2015 NBCA 42, 2015 NBCA 42

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 92-14-CA JOSEPH EDWARD CARTWRIGHT APPELLANT JOSEPH EDWARD CARTWRIGHT APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJEST É LA REINE INTIMÉE Cartwright v. R., 2015 NBCA 42 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green Cartwright c.

R., 2015 NBCA 42 CORAM : l’honorable juge Richard l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: May 2, 2014 (conviction) July 17, 2014 (sentencing) Appel d’une décision de la Cour du Banc de la Reine: le 2 mai 2014 (déclaration de culpabilité) le 17 juillet 2014 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: 2014 NBQB 236 Décision frappée d’appel : 2014 NBBR 236 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: April 21, 2015 Appel entendu : le 21 avril 2015 Judgment rendered: July 9, 2015 Jugement rendu : le 9 juillet 2015

Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Richard The Honourable Justice Green Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondents: Kathryn Gregory Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Green Avocats à l'audience : Pour l’appelant : Margaret Gallagher, c.r. Pour l’intimée : Kathryn Gregory THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by QUIGG, J.A. I.

Introduction [ 1 ] Following a double fatality single motor vehicle accident at Estey’s Bridge, New Brunswick, involving a vehicle Mr. Cartwright was driving, a Provincial Court judge issued a warrant, pursuant to which the police obtained blood samples that had been taken from Mr. Cartwright at the Dr. Everett Chalmers Hospital on the night of the accident. Mr.

Cartwright was charged with having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, while operating a motor vehicle, thus causing an accident resulting in: (1) the death of Kevin Clements; (2) the death of Jacilyn Dionne; and (3) bodily harm to Angel Dawn Newman. He elected to be tried by judge and jury. At the commencement of the trial in the Court of Queen’s Bench, Mr. Cartwright made a motion for an order quashing the search warrant and declarations that his rights pursuant to ss. 8 , 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms had been violated. Mr. Cartwright also sought the exclusion of evidence obtained in the alleged violation of his rights pursuant to s. 24(2) of the Charter . The judge concluded the warrant was properly issued and, overall, the search was a reasonable one. Mr. Cartwright’s motion to quash the warrant was dismissed and he was eventually convicted. Mr. Cartwright appeals his conviction and requests a new trial be ordered. As would be expected, a key issue on appeal is the validity of the search warrant. II. Background

[ 2 ] The trial judge aptly described the facts in his decision on the appellant’s motion to quash the warrant ( 2014 NBQB 236 , 428 N.B.R. (2d) 1), so much so that the parties reproduced that description in its entirety in their submissions. I have borrowed liberally from that decision in setting out what follows. [ 3 ] On July 14, 2012, at approximately 11:15 p.m., Mr. Cartwright was the driver of a vehicle containing three passengers that was involved in a single motor vehicle accident. Two passengers were killed and a third suffered severe injuries. Cpl.

Albert Vincent of the RCMP received a report of the accident at approximately 11:25 p.m. and proceeded to the scene. When Cpl. Vincent arrived, he observed a vehicle in the ditch and debris scattered across the roadway. Mr. Cartwright was in the driver’s seat of the vehicle attempting to exit through the window. Pursuant to Cpl. Vincent’s instructions, Mr. Cartwright sat down on a nearby embankment. Cpl. Vincent was focused on securing the accident scene and attempting to locate the other occupants of the vehicle. [ 4 ] At approximately 11:20 p.m., Cst. Juanita Peddle received a call regarding the accident.

She arrived at the scene at approximately 11:45 p.m. Upon her arrival, she observed a baby seat, beer cans and debris from the vehicle on the roadway. Cst. Peddle spoke to a witness who informed her there was a female passenger, who appeared to be dead, in the back passenger side seat. As the witness was distraught, Cst. Peddle asked Cpl. Vincent if Victim Services could be contacted to provide assistance. Another Constable, J.S. Pigeon, was searching for potential additional passengers with an infrared camera and discovered Kevin Clements lying in the ditch.

Cst Peddle proceeded to assist him and noticed that Mr. Clements had a “gurgling respiration”. Cst. Peddle called for the paramedics and then went back to the roadway to speak to Cpl. Vincent (para. 4). Cpl. Vincent advised Cst. Peddle that he was the first police officer at the accident scene and had witnessed the driver in the driver’s seat. He also told Cst. Peddle that, in addition to the normal smells of fuel, smoke and rubber, he could smell an odour of alcohol from Mr. Cartwright, but could not determine if it was emanating from Mr.

Cartwright’s clothing or his breath as there was beer all around the accident scene. Cpl. Vincent advised Cst. Peddle that Mr. Cartwright had been placed in the ambulance. [ 5 ] At approximately 12:00 a.m., Cst. Peddle entered the ambulance where Mr. Cartwright was lying on a spine board, with head blocks, a neck brace, and three straps restricting his movement. Mr. Cartwright had a mask lying on, but not fastened to, his face. Paramedics were attending to and asking questions of Mr. Cartwright. Cst. Peddle asked Mr. Cartwright his name and how many people were in the car. She had to lean close to Mr.

Cartwright to hear him and to fix the mask that kept falling away from his face. As she was doing this, Cst. Peddle noticed the smell of alcohol on Mr. Cartwright’s breath and a dry white substance around his mouth which, in her experience, was an indication of dry mouth consistent with alcohol consumption. At this point, Cst. Peddle read Mr. Cartwright the Motor Vehicle, R.S.N.B. 1973, c. M-17 / Off-Road Vehicle Act , S.N.B. 1985, c.

O-1.5, compulsory reporting caution [the MVA Caution] and the standard police caution [the Police Caution] as follows: I am not at this time seeking an accident report from you pursuant to the provisions of the Motor Vehicle Act . Therefore, you are under no compulsion to answer my questions. If I do decide to take an accident report from you later, I will clearly inform you. Do you understand? You need not say anything. You have nothing to hope from any promise of favour, nothing to fear from any threat whether or not you say anything. Anything you say may be given into evidence.

Do you understand? [ 6 ] These Cautions were read at 12:07 and 12:08 a.m. respectively. According to Cst. Peddle, Mr. Cartwright appeared to understand these Cautions, but he was upset, “his adrenaline was running”, and he kept “sputtering out things” inquiring about his girlfriend. He said he and friends were driving back from Stanley, he had consumed two [beer] earlier, Kevin Clements had been in the backseat of the car “pinging” his ear, he had turned around and when he turned back, he saw lights and swerved to avoid them. Cst.

Peddle testified that it was at this point she formed reasonable and probable grounds to arrest Mr. Cartwright. At 12:10 a.m., Cst. Peddle read Mr. Cartwright a blood demand in the following form: I am Constable Peddle, a peace officer. I have reasonable and probable grounds to believe that you have committed an offence under

section 253 of the Criminal Code of Canada as a result of the consumption of alcohol, and that by your physical condition you may be incapable of providing a sample of your breath or it will be impractical to obtain a sample of your breath, and I therefore demand that you accompany me to the DECH, and there to give such a sample of your blood to or under the direction of a qualified medical practitioner as are necessary to enable proper blood analysis for me in order to determine the concentration, if any, of alcohol in your blood. Do you understand?

I wish to inform you that the sample of your blood will be taken only if the qualified medical practitioner is satisfied that your life or health will not be in danger. I also wish to inform you that the blood sample provided may be tested for the presence of drugs. [ 7 ] Cst. Peddle testified on cross-examination she would normally have given the MVA Caution and then the Police Caution, right to counsel and blood demand in that order, but usually these are given “all at once”. In this case, she gave the blood

demand prior to the right to counsel. However, after Cst. Peddle gave the blood demand, the paramedics advised they had to leave for the hospital. As a result, Cst. Peddle was, in her words, “pretty much unable to speak to” Mr. Cartwright regarding his legal situation until much later. She was sure, however, she asked no questions concerning the investigation during the ambulance ride to the hospital. As an aside, Cst. Peddle had worked as a paramedic before joining the RCMP. [ 8 ] Once at the hospital, Mr. Cartwright was placed in an acute care bed with drapes drawn around it. According to Cst.

Peddle, nurses and medical staff began working on Mr. Cartwright and she was unable to speak to him while the medical personnel were attending to him. A second ambulance arrived with Kevin Clements and most of the medical personnel working on Mr. Cartwright left to attend to Mr. Clements. A nurse remained with Mr. Cartwright. At 12:52 a.m., a blood sample was taken from Mr. Cartwright for medical purposes. Later, in the Information to Obtain, sworn in support of the request for the warrant, Cst.

Peddle stated she did not observe collection of the blood sample but learned of it from the attending nurse a short time later. On cross-examination at the preliminary inquiry, Cst. Peddle testified she was inside the room and witnessed the nurse draw the blood. There is some resulting confusion in the evidence regarding this. [ 9 ] At some point, Cst. Peddle informed hospital staff she had made a demand for blood on Mr. Cartwright. Cst. Peddle testified she had contacted Cpl. Vincent and asked him to locate and bring a blood kit to the hospital. Cpl. Vincent’s evidence was that he did not recall Cst.

Peddle inquiring about a blood kit. Again there was some confusion and contradiction in Cst. Peddle’s testimony regarding whether or not she asked the hospital staff where a blood kit could be located. Regardless, Cst. Peddle did not locate a blood kit and did not proceed with obtaining a blood sample pursuant to the blood demand. [ 10 ] It was later decided that Mr. Cartwright should be x-rayed. Cst. Peddle accompanied him to the x-ray department and asked him about the ownership of the vehicle as it had P.E.I. plates. Mr.

Cartwright explained that he had purchased the vehicle a few days earlier and he had not had time to register the vehicle or have it insured. He was medically discharged at 3:21 a.m. At that time, Cst. Peddle placed him under arrest for impaired driving causing death, informed him of his right to retain counsel and his right to remain silent, and provided Mr. Cartwright with her personal cellular phone so he could contact legal counsel. Cst. Peddle then released Mr. Cartwright into the custody of Cst. Peter Lach. Mr. Cartwright assisted Cst.

Lach in attempting to locate Kevin Clements’ next of kin, and was later taken to the Oromocto RCMP detachment where he provided a cautioned statement to Cst. Lach. [ 11 ] At the conclusion of a voir dire, the trial judge denied Mr. Cartwright’s motion to quash the warrant. Furthermore, he was not satisfied there had been a breach of Mr. Cartwright’s ss. 8 , 10(

a) or 10(

b) Charter rights and dismissed his motion with respect to these sections. III. Grounds of Appeal [ 12 ] Mr. Cartwright submits the trial judge erred in law: (

a) in his determination of the time of Mr. Cartwright’s detention; (

b) by allowing the admission of evidence obtained in violation of Mr. Cartwright’s rights as guaranteed by s. 10(

a) of the Charter ; (

c) by allowing the admission of evidence obtained in violation of Mr. Cartwright’s rights as guaranteed by s. 10(

b) of the Charter ; (

d) by allowing the admission of evidence obtained in violation of Mr. Cartwright’s rights as guaranteed by s. 8 of the Charter . IV. Analysis [ 13 ] The central issues in this case are: (1) the determination of the time of Mr. Cartwright’s detention; and (2) whether the trial judge erred in failing to find a violation of Mr. Cartwright’s rights, as guaranteed by the Charter .

A. Time of Detention [ 14 ] Both parties agree the trial judge correctly stated the law as it relates to the issue of detention. The point arises because an officer’s obligations under ss. 10(

a) and (

b) of the Charter are triggered the moment a suspect is arrested or detained. Thus, the moment of detention helps to determine whether an accused’s rights under these sections are upheld. In R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 and R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460, the Supreme Court set out the factors relevant to the determination of the point of detention as it relates to the Charter . The principles can be distilled as follows: 1. The test to determine when detention crystallizes is an objective one. 2.

Detention refers to the suspension of an individual’s liberty interests by physical or psychological restraint. 3. Physical restraint is obvious; psychological restraint is defined as: a legal obligation to comply, or where a reasonable person would conclude by reason of the state conduct that he or she has no other choice but to comply. 4. To determine whether a reasonable person would conclude that they have no choice but to comply, the following factors are relevant:

a) the circumstances giving rise to the encounter with the police, as reasonably perceived by the individual; particularly where the police are conducting general inquiries or targeting an individual for “focused investigation”;

b) the nature of the police conduct, including language used, physical contact, location, presence of others, and duration of encounter; and

c) the particulars of the individual in question, including age, physical stature, minority status, and level of sophistication. [ 15 ] The parties do not agree, however, as to whether or not the trial judge correctly applied the law to the facts in this case. In Grant , the Supreme Court says: Whether the individual has been deprived of the right to choose simply to walk away will depend, to reiterate, on all the circumstances of the case. It will be for the trial judge to determine on all the evidence.

Deference is owed to the trial judge's findings of fact, although application of the law to the facts is a question of law. [para. 43] [ 16 ] Therefore, the standard of review when determining the point of detention is correctness where there is no controversy over the facts. A review of the trial judge’s 30-page decision reveals he undertook a complete analysis of all of the evidence respecting the point of detention. In his decision, the judge concluded that detention crystallized at 12:10 a.m. This was the point when Mr. Cartwright provided sufficient information to Cst.

Peddle to enable her to link him to a possible criminal act based on reasonable and probable grounds; that is, he was the driver of a vehicle involved in a fatal accident while he may have been impaired. Prior to 12:10 a.m., Cst. Peddle was “orienting herself to the situation”, “sorting out the situation”, and “engaged in a general inquiry” (see Suberu , at paras. 31-32 ). [ 17 ] The trial judge accepted Cst. Peddle’s testimony that she did not believe she had the grounds to arrest Mr. Cartwright until 12:10 a.m.

In Suberu , the Court articulates “[o]ne must ask a number of preliminary questions to determine how to proceed thereafter. Until that information was obtained as to a possible criminal offence and who the party was, no detention or arrest or rights to caution, in my view, were required” (para. 30). [ 18 ] It is clear from the record that until Mr. Cartwright told Cst. Peddle that he had two [beer] earlier, Kevin Clements was in the back seat “pinging” his ear and he had turned around and when he turned back he saw lights and swerved to avoid them, Cst.

Peddle did not have sufficient information to believe a possible criminal offence had occurred. Therefore, detention had not crystallized prior to this point. As the Crown states in its written submission: Even if the officer had suspected at that time that a criminal offence had in fact occurred, Suberu marks the detention line as follows: “The evidence was that it occurred to Constable Roughley that this man might be involved. However, on the officer’s evidence, he did not at that time believe he had sufficient information to act on his suspicion by detaining Mr. Suberu.” [para. 17]

[ 19 ] Mr. Cartwright states the trial judge’s use of the words “reasonable and probable grounds for arrest” is indicative of the trial judge applying the officer’s subjective opinion to the determination of when detention crystallized. This overlooks the previous analysis undertaken by the trial judge applying all the factors identified by the Supreme Court to determine the point of detention on an objective basis. Further, the trial judge goes on to conclude “that Mr. Cartwright was not detained and could not have reasonably believed that he was detained at the time that he made the impugned statements to Cst.

Peddle” (para. 32). Regardless of the words used by the trial judge to determine when the point of detention crystallized, the facts objectively support the officer’s subjective belief as to when detention occurred. I, therefore, find no error on this point. B. Admission of the blood analysis evidence [ 20 ] At 12:10 a.m., Mr. Cartwright was a detained person who had not yet been advised of his Charter rights; in particular, his right to be informed of the reasons for detention and his right to consult with counsel upon detention under ss. 10(

a) and ( b ). The trial judge correctly found, however, these rights were not breached. At 12:52 a.m., blood was taken from Mr. Cartwright by a nurse employed by the hospital. Cst. Peddle abandoned her blood demand when she was unable to obtain a blood kit. The blood taken by the nurse was later seized by warrant and used at trial as evidence against Mr. Cartwright. As the trial judge states: […] I am not satisfied that it was reasonable to expect that Constable Peddle could inform Mr. Cartwright of his right to counsel while he was under the care of medical personnel.

However, even if that was the case, nothing turns on it. No questions were asked by Constable Peddle of Mr. Cartwright which would further the investigation, and thus there are no statements which would be affected by such a Charter breach. Furthermore, the blood in question was not drawn pursuant to the blood demand. A breach of Mr. Cartwright's

section 10 Charter rights might impugn blood taken pursuant to the blood demand, but it would have no effect on the "hospital blood". The blood in question was drawn for medical purposes unrelated to police conduct. There is no indication that medical staff were working in concert with or as the agents of the police in drawing the hospital blood. [para. 31] [ 21 ] Mr. Cartwright relies heavily on R. v. Taylor , 2014 SCC 50 , [2014] 2 S.C.R. 495, a case where the Court found blood evidence had been properly excluded.

The trial judge concluded the facts in Taylor are distinguishable from those in this case and, as a result, Taylor does not apply. At the time of trial, the judge only had the Alberta Court of Appeal decision, which overturned the conviction and entered an acquittal based on the exclusion of the blood analysis evidence. The Supreme Court decision, affirming the Alberta Court of Appeal decision, was released after trial. [ 22 ] In Taylor , the Crown appealed from a judgment of the Alberta Court of Appeal setting aside Mr. Taylor’s conviction for impaired driving causing bodily harm.

After he was involved in a car accident, Mr. Taylor was informed by the police of his rights protected by the Charter , including his right to counsel, and asked whether he wished to call a lawyer. Mr. Taylor advised he wanted to speak to both his father and to his lawyer. He was then taken to the hospital by ambulance. At the hospital, a nurse took five vials of blood from Mr. Taylor while he was being observed by two officers. Further blood samples were taken at the request of police. At no point during Mr.

Taylor’s time in the hospital did the police attempt to provide him with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically feasible. The following day, the police applied for a warrant to seize the first five vials of blood. The analysis of both sets of blood samples indicated that, at the time of the accident, Mr. Taylor had more alcohol in his blood than was lawfully permitted. At trial, the judge agreed with the Crown that there was a s. 10 (

b) breach when the police made a demand for the second set of blood samples without implementing Mr. Taylor’s right to counsel, but concluded that there was no breach of Mr. Taylor’s s. 10 (

b) rights prior to the first set of blood samples being taken. He also found that no phone needed to be provided at the accident scene. As for the hospital, the trial judge assumed that, where an accused was waiting for or receiving emergency medical treatment, there was no reasonable opportunity to provide private access to a telephone to implement the accused’s right to instruct counsel.

A majority of the Court of Appeal allowed the appeal, finding that the trial judge erred when he concluded there was no reasonable opportunity to facilitate access to a lawyer prior to the taking of the first set of blood samples. [ 23 ] The Crown appealed this decision. The Supreme Court determined the police had a duty to provide telephone access as soon as practicable to reduce the possibility of accidental self-incrimination, and a duty to refrain from eliciting evidence from the individual before access to counsel had been facilitated.

There was virtually no evidence about what logistical or medical barriers stood between Mr. Taylor and a phone call to his lawyer. Once arriving at the hospital, it was 20 to 30 minutes before any blood was taken from Mr. Taylor, more than enough time for the police to make inquiries as to whether a phone was available or a phone call was medically feasible. The Supreme Court determined an individual who enters a hospital to receive medical treatment is not in a “ Charter - free zone” (para. 34).

Given the circumstances, namely that the individual had requested access to counsel and was in custody at the hospital, the police had an obligation under s. 10(

b) of the Charter to take steps to ascertain whether private access to a phone was available. The Supreme Court concluded “the seriousness of the C harte r breach and the impact of the police conduct on Mr. Taylor’s interests [were] such that the admission of the evidence would so impair public confidence in the administration of justice as to warrant exclusion of the evidence” (para. 42).

[ 24 ] As found by the trial judge, Taylor can be distinguished from this case. In the case before us, the trial judge correctly highlights that the issue is the admissibility of blood evidence obtained pursuant to a medical procedure and not pursuant to a blood demand. If the record in this case had demonstrated, as it did in Taylor , that the blood evidence was obtained by a medical procedure intentionally directed by the police in dereliction of the duty to advise of Charter rights, the results should be the same as Taylor .

But, in this case, the trial judge distinguished Taylor as follows: In my view, the facts in Taylor are clearly distinguishable from the circumstances of the present case. The facts in Taylor resemble those here in that the accused in both cases provided blood to the hospital before their

section 10 (

b) rights were implemented. However, in Taylor , it was found that the police deliberately waited until after the hospital had drawn blood to make a blood demand on the accused. In fact, the police were standing beside the nurse while the blood was drawn (see paragraph 26) and one officer testified that the reason she was at the hospital was specifically to obtain the “hospital blood” (see paragraph 29).

The Alberta Court of Appeal found in that case that: [T]he police hovered over the appellant and the hospital personnel to gather evidence from him at a time when the police knew they had not provided him with access to counsel, nor even yet made a demand for blood (para. 26) . . . [T]he police were quite prepared to rely on medical personnel at the hospital to gather evidence on their behalf. They were content to have the hospital staff serve as their agents (para. 30).

In that case, then, there appeared to be the intent on the part of the police to hold off on presenting the blood demand and on facilitating the accused’s contact with counsel until after the “hospital blood” had been drawn. In the present case the blood demand was read prior to the drawing of the “hospital blood” and the fact that Constable Peddle tried to locate a police blood kit suggests that she tried to facilitate the drawing of blood for forensic purposes, rather than simply deciding from the beginning to rely on the “hospital blood” as in Taylor .

For those reasons I do not find Taylor to be persuasive in this case. [paras. 25-26] [ 25 ] Mr. Cartwright alleges that the police used medical personnel to further the police investigation; this was not accepted by the trial judge, who states: “[u]nlike the Court in R. v. Taylor , I cannot conclude from the evidence that there was any scheme or plan on the part of the police to have medical blood drawn as a substitute for blood pursuant to a blood demand” (para. 51). In his written submission, Mr. Cartwright also advances “Cst.

Peddle informed the hospital he had consented to the taking of blood” and “she advised medical personnel that [he] had agreed to give blood”. One might read from this that Cst. Peddle informed the hospital personnel of Mr. Cartwright’s consent so they would proceed and take the blood on behalf of the police. A review of the record reveals the only reference to Cst. Peddle advising the medical personnel of Mr. Cartwright’s agreement to give blood was made while she was being cross-examined. Cst. Peddle did not inform the hospital of Mr.

Cartwright’s agreement to support them taking blood for police purposes, but only in the context of her looking for a blood kit from the hospital: Q: Ok. So to come back to my question, you didn’t ask the nurse or the personnel there for a kit? A: I did not ask security guards, no. Q: So, when you qualified your question did not the security guard, did you ask the nurse? A: I can’t say, I don’t know. Q: You don’t recall? A: I don’t, I don’t remember if I woulda asked the nurse or not.

Like I said, in Moncton I woulda asked the nurse, so I would never, I wouldn’t have thought about the security guards, so I’m not sure if I asked the nurse or not. Q: ok.

A: I would have informed them that he did agree to give me blood, but ask for a kit, I don’t know. [Transcript, February 7, 2014, p. 96- 97] [ 26 ] In my view, the trial judge also correctly dismissed the argument that blood results were obtained in violation of Mr. Cartwright’s rights pursuant to provincial health legislation and pursuant to his s. 8 Charter right against unreasonable search and seizure. In relation to the privacy right guaranteed by provincial legislation, the trial judge again distinguished Taylor on the facts: Before leaving the discussion of R. v.

Taylor I will address one other aspect of the case which the accused has raised in argument. In Taylor the court concluded that the hospital blood sample taken from the accused and other information provided to the police by medical staff was obtained contrary to the privacy provisions of the Alberta Health Information Act and thereby constituted a violation of s. 8 of the Charter . The accused relies on Taylor and argues that Constable Peddle obtained personal and private information concerning Mr. Cartwright from the medical records without his consent contrary to the privacy provisions contained in

section 8 of the [ Health ] Service Act . The accused argues that the blood sample, medical records and evidence obtained as a result thereof are the fruit of an unreasonable search and seizure. Again, clear factual distinctions must be made between Taylor and the present case. In Taylor the court found that the hospital allowed the police to work “side-by-side with medical personnel engaged in a medical procedure” and therefore failed in its duty to respect the accused’s privacy.

In the present case, Constable Peddle contacted the records custodian of the hospital and asked whether the hospital still had the blood sample and confirmed that medical records existed with respect to Mr. Cartwright’s hospital visit. Constable Peddle’s inquir[i]es and the information she obtained were confined to confirming the existence and location of the blood sample and medical records. This can hardly be considered private and confidential information in the circumstances. In my view, there was no violation of either the Health Services Act or

section 8 of the Charter . [para. 27] [Emphasis in original.] [ 27 ] A further ground of appeal is that there was a violation of Mr. Cartwright’s s. 8 Charter rights by virtue of a flawed Information to Obtain [ITO]. I disagree. Mr. Cartwright’s complaints respecting the ITO were that when requesting it, Cst. Peddle neglected to inform the issuing judge that medical personnel had not been advised of the blood demand. On the appeal, Mr. Cartwright argues the converse. He submits that Cst. Peddle did not inform the issuing judge that she had told medical personnel of the blood demand.

This all arises out of the confusion referred to earlier respecting some of Cst. Peddle’s testimony. In any case, the trial judge provided a detailed analysis of why he was unable to accept that argument. If indeed these concerns amounted to flaws in the ITO, they are so insignificant the warrant would have issued regardless. [ 28 ] As such, there is no merit to this ground of appeal. The warrant was valid, there being no scheme by the police akin to Taylor to rely on the hospital blood, and the blood analysis evidence was properly admitted, there being no breach of Mr. Cartwright’s Charter rights. V.

Disposition [ 29 ] For these reasons, I conclude the judge did not err in his analysis. I would, therefore, dismiss the appeal. ____________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _________________________ J.C. MARC RICHARD, J.A.

_________________________ BRADLEY V. GREEN, J.A.