R v Ouellette, 2023 ABKB 342

Court of King’s Bench of Alberta Citation: R v Ouellette, 2023 ABKB 342 Date: 20230606 Docket: 220460919S1 Registry: Edmonton Between: His Majesty the King Crown/Appellant - and - Sheena Noeleen Ouellette Accused/Respondent _______________________________________________________ Decision of the Honourable Justice S.E. Richardson _______________________________________________________ Appeal from the

Summary Conviction by The Honourable Justice O. Shoyele Dated the 26 th day of July, 2022 (Docket: 220460919P1) 1. Introduction [ 1 ] Can police legally obtain information regarding the consumption of drugs and alcohol from a driver of a vehicle involved in

a collision when the driver is responding to a question from a medical professional and receiving medical treatment in an ambulance? That is the question at the heart of this appeal. [ 2 ] On July 25, 2022, after a voir dire , the Honourable Justice Shoyele (the Trial Judge) held that the police breached Respondent’s s 8, 9, 10(a), and 10(

b) rights pursuant to the Canadian Charter of Rights and Freedoms , the Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 ( Charter ). At issue were statements made by the Respondent in an ambulance to an emergency medical technician (EMT) regarding the consumption of intoxicating substances (the Statements). The Trial Judge determined that the Statements were unconstitutionally obtained by the investigating officer and should be excised from the investigating officer’s Information to Obtain (ITO).

The ITO resulted in a judicially authorized search warrant pursuant to s 487 of the Criminal Code , which authorized the investigating officer to seize blood taken from the Respondent at the hospital for medical purposes (the warrant). Once the Statements were excised from the ITO, the Trial Judge determined that the issuing Judge could not have issued the warrant on the basis of the information that remained.

The trial Crown elected to call no further evidence and invited dismissal of the charges. [ 3 ] The Appellant Crown seeks an order setting aside the Trial Judge’s decision regarding the Statements and new trial. Regardless of the outcome on this

summary conviction appeal, the Crown requested a written decision as the issue is one that frequently arises in criminal driving cases. 2. Facts [ 4 ] On July 22, 2021, the Respondent was charged with operating a conveyance while impaired by drugs, contrary to ss 320.14(1)(

a) and 320.14(1)(

c) of the Criminal Code , RSC 1985, c C-46 ( Criminal Code ) and possession of a controlled substance contrary to s 4(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 ( CDSA ). The Appellant is not seeking to appeal the dismissal of the CDSA charge. [ 5 ] The Respondent was operating a motor vehicle that was involved in a collision after the Respondent ran through a red light. Emergency Medical Services, Edmonton Fire Department, and two police officers attended the scene. The investigating officer and his partner arrived at approximately 1751 hrs.

Before police arrived, the Respondent was taken into an ambulance for medical treatment by an EMT. As a result of the collision and possible injuries, the Respondent was on her back and strapped by a multi point harness to a stretcher rendering her immobile. [ 6 ] A civilian witness to the collision told the investigating officer that the Respondent was impaired. The investigating officer entered the ambulance with the suspicion that this may be an impaired driving investigation.

The EMT informed the investigating officer that the collision might be related to alcohol or drugs. [ 7 ] The investigating officer left the ambulance to take pictures of the scene as part of his investigation. He then travelled in the ambulance with the Respondent to the hospital in order to arrest her. [ 8 ] On the way to the hospital, the EMT asked the Respondent several questions relating to the Respondent’s medical history, demographic information, emergency contacts and the events of the day, including whether the Respondent had consumed any alcohol and/or drugs.

The Respondent admitted to having one cooler and cocaine. The EMT noted that the Respondent’s behaviour was consistent with GHB consumption and asked the Respondent if she had consumed GHB. The Respondent confirmed that she had consumed GHB. [ 9 ] The investigating officer did not ask the Respondent any questions and said nothing to her or the EMT while he was in the ambulance during transport to the hospital. He was physically present in the ambulance, heard the conversation between the Respondent and the EMT, and recorded the questions and answers in his notebook contemporaneously.

The investigating officer did not ask the EMT to disclose information about the nature of the Respondent’s injury or illness including any observations of possible impairment. [ 10 ] Both the EMT and the investigating officer testified that that the Respondent lost consciousness multiple times while being transported to the hospital. There is no evidence that the Respondent was aware that the Constable was in the ambulance when she was being transported.

The investigating officer did not interact with the Respondent in the ambulance, and the Respondent’s position, restrained on the stretcher, meant she was not able to visual take in all her surroundings. The EMT was the person in close proximity to the Respondent. [ 11 ] At 1812 hrs, the ambulance arrived at the hospital. At this time, the Respondent was staying awake, so the investigating officer placed her under arrest and read to her from his notebook the standard Charter rights and Caution.

The Respondent confirmed that she understood what she was being charged with, the police caution, and her right to speak to a lawyer.

The investigating officer then spoke to a member of the Edmonton Police Services impaired driving unit for 3 to 5 minutes to confirm whether a blood demand would be appropriate in the circumstances. [ 12 ] At 1848 hrs, the investigating officer watched an emergency room nurse draw blood from the Respondent (the hospital blood). [ 13 ] At 2030 hrs, the investigating officer gave the Respondent the free legal aid number and stepped outside of the treatment room to give the Respondent privacy to contact a lawyer. [ 14 ] The investigating officer included the Statements in his ITO for the warrant.

The Honourable Justice Moher granted the warrant, and police seized the hospital blood. 3. Issues

[15] The Appellant raises the following grounds of appeal: i. The trial Judge erred in finding a s 8 Charter breach, specifically in finding that (

a) there was a state actionamounting to a seizure, and (

b) the seizure was unreasonable. ii. The Trial Judge erred in finding s 10 Charter breaches while the Respondent was in the ambulance,specifically in finding that (

a) police detained the Respondent in the ambulance, and (

b) upon detention police did not immediatelyinform the Respondent of her Charter rights. [16] While the Appellant did not raise a ground of appeal relating to the Trial Judge’s analysis under 24(2) of the Charter, giventhe grounds of appeal that the Appellant has raised, I have also considered the Trial Judge’s analysis on whether to exclude the evidenceresulting from the Charter-infringing state conduct. 4. Standard of Review [17] The standard of review for findings of fact or an inference drawn from proven facts is palpable and overriding error: Housen vNikolaisen, 2002 SCC 33 at paras 10, 23 [Housen].

Palpable and overriding error is an error that is plainly seen: Housen at para 6. Onpure questions of law, the standard of review is correctness.

On a pure question of law an appellate court can replace the opinion of thetrial judge with its own: Housen at para 8. [18] Where there is an application of a legal test to the facts, the question involves mixed fact and law and is reviewed on astandard of palpable and overriding error unless there is an extricable error in principle to which correctness applies: Housen at paras 26– 37. [19] The application of law to the facts to determine whether a Charter breach occurred is a question of law and reviewable forcorrectness: Housen at para 33; R v Shepherd, 2009 SCC 35 at para 20.

If there is no palpable and overriding error in the findings offact, the determination of whether there was a Charter breach is a question of law and is reviewed on a standard of correctness: R vGrant, 2009 SCC 32 at para 43; R v Lafrance, 2022 SCC 32 at para 23. [20] I find that all issues under this appeal are reviewable under the standard of correctness. 5.

Analysis Issue #1: Did the trial Judge err in finding a s 8 Charter breach? [21] The Appellant argues that the Trial Judge erred in finding that the investigating officer’s actions in the ambulance amountedto an unreasonable search or seizure from the Respondent. The Appellant submits that the Trial Judge erred in his finding that when theinvestigating officer recorded the Statements in his notebook, he created a permanent record of the Statements and was no longer apassive observer.

The Appellant submits that the investigating officer’s mere presence in the ambulance is not state conduct that raisesCharter concerns. Further, while the investigating officer had a duty to make notes during his investigation, he was not activelyinvestigating while he was in the ambulance with the Respondent. The Appellant further argues that while the Trial Judge stated thecorrect test for examining objective reasonableness, he applied it incorrectly.

As such, even if there was state action by the investigatingofficer in recording the Statements in his notebook, there was no seizure because the Respondent did not have an objectively reasonableexpectation of privacy in the ambulance. [22] The Respondent argues that the Trial Judge correctly held that the Respondent had a reasonable expectation of privacy in theStatements and the investigating officer’s cumulative acts while in the ambulance with the Respondent constituted state action.

TheRespondent further argues that the Trial Judge made no error in determining that she had a reasonable expectation of privacy in herinteractions with the EMT, and the investigating officer’s actions infringed upon that privacy.

A) State Action [23] The first step in the analysis of an alleged

section 8 Charter violation requires the Respondent to establish that the disputedstate action constituted a search or seizure. To establish this, the Respondent must demonstrate that the state action, on the totality ofcircumstances, invaded the Respondent’s reasonable expectation of privacy: R v Tessling, 2004 SCC 67 [Tessling]. [24] The Trial Judge did not conduct an analysis into whether the investigating officer’s actions in the ambulance were stateactions to which s 8 of the Charter may apply. Therefore, I must conduct the analysis. [25]

Section 8 of the Charter is only engaged where there is state action: R v King, 2021 ABCA 271 at para 4. State actors aresubject to restrictions on intrusions into personal privacy, which include a legal basis for the search or seizure in statute or common law,prior judicial authorization, and reasonable and probable cause: R v Kang-Brown, 2008 SCC 18 at para 10. [26] In R v LaChappelle, 2007 ONCA 655, leave to appeal denied (SCC) [LaChappelle], the Appellant wasdriving while impaired when his vehicle collided with another one, killing the other driver.

The Appellant argued that the investigatingofficer violated his right to privacy and unlawfully seized information by observing his interaction with ambulance personnel. The Courtheld that there was no state action by the investigating officer. The mere fact that the officer accompanied the Appellant in theambulance did not constitute state action even if the Appellant had a reasonable expectation of privacy. The Court made thatdetermination based on the following:

• The Appellant’s one-word answers or gestures did not convey any kind of confidential information (paras 34 – 36); • The police officer was a passive observer. The officer did not question or elicit any information from the Appellant in theambulance (para 36); • The Appellant had no property interest in the ambulance and no control over it.

The officer had implied consent from ambulance’smedical personal to be present in the ambulance (para 37); • Passive observation by the officer was proportionate to the seriousness of the situation (para 38). [27] In this case, unlike in LaChappelle, the Respondent clearly answered the EMT’s questions regarding her health, lifestyle, anddrug and alcohol consumption, which was recorded by the investigating officer as part of an active investigation. [28] I find that the investigating officer’s actions in the ambulance did amount to state action.

The investigating officer was apolice officer on duty who was investigating the collision. The investigating officer rode in the ambulance because he was planning onarresting the Respondent. While the investigating officer was in the ambulance and before arresting the Respondent, he was conductingan investigation.

While the Trial Judge did not engage in this analysis, there is no error in the Trial Judge’s finding that the investigatingofficer stopped being a passive observer when he started to proactively make notes, and that those notes were a form of permanentrecord for subsequent use in the criminal investigation.

B) Search or Seizure [29] The Trial Judge did not address whether the investigating officer seized the Respondent’s private health information byrecording the Statements in his notebook. His analysis of whether there was a seizure within the meaning of s 8 of the Charter centeredaround the Respondent’s reasonable expectation of privacy in the Statements. Therefore, I must conduct the analysis. [30] A search is connected to the concepts of intrusion, examination, and lack of consent. The word intrusion implies a lack ofconsent, and the word search implies an examination.

These concepts accord with the right protected by s 8 of the Charter as “the rightof the individual to the reasonable expectation that his privacy will not be intruded upon by government in order to advance its goals:” Rv Enns (1987), 85 AR 7 (Alta Prov Ct) at para 9; R v Nunn, 2015 ABPC 38 at para 39. [31] A search includes state action that seeks tangible or intangible information.

Intangible information can include electronicmaterial (R v Morelli, 2010 SCC 8), internet usage (R v Spencer, 2014 SCC 43 [Spencer]), electronic conversations (R v Marakah, 2017SCC 59 [Marakah]), and even scents (R v Evans, (SCC), [1996] 1 SCR 8). [32] A seizure is defined as “taking of a thing [including information] from a person by a public authority without that person’sconsent”: R v Law, 2002 SCC 10 at para 15. The state’s “taking” does not have to be directly from the person whose Charter rights areaffected.

In R v Cole, 2012 SCC 53 [Cole], the Court held that a person who lawfully acquires information and later discloses thatinformation to the state does not transfer its authority to the state for the purposes of a criminal investigation: The fact that the school board had acquired lawful possession of the laptop for its own administrative purposes did not vest in the policea delegated or derivative power to appropriate and search the computer for the purposes of a criminal investigation (para 67). [33] In the context of this case, the principle in Cole can be re-stated as follows: the fact that the EMT had acquired lawfulpossession of the Respondent’s person health information for their own medical treatment purposes did not vest in the police a delegatedor derivative power to appropriate and seize that information for the purposes of a criminal investigation. [34] In R v Hagen, 2016 ABPC 109 at para 42 [Hagen], the Court found that the investigating officer’s presence in the ambulancewas for the purpose of maintaining control and continuity over the Accused, and that there was no element of “examination” by theofficer.

However, the Court did allow the officer’s observations, including the Accused’s answers to the EMT’s questions about alcoholconsumption to be used to assess the officer’s reasonable and probable grounds to arrest the accused, but not to prove impairment. [35] While s 40.1(2)(

c) of the Emergency Health Services Act, SA 2008, c E-6.6 (EHSA) permits an ambulance attendant todisclose any observation of possible impairment to a peace officer, in this case, the Trial Judge held that the investigating officer was notacting under s 40.1(2)(

c) of the EHSA. This was so because the investigating officer did not request from the EMT information about thenature of the Respondent’s injury or illness including any observations of possible impairment. [36] I conclude that the investigating officer did seize the Respondent’s personal health information when he recorded theStatements in his notebook. While the officer did not “examine” the Respondent, he did acquire the Respondent’s personal informationthat was lawfully in the hands of the EMT without the Respondent’s consent.

C) Reasonable Expectation of Privacy [37] The Appellant submits that the Trial Judge erred in his conclusion that the Respondent had a reasonable expectation ofprivacy in the Statements. As such, the Trial Judge erred in finding that there was a search or seizure that engages the Respondent’s s 8Charter rights. The Respondent submits that the Trial Judge made no such error. [38] The Appellant concedes that the Trial Judge made no error in his articulation of the law.

The Appellant submits the errorarose in the Trial Judge’s analysis. [39] In response to the four lines of inquiry into whether the Respondent held a reasonable expectation of privacy in the Statementsas outlined in Cole at para 9, the Trial Judge found the following: 1. The subject matter of the search was the Respondent’s personal health information that is biographical in nature.

2. The Respondent had a direct interest in the subject matter of the search because the information was about her contact information,consumption of prescribed medication, and the use of illicit drugs. 3. There was no evidence of the Respondents’ subjective expectation of privacy in the subject matter. Based on the Respondent’sCharter challenge, the Trial judge inferred that she had a subjective expectation of privacy in the subject matter given the nature of thepersonal information she provided. 4.

Section 40.1(2)(

c) of the EHSA recognized privacy rights within an ambulance space. Thus, notwithstanding that the Respondent’smedical information was made or provided to the EMT within the confines of an ambulance, the Respondent had a reasonable thoughdiminished expectation of privacy in the subject matter of the search. The trial Judge considered several factors: (

i) the Respondent, as apatient, should generally expect that her privacy is protected; (ii) The Respondent’s personal medical information was disclosed to theEMT who was obliged to protect the confidentiality of the information; (iii) the Respondent’s personal medical information was not inpublic view or abandoned or already in the third party’s hands; (iv) the investigating officer was not a passive observer, and he created apermanent record, therefore, his technique was intrusive in relation to the privacy interests of the Respondent; (

v) the informationelicited from the Respondent by the EMT was biographical in nature. 1. The subject matter of the search [40] The Appellant submits that the Trial Judge improperly defined the subject matter of the search as personal health information.It should have been defined more precisely as the information provided to the EMT in an ambulance about recent alcohol and drugconsumption. [41] The Respondent argues that the Trial Judge accurately determined the subject matter of the search.

This is so because theinvestigating officer’s observations were not necessarily specific to information about recent alcohol and drug consumption alonebecause he was also privy to other private information that is biographical in nature.

The Respondent submits that the Appellant’sposition on the subject matter of the search is too narrow. [42] The Trial Judge found that the EHSA recognized a privacy right within the ambulance space, that the Respondent providedher medical information to the EMT within the confines of the ambulance, and that the Respondent had a reasonable though diminishedexpectation of privacy in the subject matter of the search. [43] The investigating officer was present for all the responses in relation to the Respondent’s medical history, demographicinformation and emergency contacts and her physical presentation as she provided responses to the EMT.

However, the officer onlyrecorded those statements that were relevant to the criminal driving investigation: the consumption of alcohol and/or drugs. The TrialJudge identified the subject matter of the search in his analysis at this stage of the inquiry as personal health information that isbiographical in nature. [44] I agree with the Respondent that the Appellant’s position is too narrow a definition for the subject matter of the search.

Although the officer only recorded details that he thought were relevant to the criminal investigation, he was present for, and received,all the verbal responses provided by the Respondent. This included details of her life that were unrelated to the criminal investigation. Ifind that the subject matter of the search was the Respondent’s personal health information that is biographical in nature. [45] Three categories of privacy interests fall under s 8 Charter protection: (1) personal privacy, (2) territorial privacy, and (3)informational privacy: Tessling at paras 21 – 24.

These categories may overlap depending on the facts of the case. When identifying thesubject matter of the search, Courts must not do so “narrowly in terms of the physical acts involved or the physical space invaded, butrather by reference to the nature of the privacy interests potentially compromised by the state action”: Spencer at para 31. [46] The guiding question at this stage of the inquiry is “what were the police were really after?”: Marakah, para 15. Courts mustconsider (

i) the privacy interest affected, (ii) the impact on the holder of that interest, (iii) the nature of precise information sought, and(iv) the nature of the information that it reveals: Spencer at para 36; Marakah at para 15. [47] In this case, the Respondent’s informational privacy interest is engaged. The Respondent shared her personal healthinformation with the EMT that revealed her lifestyle and personal choices and emergency contacts: R v Plant, (SCC),[1993] 3 SCR 281 at p 293.

The ambulance is not a private personal space, therefore the Respondents’ territorial privacy interest is notengaged. [48] The privacy interest affected was the Respondent’s personal health information that is biographical in nature. While theinvestigating officer was looking for any incriminating information that confirmed that the Respondent was driving under the influenceof drugs or alcohol, he was also privy to the Respondent’s other personal health information, such has her contact information andprescription drug use.

I recognize that the investigating officer did not record all of the Respondent’s answers and only focused on heranswers in relation to drug and alcohol consumption. However, for the purpose of this stage of the inquiry, it is important to look at theentire context of the information that the Respondent was providing to the EMT. 2. Direct interest in the subject matter [49] The Trial Judge made no error in determining that the Respondent had a direct interest in the subject matter of the search. TheAppellant and Respondent do not dispute this point. 3.

Subjective expectation of privacy [50] The Appellant argues that the Trial Judge erred in inferring that the Respondent had a subjective expectation of privacywithout any direct evidence and based solely on the fact that the Respondent brought a Charter application alleging a breach. The

Respondent argues that the Trial Judge found that there was only one reasonable inference for the Trial Judge to make based upon all thefacts before him in relation to the Charter challenge. [51] Based on the totality of the facts before him, the Trial Judge made no error inferring that the Respondent had a subjectiveexpectation of privacy in her personal health information. The subjective expectation requirement is not a high hurdle: R v Patrick, 2009SCC 17 at para 37.

A subjective expectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant’stestimony or admission at the voir dire: R v Jones, 2017 SCC 60 at para 21. 4. Objectively reasonable expectation of privacy [52] The Appellant argues that the Respondent did not have an objectively reasonable expectation of privacy. While the Appellantagrees with the Trial Judge’s considerations, the Appellant disagrees with how the Trial Judge assessed those considerations. TheAppellant submits that the Trial Judge erred in his determination of (

i) the extent to which the subject matter of the search was personal,(ii) the Respondent’s level of control over the area of the ambulance, (iii) the extent of significance of EHSA, and (iv) the degree ofinvasiveness of the technique. [53] The Respondent submits that the Trial Judge made no error in his analysis on this issue. [54] The Trial Judge found that an ambulance is a place where a patient should generally expect to be able to transmit and receiveinformation while having her privacy protected.

The Respondent disclosed her personal medical information to the EMT, who wasobliged to protect the confidentiality of the information. The information was not in public view, abandoned, or already in a third party’shands. The investigating officer was physically present, and making notes of the information the Respondent was clearly articulating herbiographical information to the EMT. [55] The Appellant concedes that the Trial Judge correctly articulated the considerations at this stage of the inquiry.

In relation tothe Trial Judge’s analysis, I see no error in the Trial Judge’s reasoning on this stage of the inquiry that would warrant appellateintervention. [56] The Appellant argues that the Trial Judge erred in finding that the subject matter of the search was personal. The Appellantsubmits that information in relation to sobriety of motorists cannot be considered deeply personal information as the officers arepermitted to ask questions to check on sobriety in a traffic stop without any suspicion or ground for questions.

The Respondent submitsthat the Trial Judge correctly characterized subject matter of the search as fundamentally personal information that included theRespondent’s contact information, her use of prescription medication, lifestyle details, and illicit drug use. [57] The Trial Judge found that the Respondent was clearly articulating her biographical information in response to the EMT’squestions.

In finding that the Respondent was communicating personal information to the EMT, the Trial Judge adopted the approach inR v Simard, 2018 BCSC 1901, where the police were present and audio recorded the Accused’s conversations with medical personnel.The Court found that the Accused disclosed confidential information and, as a result, the police engaged in a search and seizure of theAccused’s medical information.

Like the Court in Simard, the Trial Judge distinguished the current case from the reasoning inLaChappelle on the basis that Mr LaChappelle’s single-word answers and gestures in response to the EMT’s questions did not relayconfidential information. [58] I see no error in the Trial Judge’s reasoning that would warrant appellate intervention on this issue. Information that revealsbiographical information such as intimate details of person’s lifestyle and personal choices attracts constitutional protection: Plant atpages 292-294.

While there are some exceptions as they relate to regulated and privileged activities like driving (see R v Hufsky, (SCC), [1988] 1 SCR 621 at pp 637 – 638 and R v Orbanski; R v Elias, 2005 SCC 37 at para 49 [Orbanski]), none of thoseexceptions apply in this case. [59] The Appellant submits that the Respondent had no control over the ambulance, and the Trial Judge erred in finding that theRespondent was entitled to have her privacy protected within it. The Trial Judge did not err in finding that an ambulance is a place wherethe Respondent is entitled to have her privacy protected.

While I agree that the Respondent did not have any control over the ambulanceitself, she did have control over her personal health information.

In R v SS, 2023 ONCA 130 [SS] at para 33, the Court recognized thatthe relationship between an ambulance attendant and a patient is a medical practitioner-patient relationship, which attracts a reasonableexpectation of privacy. [60] The Appellant submits that the Trial Judge erred in finding that the EMT had an obligation to maintain the confidentiality ofthe information disclosed by the Respondent as the information collected was information that the EHSA permits an ambulanceattendant to disclose to police. The Trial Judge did not err in his finding on this point.

While I agree that the EMT did not have a duty tokeep information about the Respondent’s possible impairment confidential, the investigating officer did not obtain the information fromthe EMT, he seized the information from the Respondent in circumstances where there is no evidence that the Respondent was evenaware of the officer’s presence. [61] The Appellant argues that the Trial Judge erred in finding that the search was invasive. The Appellant submits that the searchwas not invasive as the investigating officer was merely present in the ambulance and made a few notes based on what he heard.

TheTrial Judge made several findings about the level of intrusion in relation to the Respondent’s privacy interests, including being close tothe Respondent in the ambulance, making a permanent record of the information that the Respondent provided to the EMT, and that theinformation was being clearly articulated. However, he did not draw a conclusion on the level of invasiveness of the search. Therefore, Imust conduct that analysis. [62] Invasiveness has difference levels as it depends on circumstances and the type of technique involved.

The techniques thatinvolve direct contact with a body are considered to be the most intrusive R v Saeed, 2016 SCC 24 at para 49. In this case, I find that thesearch was not invasive. The investigating officer used a non-invasive technique of recording information in his notebook as it was beingdisclosed by the Respondent. He did not record the entirety of the interactions between the EMT and the Respondent. He did not use an

electronic recording device. He did not ask the Respondent any questions. He did not interact with the Respondent’s body in any way. [63] In conclusion, while the Trial Judge did not conduct this analysis, the Trial Judge did not err in his conclusion that theRespondent had a reasonable expectation of privacy in the Statements. As such, the Trial Judge did not err in concluding that theRespondent’s s 8 Charter rights were engaged.

D) Was the seizure unreasonable? [64] The Trial Judge did not consider whether the investigating officer’s seizure of the Statements was reasonable. Therefore, Imust conduct the analysis. [65] The Appellant argues that the Trial Judge erred in law by automatically concluding that there was a s 8 Charter breachwithout considering if the search was reasonable. The Appellant submits that the investigating officer had an implied consent for hispresence in the ambulance and was authorized by law to investigate crimes.

The search was conducted in a reasonable manner as theinvestigating officer did not interfere with the medical treatment and only recorded responses to the minimally intrusive questions. TheAppellant also points to the fact that the investigating officer sought and received judicial authorization for blood demand. [66] The Respondent submits that the Appellant was not able to justify a warrantless search because there is no statutory orcommon law authority for him to seize the Statements. [67] In this case, the seizure of the Statements was done without a warrant.

Therefore, the burden was on the Crown to show thatthe warrantless seizure was reasonable: R v Collins, (SCC), [1987] 1 SCR 265 [Collins]. A warrantless search or seizurethat is not authorized by law is presumptively unreasonable: Collins at para 22. In order to prove reasonableness, the Crown mustestablish, on the balance of probabilities, that the search was: 1. authorized by law; 2. the law itself is reasonable; and 3. the manner in which the search or seizure takes place is reasonable. (Collins at para 22) 1.

Authorized by law [68] The Respondent submits that there was no statutory or common law authorization to seize the Statements in the circumstancesof this case.

The Appellant submits that the investigating officer had implied authority derived from the police’s duty to investigatepossible crimes and enforce the law. [69] Courts have recognized a number of ancillary common law search powers, including: search incident to arrest, which includesthe authority to strip search: R v Golden, 2001 SCC 83; search by consent: Goldman v R, (SCC), [1980] 1 SCR 976;safety search incident to investigative detention: R v Mann, 2004 SCC 52; search of abandoned property: R v Patrick, 2009 SCC 17;plain view search: Tessling; DNA search incident to arrest: Saeed. [70] Police also have the common law authority to detain motorists for sobriety checks: R v Dedman, (SCC),[1985] 2 SCR 2 and to check the sobriety of motorists, including asking questions about consumption of alcohol and drugs: R vLadouceur, (SCC), [1990] 1 SCR 1257 at p 1287, R v Orbanski; R v Elias, 2005 SCC 37 , [2005] 2 SCR 3[Orbanski].

Police have a duty and the authority to perform sobriety checks on motorists and assess sobriety by asking questions withoutneeding the express authorization of statute: Orbanski at paras 40 – 41.

However, any evidence that is obtained from compelledparticipation in sobriety testing without the right to counsel can only be used as an investigative tool and not as direct evidence toincriminate the driver: Orbanski at paras 45 – 47 and 58. [71] When there is a significant privacy intrusion, the authorizing law cannot give an implied authority as the authority must bespecific and express: R v Caslake, (SCC), [1998] 1 SCR 51 at paras 10-12. However, an implication may be necessaryin order to fulfill a statutory duty: R v M (MR), (SCC), [1998] 3 SCR 393 at para 51.

A prescribed limit may also beimplied from the operating requirements of a statute: R v Therens, (SCC), [1985] 1 SCR 613 at p 645. [72] The investigating officer had the authority under common law to screen the Respondent for sobriety and ask her questionsbecause she was the driver of a vehicle involved in a collision: Orbanski. This authority is also derived from the Traffic Safety Act whichallows police to screen any driver for drug and alcohol consumption. However, the officer never exercised any of those powers. He wasengaged in a criminal investigation.

He was present in an ambulance with the Respondent who was restrained on a stretcher and whowas communicating with an EMT. There is no evidence that the Respondent was aware of the officer’s presence.

The officer was asilent observer, who was present for all the Respondent’s answers to the EMT queries, and who recorded those answers that wererelevant to the criminal investigation. [73] The common law and statutory authority that gives officers the power to make verbal inquiries of drivers as to theconsumption of drugs or alcohol was not engaged in this case, since the officer never acted upon that authority: he never interacted withthe Respondent in the ambulance.

There is no common law or statute that authorizes officers engaged in a criminal investigation to seizehealth and biographical information provided by a driver to an EMT. Accordingly, the s 8 Charter breach is made out. Issue #2: Did the trial Judge err in finding s 10 breaches in the ambulance?

(

a) Did the police detain the Respondent in the ambulance? [ 74 ] The Appellant argues that the Trial Judge erred in finding that the Respondent was detained by the investigating officer in the ambulance. The Appellant submits that the Respondent was not detained by the state in the ambulance, but rather by her own medical condition.

The Appellant further submits that the investigating officer rode in the ambulance because he was planning on arresting the Respondent, which he did once the Respondent was able to stay awake, and which occurred when they arrived at the hospital. [ 75 ] The Respondent submits that the Trial Judge correctly determined that the Respondent was detained in the ambulance. The following two factors support that finding: (

a) the Respondent was strapped to the stretcher in the ambulance and could not leave; and (

b) the investigating officer had the intention of arresting the Respondent. [ 76 ] The Trial Judge held that the Respondent was detained in the ambulance; however, did not provide the reasons for this conclusion. The Trial Judge’s detention analysis was subsumed in the s 10(

a) and 10(

b) Charter analysis. This is an error of law. I further find that the Trial Judge erred in determining that the Respondent was detained in the ambulance. There was no evidence before the Trial Judge that the Respondent was physically detained by the investigating officer or felt psychologically detained by the investigating officer’s presence or actions in the ambulance. [ 77 ] The goal of s 9 of the Charter is to protect individual liberty from unlawful state interference. For s 9 to be engaged, the detention must be done by a state actor, such as the police: R v Grant , 2009 SCC 32 at para 54 .

An officer’s subjective intent to detain someone without actually doing so does not attract or infringe s 9 of the Charter . Subjective intent must be followed by actual conduct: R v Clayton , 2007 SCC 32 at para 48 . [ 78 ]

Section 9 of the Charter is engaged when the state arbitrarily physically or psychologically detains a person. Physical detention involves physical interference with the individual that is not trivial or transient in nature: Grant at paras 24 – 26 .

Psychological detention can occur where a person has an actual legal requirement to comply with a request or demand given by the police, or where a reasonable person in the same situation would feel obligated to comply and conclude that they cannot leave: R v Lafrance , 2022 SCC 32 [ Lafrance ] at para 22 . [ 79 ] In this case, the Respondent was physically detained, but not by the investigating officer. While the Respondent was strapped to the stretcher in the ambulance, this was done by the EMT for medical treatment purposes and likely transportation to the hospital.

EMTs are generally not considered to be state actors or individuals who act under directions of the police. As such, they cannot detain an individual on behalf of the police. There is no evidence that the investigating officer requested or interfered in any way with the regular procedures and decision making by the EMT. [ 80 ] In relation to psychological detention, the Respondent did not testify in the voir dire , nor did she have an obligation to do so. However, the Respondent has the onus of demonstrating on a balance of probabilities that she was psychologically detained: Grant at para 49 .

The Trial Judge made no findings of fact with respect the Respondent’s awareness or knowledge of police presence in the ambulance. There is no evidence that the Respondent knew that the investigating officer was present in the ambulance, or that the investigating officer’s physical presence was imposing (see R v Fedan , 2013 BCSC 1547 ). As such, there is no evidentiary basis on which to find that the Respondent was unable to exercise her own free will in the ambulance. (

b) Did the police breach the Respondent’s s 10(

a) and 10(

b) Charter rights in the ambulance? [ 81 ] Since I have concluded that the Trial Judge erred in finding that the Respondent was detained in the ambulance, the Respondent’s 10(

a) and 10(

b) Charter rights were not engaged until she was placed under arrest at the hospital. Therefore, there is no need for me to address the Trial Judge’s findings on whether the Respondent’s 10(

a) and 10(

b) Charter rights were infringed while she was in the ambulance. Issue #3: Exclusion of evidence under 24(2) of the Charter [ 82 ] While the Trial Judge correctly articulated the three-part test in Grant as it relates to considerations under 24(2) of the Charter , the Trial Judge did not conduct an analysis of the relevant considerations.

This is an error of law. [ 83 ] The Trial Judge stated a conclusion that the seriousness of the Charter infringing state conduct and the impact of the breach on the Charter protected interests of the Respondent favoured excluding the Statements but did not conduct an analysis under either branch. In relation to society’s interest in adjudication of the case on its merits, the Trial Judge found that because there was no fatality or serious bodily harm, the state’s non-compliance with constitutionally guaranteed rights outweighed the objective of prosecuting offences.

The Trial Judge excised Statements from the ITO. The investigating officer’s physical observations of the Respondent in the ambulance were not excluded from the trial. [ 84 ] Since the Trial Judge did not conduct a full 24(2) Charter analysis, I must conduct the analysis. (

a) The Seriousness of the Charter -Infringing State Conduct [ 85 ] At the first stage of the analysis, the Court must determine whether the Charter infringing conduct which led to the discovery of the impugned evidence is of such a nature that it ought to disassociate itself from it: Grant at para 72 . The more severe the breach, the greater the need for the courts to dissociate themselves from the unlawful conduct: Grant at para 72 .

State conduct resulting in Charter violations exists on a spectrum: with inadvertent or minor violations at one end and wilful and reckless disregard of Charter rights at the other: Grant at para 74 . Extenuating circumstances such as the need to prevent the disappearance of evidence and good faith of the police will reduce the need for the courts to dissociate themselves from unlawful conduct: Grant at para 75 . [ 86 ] Where a warrantless search is conducted in situations where there is a legal grey area, evidence of police’s view of the law

can assist justifying the search under first stage of the analysis: R v Spencer , 2014 SCC 43 at para 77 . A lack of reasonable and probable grounds is an indicator of seriousness of state conduct: R v Fearon , 2014 SCC 77 at para 96 . Discoverability of the evidence is a consideration if the evidence would have been obtained absence a Charter breach: R v Côté, 2011 SCC 46 [ Côté ] at paras 70 – 71 . [ 87 ] In this case, the Charter -infringing state conduct falls on the moderately serious end of the spectrum. The investigating officer was acting in good faith.

He was engaged in an investigation that he was required by law to conduct, and he only seized evidence that he would have been legally entitled to obtain from the Respondent. He only used the Statements as grounds in his ITO for the warrant. He did not interfere with the medical treatment of the Respondent. He used a non-invasive method of obtaining the Statements. This factor assists in justifying police conduct: Spencer . [ 88 ] However, the officer seized personal information provided by the Respondent to a EMT who was actively providing medical treatment to the Respondent.

The Respondent was compelled to answer the EMT’s questions in order to advance her medical care. There was no evidence that the Respondent was aware of the presence of the officer in the ambulance.

In fact, all inferences point to the opposite: the officer said nothing to the Respondent or the EMT, the Respondent was fading in and out of consciousness such that communication with the EMT was interrupted, the Respondent was restrained on a stretcher and unable to move or look around in the ambulance, it was the EMT who was seated at the side of the Respondent. [ 89 ] The Appellant argues that the Statements were inevitably discoverable since the officer could have asked the same questions to the Respondent.

I disagree that the same answers would have automatically been provided to the officer by the Respondent. Were the Respondent speaking with the officer, she would have known that he was a police officer, and she would have known he was investigating the collision. Leaving aside the fact that the Respondent was losing consciousness in the ambulance such that any conversation with the officer would have been a challenge, if the officer was speaking directly to the Respondent, she would have been free to make a choice about whether the participate in the investigation against her.

That choice was not available to her in the circumstances where the officer recorded statements she made to the EMT while accessing medical care. [ 90 ] The Appellant argues further that the provisions of the EHSA permit the EMT to provide the Statements to the officer and thus, the Statements were inevitably discoverable. I agree that the Statements were available to the officer under this statutory authority if he extended his investigation to questioning the EMT.

However, that did not occur in this case and there was no evidence about how, if at all, the EMT was recording the Respondent’s answers to questions. [ 91 ] The Appellant argues that the officer was acting in accordance with what appears to be a common practice by riding in an ambulance while a suspect is receiving medical treatment. This does not further the analysis on the seriousness of the Charter -infringing state conduct.

In the present case, there was no evidence that there was a compelling need for the officer to ride in the ambulance with the Respondent: the Respondent was not detained by the officer, she was restrained on a stretcher and would not have been able to depart the ambulance on her own, she was being transported directly to the hospital, the officer arrived at the scene in a police vehicle and had the means to follow the ambulance to the hospital and there was nothing in the evidence to suggest that there was a risk to the safety of the EMT or risk of the destruction of evidence. [ 92 ] On balance, I conclude that the first of the Grant criteria favours the exclusion of the Statements. (

b) The Impact of the Breach on the Accused’s Charter -Protected Interests [ 93 ] At the second stage of the analysis, the Court must determine the extent to which the breach actually undermined the Charter - protected interests of the accused. The more serious the impact on the accused’s Charter protected interests, the greater the risk that admission of the evidence may bring the administration of justice into disrepute: Grant at para 76 . The impact can range from fleeting to profoundly intrusive: Grant at para 76 .

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity is more serious than one that does not: Grant at para 78 . [ 94 ] A diminished privacy interest informs the analysis under the second stage: Cole at paras 92 and 97 . Discoverability can also be considered in the analysis under the second stage.

If the search could have occurred legally, it will lessen the impact of the illegal search on the accused’s privacy and dignity interest: Côté at para 72 . [ 95 ] It is correct that police have a common-law and statutory authority to conduct sobriety testing and inquire into drug and alcohol consumption of motorists. However, when police are interacting directly with motorists, motorists have the ability to make an informed choice of whether to participate in the investigation of their driving pattern.

In this case, there is no evidence that the Respondent was aware that the officer was overhearing her responses to the EMT in aid of medical treatment. In these circumstances she was unknowingly participating in the investigation against her. The compelling need to be truthful and accurate to receive appropriate medical treatment increases the impact that the s 8 breach had on the Respondent’s Charter protected interests. [ 96 ] The comments on the discoverability of the Statements set out above apply equally to this Grant criteria.

The fact that the officer could have obtained the Statements from the EMT lessens the impact of the breach. The uncertainty about whether the Respondent would have provided the same Statement to the officer if he was dealing with her directly is neutral to this analysis.

In this case, the fact that the Respondent was losing consciousness as she was in the ambulance lends greater weight to the impact of the breach because the officer would have been unlikely to have been able to obtain the Statements from direct dealings with the Respondent. [ 97 ] While the seizure involved a collection of personal medical information that went to the Respondent’s biographical core, the only personal information that the investigating officer collected was in relation to the Respondent’s drug and alcohol consumption.

This lessens the impact of the breach. [ 98 ] On balance I conclude that the second of the Grant criteria favours exclusion of the Statements. (

c) Society’s Interest in an Adjudication of the Case on Its Merits

[99] In the third stage of the analysis, the Court must determine whether the truth-seeking function of the trial process would bebetter served by admission or exclusion of the evidence: Grant at para 79. The Court must weigh the seriousness of the offence, thereliability of the evidence and its importance to the Crown’s case: Saeed at para 153.

Exclusion of relevant and reliable evidence mayundermine the truth-seeking function of the criminal justice system and render the trial unfair from the public perspective, thus bringingthe administration of justice into disrepute: Grant at para 81. [100] The cases that involve impaired driving and societal interests must be considered.

The devastating consequences of impaireddriving on Canadian society has been considered in numerous Supreme Court of Canada cases: Goodwin v British Columbia(Superintendent of Motor Vehicles), 2015 SCC 46 at para 1; Orbanski at para 69; R v Bernshaw, (SCC), [1995] 1SCR 254 at para 16. Society has a strong interest in the prosecution of impaired driving offences, particularly where members of thepublic are injured as a result: R v Notay, 2021 ABQB 706 at para 195. [101] I find that the evidence obtained was reliable.

It is extremely important to Crown’s case as without this evidence the Crowninvited dismissal of the charges.

It was only used to form the investigating officer’s grounds, and not as proof of guilt of the Respondent.I note that in Hagen, the Court found this to be an acceptable use of information obtained from the accused in the same way as in thiscase, even where the investigating officer engaged in follow-up questions in the ambulance and recorded much more information thanwhat was recorded in this case (see para 22 for the evidence and para 37). [102] I therefore conclude that the third of the Grant criteria favour inclusion and the Trial Judge erred in his determination that itfavoured exclusion. [103] On balance, the seriousness of the breach and the impact of the breach on the Respondent’s Charter protected interestsoutweigh the third of the Grant criteria.

The Trial Judge was correct to conclude that the Statements be excluded from the trial andexcised from the ITO. 6. Conclusion [104] For the reasons above, the appeal is dismissed. Heard on the 17th day of November, 2022. Dated at the City of Edmonton, Alberta this 6th day of June, 2023. S.E. Richardson J.C.K.B.A. Appearances: Kerri Facchinutti for the Crown/Appellant Dushan Coulson for the Accused/Appellant