searches constitute a violation of s. 8. The law I must apply to determine whether a search orseizure is a “reasonable” one is synthesized in the statement in R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, where thecourt held in order for a search to be reasonable and therefore constitutionally valid, it must be (

a) authorized by law; (

b) the law mustitself be reasonable; and, (

c) the manner in which the search is conducted must be reasonable. [91] In support of the Applicant’s argument that his privacy rights were violated in the hospital treatment room the Applicantreferred me to R. v. Taylor, 2013 ABCA 342. In Taylor, the Alberta Court of Appeal concluded that, following a violation of s. 10(

b) ofthe Charter, a further s. 8 Charter breach resulted from the involvement of two police officers who worked “side-by-side with medicalpersonnel engaged in a medical procedure” when the officers assisted a nurse while she was in the course of drawing blood for medicalpurposes and then tracked the vials of blood for continuity purposes. The court held that the police “hovered over” the accused and thenurse to gather evidence when the police knew they had not provided him access to counsel as he had requested.

In the circumstances,whether or not one of the officers handled the vials of blood as they were drawn it was clear the officer “was using her uniform to gatherevidence concerning the blood.” The court found that the police conduct in gathering evidence interfered with a subject’s reasonableexpectation of privacy and was found to be analogous to a seizure under s. 8. [92] The Applicant also referred me to R. v. Taylor, 2014 SCC 50 in which the Supreme Court of Canada upheld the decision of theAlberta Court of Appeal on the breach of

section 10(

b) of the Charter and confirmed that “An individual who enter a hospital to receivemedical treatment is not in a Charter-free zone.” [93] The Crown referred the court to a number of cases in which the unique facts in Taylor have been distinguished. In particularthe Crown referred to the decision in R. v. Cartwright, 2015 NBCA 42 where the New Brunswick Court of Appeal distinguished Tayloron the facts, however it accepted that if the evidence in the case on appeal had been obtained by a procedure intentionally directed by thepolice in dereliction of their duty under s. 10(

b) then the result should be the same. The

Section 8 Search Analysis [94] As a result of the concession of the Applicant that the hospital employees were not acting as agents of the government, and theabandonment of the policy issue, this issue is narrowed to a determination of whether the police conduct in the hospital treatment roomamounted to an unreasonable search or seizure. The Applicant points to the officer’s conduct of “hovering over the Applicant’s bedside”while taking notes in the treatment room.

The upshot, according to the Applicant, is that based on the decision of the Alberta Court ofAppeal in Taylor, as upheld by the Supreme Court of Canada, s. 8 of the Charter is engaged by this violation of the Applicant’s privacy. [95] As to the Applicant’s reasonable expectation of privacy in the emergency department treatment room the Crown points to theevidence that the police officer had the implied consent of the health care providers to be in the treatment room and observe theApplicant.

The Crown submits the officer did not become involved or interfere with the Applicant’s care in the treatment room in anyway.

The Crown submitted that the police officer was conducting an investigation in the treatment room, as she was entitled to do, butshe was not conducting a search under s. 8. [96] In terms of the facts I will deal first with the allegation that the officer’s conduct constituted “hovering over the Applicant’sbedside” while taking notes, as I note that the remaining material facts on this issue are largely undisputed. [97] The evidence and hospital records establish the Applicant was bought into the hospital at 3:20 a.m. by EMS.

Audrey Murphytestified that when the EMS personnel brought the Applicant in to the treatment room the police officer, who was in uniform, came inand sat at the foot of his bed, and after that time she saw the officer taking down notes. The officer’s evidence and her notes confirm thattestimony. No witness testified however that the officer was ever hovering over the Applicant’s bedside while taking notes, in factAudrey Murphy confirmed that the “just sat there and made notes.” Furthermore, Ms.

Murphy agreed the police officer was notinterfering with her son’s medical treatment, and that she never heard her tell anyone what to do. I therefore find as a fact that the policeofficer sat near the foot of the Applicant’s bed in the treatment room taking notes, and she did nothing more. [98] None of the remaining facts are really contentious. The evidence showed that the officer was in the treatment room for thetriage assessment of the Applicant by David Flowers, which started at 3:21 a.m. but she took no notes. The officer also stayed in thetreatment room when the medical examination by Dr.

Fitzpatrick took place, which started at 3:31 a.m. The evidence was that while the

triage assessment and medical examination were conducted by the nurse and the doctor there was no objection by the nursing staff, thedoctor, or the Applicant, to her presence in the treatment room. Ms. Murphy agreed that no one told the police officer to leave thetreatment room during the triage and the doctor did not ask to have her removed from the room. [99] On the issue of consent, I accept that the police officer was present in the emergency department treatment room from and after3:20 a.m. with the implied consent of the hospital nursing staff.

In making that finding I place no particular weight on the evidence thatthe presence of police officers may be normal or common at the hospital in the circumstances of a serious motor vehicle accident. Theevidence establishes that the hospital staff implicitly permitted the police officer to be present to observe the Applicant, and there was noobjection from the Applicant. [100] The law supports the conclusion that the passive presence of the police officer with the consent of the hospital is not in itself aviolation of the Applicant’s s. 8 rights. In R. v. Colarusso [1994] 1.

S.C.R. 20 the minority held that the presence of a police officer inthe emergency department to observe the emergency treatment of an individual arrested for impaired driving did not breach the arrestee’sprivacy rights because the police officer has the consent of hospital staff (express or implied) and the presence of the police officer didnot interfere with medical treatment. [101] I find that at 3:31 a.m. when Dr. Fitzpatrick entered the treatment room she saw Constable Charlebois sitting in the chair, and shethen drew the privacy curtain around the Applicant before conducting her medical examination.

The examination took place in an area ofthe hospital that was accessible to other medical staff and patients, but once the privacy curtain was pulled nobody outside the curtaincould see the patient or the doctor, and the Applicant could not see who if anyone was outside the privacy curtain. Dr.

Fitzpatricktestified that she had no involvement with the police officer in the treatment room while she conducted the examination of the Applicant.The officer’s notes made at the time, and the ITO, confirm that she was not only listening to what was being said behind the privacycurtain she was recording the information exchanged between the Applicant and the doctor. [102] The first inquiry is whether this police conduct amounts to a search. Constable Charlebois testified that she was in the treatmentroom at that time to “keep continuity” of the Applicant and the room.

The Crown acknowledged that based on the evidence it would bedisingenuous to argue she was not investigating the Applicant. I have already concluded that the Applicant was not detained by thepolice in the hospital, and he was totally immobilized because of his injuries in the accident, so the officer was not engaged in thepassive observation of a detainee for the preservation of evidence or watching him for safety or security reasons.

I find that the purposeof the officer’s presence in the treatment room was to look for and find incriminating information, including words spoken by theApplicant, to be used as evidence against him, and that her conduct in carrying out that purpose by recording the confidential discussionwas therefore analogous to a search under s. 8. [103] The second enquiry is whether the search conducted by the officer was unreasonable. Conduct which may amount to a search orseizure will not be viewed as unconstitutional unless it violates a reasonable expectation of privacy.

A reasonable expectation of privacyis one which Canadian society would be prepared to recognize as being reasonable. [104] The concern about protecting the reasonable expectation of privacy of patients in a hospital setting in the context of lawenforcement activities is not a new one. In Dyment, the court referred to the vulnerability of injured patients in the hospital, especiallywhile under a doctor’s examination, and referenced the need for the courts to guard against a free exchange of information betweenhealthcare professionals and the police.

The decision of the majority in Colarusso turned on other grounds but the following quote isinstructive: 19 Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., (SCC), [1984] 2S.C.R. 145 [hereinafter Hunter], teaches us that s. 8, like other Charter rights, must be broadly and liberally construed to effect itspurpose. And that purpose, it identified, is to secure the citizen's right to a reasonable expectation of privacy against governmentalencroachments.

The need for privacy can vary with the nature of the matter sought to be protected, the circumstances in which and theplace where state intrusion occurs, and the purposes of the intrusion. That physical integrity, including bodily fluids, ranks high amongthe matters receiving constitutional protection, there is no doubt; see R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945; R. v.Dyment, (SCC), [1988] 2 S.C.R. 417.

Moreover, hospitals have been identified as specific areas of concern in theprotection of privacy, given the vulnerability of individuals seeking medical treatment. [105] I have no difficulty in concluding, on the totality of the circumstances, that the Applicant had a reasonable expectation of privacywith respect to the information he provided to the doctor while he was being examined behind the privacy curtain.

I find that the actionsof the doctor, who owed a duty of doctor-patient confidentiality to the Applicant, signaled to the injured Applicant and to persons outsidethe privacy curtain, including the police officer, that a private and confidential medical examination was underway and there was acommon intention to preserve the privacy of the information. Even if the area was accessible to others, s. 8 protects people and notplaces, and I find that the Charter protection under s. 8 would extend to the protection of the Applicant’s privacy interests in thecircumstances.

I find that the Applicant’s reasonable expectation of privacy aligns with the high value placed on the privacy and sanctityof a person’s personal health information in Canada, and that Canadian society would be prepared to recognize it as being reasonable. [106] I have considered whether the Applicant’s reasonable expectation of privacy might only extend to health information and not toinformation he provided to the doctor about what happened before and leading up to the accident but this in my view would amount to anartificial Charter analysis.

Based on the doctor’s evidence all the information the Applicant provided was part of a medical history sherequired for the medical assessment of the patient. I find it was therefore all covered by the same duty of doctor-patient confidentialityand reasonable expectation of privacy. [107] If it were necessary, I would find that once she drew the privacy curtain around Mr. Murphy prior to conducting her medicalexamination the doctor revoked the implied consent of the nursing staff for the police officer to be present in the treatment room toobserve the Applicant.

I am satisfied however that the implied consent of the nursing staff to observe the Applicant did not, in thecircumstances, extend to allowing the police officer to intercept the information exchanged between the Applicant and the doctor duringa confidential medical examination.

[108] In Collins, the Supreme Court of Canada held that in order for a search to be reasonable and therefore constitutionally valid itmust be authorized by law, the law must itself be reasonable, and the manner in which the search is conducted must be reasonable. Thesearch here was warrantless and its reasonableness must be established by the Crown. [109] I appreciate that this situation evolved quickly, but in my view there was no urgent law enforcement reason, and no legaljustification, for the police officer to continue her investigation by conducting a search in the treatment room.

The search conducted bythe police officer was not authorized by any law or common law police power and it was therefore unreasonable. I therefore find thatthere was a violation of s. 8 as a result of the unreasonable search conducted by the police officer during the Applicant’s medicalexamination in the treatment room. C. Was the Applicant’s blood seized in violation of s. 8 of the Charter? The Applicable Law [110] The third Charter issue I must determine is whether the Applicant’s blood was seized in violation of s. 8 of the Charter.

I willattempt to avoid any overlap in the s. 8 analysis for this issue and I will not refer to the underlying analytical framework. [111] The Supreme Court of Canada first applied the principles in Hunter and Collins to blood sample seizures in R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945. In Pohoretsky the conduct of the police requesting a physician to obtain blood samples for thepolice was found to constitute a seizure, and to be unreasonable because the blood sample was taken by a physician at the request of thepolice from a driver who was incoherent at the time and unable to consent.

In Dyment a blood sample was taken by a physician from afree-flowing wound, for medical purposes, and passed to a police officer who had neither a search warrant nor consent of the driver. Inboth cases the physician was acting an agent of the government and his actions were therefore subject to Charter scrutiny. Dymentconfirmed that there is a reasonable expectation of privacy in a subject’s blood sample, and established the rule that where consent to thetaking of the blood is given, such consent is restricted to its use for medical purposes only, and the hospital would have had nojustification to take th

[…]