R. v. Abbot Date:, 2015 BCPC 415

Citation: R. v. Abbot Date: 20151208 2015 BCPC 0415 File No: 23479-01 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MIKEL BRANDOR ABBOT RULING ON APPLICATION OF THE HONOURABLE JUDGE BIRNIE Counsel for the Crown: J. Doulis Counsel for the Defendant: D. Jenkins Place of Hearing: Smithers , B.C. Date of Hearing: Jan. 26- 28 and Nov. 13, 2015 Date of Judgment: December 8, 2015 [ 1 ] Mr. Abbot is charged with driving while impaired and driving when his blood alcohol was over .08 mg of alcohol in 100ml of

blood on October 25, 2013 in Smithers B.C. In the course of this trial I declared a voir dire on the issue of: 1) whether Mr. Abbot’s s. 8 Charter right to be secure from unreasonable search and seizure had been breached by virtue of the seizure of vials of his blood from the hospital, and if so whether that blood and any tests done on it should be excluded from evidence under s. 24(2). [ 2 ] These are my reasons on the s. 8 Charter issue. Facts: [ 3 ] I have heard testimony from Brian Shorter, Csts. McCreesh and VanLeeuwen, paramedics Von Donselaar and Larson, Dr.

Pretorious, lab technician Christine LePage, toxicologist Jacqueline Mack, and Michael Rosland who prepared an expert report “reading back” the blood alcohol results obtained from the blood sample of the accused to the time of driving. Admissions were filed regarding the evidence of Scott Martin, the head of the lab at the Bulkley Valley hospital. [ 4 ] There are no credibility issues regarding these witnesses and on the basis of their evidence I make the following findings of fact. [ 5 ] Just after midnight on October 25, 2013 Mr.

Abbot drove his vehicle off the road on a corner near the end of Railway Ave. in Smithers. He went over a ditch and through a 7-8 foot fence landing on Mr. Shorter’s property - in the course of which his head went out through the roof of his vehicle and then back in through the roof. He received a very significant injury to his head and was confused and at times incoherent from the time of the accident until some point during his treatment at the hospital. [ 6 ] When Cst. McCreesh arrived the accused was being supported by Mr. Shorter outside the vehicle.

Given the head injury and the fact the accused’s pupils were large and responded unevenly to light she believed he was, at the very least, concussed. His speech was slurred. She was unsure that he was able to understand her. Abbot said he was fine and just wanted to go home. He did not want any medical treatment. It was apparent to her he was not fine and that he would need to go to the hospital. He said he was not injured, but just drunk. [ 7 ] Based on this statement, the slurred speech and the accident she detained him for impaired driving.

The ambulance attended and when Abbot was moved to the stretcher he began vomiting at which point the Cst. could smell the odour of liquor from the vomit and Abbot’s breath. Abbot was taken by ambulance to the local hospital in the course of which he was yelling and swearing his objections to being strapped down - asserting that he was Scottish and should not be held captive but needed open spaces. He did not respond to and did not appear to understand the Charter warnings or the breath demand read to him by Cst.

McCreesh. [ 8 ] Once at the hospital Abbot remained volatile, upset and crying one minute and angry and swearing the next. He was trying to free himself from the restraints of the stretcher. He said he was refusing medical treatment and did not want anyone to touch him. Dr. Pretorious attended to the accused who stated again that he refused any medical treatment until he could speak to his lawyer or his mother. However he began speaking with Dr. Pretorious, giving him relevant information. At one point the Doctor said they would need an IV and Mr.

Abbot said that he hated needles and he would freak out if anyone came near him with a needle. The Doctor was touching the accused’s skull and told him he was trying to figure out if he had a brain injury or if he was just an asshole. The accused laughed and said he was just an asshole. [ 9 ] The Doctor then asked the police to leave the room. Cst McCreesh waited and helped take the accused down for x-rays and once the accused was unstrapped from the stretcher he became much more cooperative. While at the hospital she spoke with Dr. Pretorious and told him she thought the accused had been drinking.

She asked him if blood samples would be taken in the normal course of treatment and was told that they would. She told him the RCMP would seek a warrant for any samples taken and the Doctor said he’d make sure the lab didn’t destroy them. She did not seek a blood warrant under s. 256 because it did not occur to her to do so. [ 10 ] Dr. Pretorious did order blood samples in order to determine how much alcohol was in the accused’s system as he needed to know to what extent Abbot’s confusion was or might be the result of alcohol rather than the head injury.

Later in the morning the accused was taken into surgery where Dr. Pretorious stitched his scalp back together. He signed a consent prior to the surgery. [ 11 ] About an hour or more after the Cst. had left the hospital Ms. LePage took a blood sample from Mr. Abbot as the result of a requisition from Dr. Pretorious. She understood this blood was being taken for medical purposes only. She had no specific memory of dealing with Abbot but stated that her practice is to ensure she has the right patient, to introduce herself and explain why she is there and to obtain the patient’s consent.

If the patient does not consent she does not draw any blood but speaks to the doctor to determine what to do. Dr. Pretorious said that he had nothing to do with the taking of the blood sample and from this I infer that Ms. LePage had no conversation with him about the issue of consent. I find that the accused did consent to his blood being drawn by Ms. LePage for medical purposes. [ 12 ] The blood sample taken from the accused was analysed at the hospital and then stored in the lab refrigerator where it would normally be kept for a week and then discarded unless further tests were ordered during that period.

No further tests were ordered on Mr. Abbot’s blood. On October 30 th Cst. McCreesh telephoned the lab and spoke to the chief lab technician Scott Martinson. She confirmed with him that the blood samples taken from Abbot were still at the lab and asked him to put those samples aside as the RCMP would be preparing a warrant for them. Martinson said the samples would be placed in a bag and labelled for RCMP use and kept labelled and secure until the warrant was produced. [ 13 ] The warrant was not completed and sworn until January 27, 2014. Cst.

McCreesh said this is because she was injured at some point after October 30 th and was off duty all of December. The police had all the information necessary to complete an ITO and apply for a warrant when Cst. McCreesh left the hospital on October 25 th . When the warrant was executed and the blood samples seized on January 27 th they were in the refrigerator of the hospital lab, labelled “Keep for RCMP Warrant”.

[14] No Report to Justice was ever completed for the seized blood samples. They were sent to the RCMP lab and an analysis wasconducted on them by Jacqueline Mack on April 8, 2014. Cst McCreesh was aware of the requirement for a Report to Justice to be filedbut simply forgot to attend to this. Issues: [15] 1) Whether either Dr. Pretorious or Scott Martinson acted as “agents for the police” in directing that Mr.

Abbot’s blood be heldat the hospital lab until the police attended with a warrant to seize it, and if so 2) Whether their actions constituted an unreasonable seizure within the meaning of s. 8 of the Charter; 3) Whether the failure to file a Report to Justice after the execution of the warrant constituted a breach of s. 8; and 4) If any s. 8 breaches have been established whether the blood sample and any tests done on it should be excluded from evidence unders. 24(2). 1. Police Agents: [16] The Crown relies on the B.C. Court of Appeal decision in R. v.

Lunn (1990) (BC CA), 61 CCC (3d) 193 forthe proposition that hospital employees are not acting as agents for the State when they hold on to hospital blood samples at the requestof police in anticipation of a police warrant. [17] In the Lunn decision the accused was taken to the hospital after a motor vehicle accident. The police had grounds to believethat the accused was impaired. Blood samples were taken from the accused at the hospital for medical purposes. Two days later apolice officer contacted the hospital lab and asked if they had any blood samples from the accused.

The doctor he spoke with told himthey did have such samples and the police officer asked that they not be destroyed. (The blood samples would normally be discardedafter 7 days.) Five days later the police attended the hospital with a warrant and seized the blood samples. [18] The Court of Appeal held that in these circumstances the doctor did not become an agent of the state by either advising thepolice that the hospital did have samples of the accused’s blood, or by agreeing not to dispose of the samples at the request of the police.

With respect to the latter agreement the Court noted that because the search warrant was served on the 6th day, “if Dr.

Metcalf had taken no step whatsoever the search warrant could have been successfully executed within the seven day period andthe blood sample seized pursuant to it” [19] As regards the doctor providing information to the police the Court held that the doctor, acting in his capacity as an employee ofthe hospital, chose to respond to the police officer’s enquiry and in doing so he did not become an agent for the state nor did he become astate agent by not disposing of the sample before the warrant was served.

The Court did not consider the situation where a doctor orhospital employee takes positive action to hold onto a blood sample after the period when it would normally be discarded, at the requestof the police and for no ongoing medical purpose. [20] In Lunn the doctor was asked not to destroy the blood samples but there is no evidence that he took any action in this regard. The police served the warrant in a timely way, the blood in the usual course of events was still in the lab and they were able to seize it. [21] In Mr. Abbot’s case the police did not serve the warrant in a timely way.

The warrant was not prepared for almost threemonths. In the meantime Mr. Martinson had not only agreed to hold onto the blood samples for the police, he had caused the samples tobe labelled, “hold for RCMP warrant” and then kept in the lab refrigerator for almost three months beyond the date when they wouldhave been discarded if they were being treated as “medical” samples. [22] A somewhat similar situation occurred in R. v. Christensen 2005 BCPC 173 , 2005 BCPC 0173. In that case theaccused was taken to the hospital after an accident.

Blood was taken for medical purposes and the police were advised by a nurse thatthe samples had been taken and would be held for 7 days. When the police advised they would be seeking a warrant to seize the bloodthey were told that the lab would hold onto the blood until the warrant was delivered. [23] The police continued investigating the accident and it was not until about day 9 after the samples had been taken that they feltthey had the grounds to apply for a warrant.

The initial warrant was denied because of errors relating to the time and place of the searchand a subsequent ITO and warrant were not prepared for another three weeks as the officer dealing with the file went on holiday. Fiveand a half weeks after the blood samples were taken at the hospital the warrant was executed and the blood samples seized. [24] One of the many s. 8 issues argued by Defence was that the employees of the hospital were acting as agents of the State inholding on to the accused’s blood on behalf of the police beyond the time for which it would have been kept for medical purposes.

Thisargument was dealt with very briefly and dismissed on the basis of the Lunn decision, but without any discussion of either the factualdifferences between the two cases or the limits of what the Court of Appeal actually decided in Lunn. (I note also that on the facts inChristensen the police did not request the blood to be held - rather they advised of their intention to seek a warrant and the hospitalemployees chose to keep the blood beyond the 7 day limit in anticipation of the warrant.) [25] Cases involving the sharing of a person’s private information, data or bodily substances by medical personnel with Stateauthorities without a person’s consent certainly raise ethical issues.

They can only raise issues under the Charter when the medicalprofessional is acting as a State agent; that is, he or she has taken positive steps at the request of a State actor to assist the State for a non-medical purpose. [26] In R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945 for example, the actions of a doctor who took blood from anincoherent and delirious patient at the request of a police officer constituted an unreasonable search and seizure. In R .v. Dyment, (SCC), [1988] 2 S.C.R. 417 La Forest , J. explains that this was so because the sample was taken at the request of a police

officer and s. 8 was designed to protect against actions by the state and its agents. [ 27 ] In this case Mr. Abbot’s blood was taken, with his consent, for medical purposes. Those purposes included any testing of the blood by the hospital for treating Mr. Abbot and the retention of the blood by the hospital as required for such treatment - i.e. 7 days. In holding the blood samples for a further three months at the request of Cst. McCreesh and for the purpose of an anticipated police seizure Mr. Martinson was not acting for any medical purpose.

He was assisting the police for a non-medical purpose and in doing so he became an agent of the police and his actions are subject to Charter scrutiny as were the doctor’s in Pohoretsky . [ 28 ] Dr. Pretorious, on the other hand, did nothing other than tell the police officer he would make sure the lab did not destroy the blood. He was not asked to do this by the officer and there is no evidence that he ever gave any instructions to the lab in this regard. He was not acting as an agent for the police. [ 29 ] The decision of Mr.

Martinson to hold Abbot’s blood sample for the police, after the point in time when it would otherwise have been discarded is a seizure within the meaning of s. 8. Mr. Abbot clearly had a privacy interest in his own blood. It was kept by a state agent without his knowledge or consent for reasons unrelated to the medical purpose for which it was taken and beyond the time frame for which it would otherwise have been in the custody of the hospital. [ 30 ] The seizure was not authorised by law, was therefore, prima facie unreasonable, and constitutes a breach of s. 8 of the Charter.

Failure to Complete a Report to Justice: [ 31 ] For the reasons set out in R. v. Garcia-Machado 2015 ONCA 569 , (and in particular paragraphs 39 - 55), I find that the failure by Cst. McCreesh to complete a Report to Justice for the seizure of the blood samples and the hospital records as required by s. 489.1(1) of the Criminal Code also resulted in a seizure which was not authorised by law and constitutes a breach of s. 8 of the Charter. (See also R. v.

Paterson 2011 BCSC 1728 .) Section 24(2): [ 32 ] S. 24(2) of the Charter of Rights states that evidence which was obtained in a manner that infringed or denied a person’s Charter rights must be excluded if it is established, having regard to all the circumstances, that its admission would bring the administration of justice into disrepute. In R. v. Grant

(2009) SCC 32 the Supreme Court of Canada sets out the approach which courts should take in determining whether the admission of evidence in a particular case will bring the administration of justice into disrepute. [ 33 ] The Court held that the “administration of justice” encompasses trial fairness as an overarching systemic goal and is concerned with maintaining the integrity of and public confidence in the justice system by focusing on the long term repute of this system and not on immediate public reaction to an outcome in a specific case.

The inquiry is objective, from the perspective of a reasonable person who knows all the relevant circumstances and understands the values underlying the Charter right in question. There are no categories of evidence which are automatically excluded.

The focus is societal and not on compensating an accused person or on punishing police or other state “actors”. [ 34 ] Trial judges are directed to assess and balance the effect of admitting evidence obtained as the result of a Charter breach on society’s confidence in the justice system having regard to: 1) the seriousness of the state conduct which caused the breach, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) society’s interest in the adjudication of the case on its merits. I must apply these principles to the circumstances of this case.

Seriousness of State Conduct; [ 35 ] The use of medical personnel to seize bodily substances which have been provided in the course of medical treatment, so they may be used for law enforcement and criminal investigation purposes, is a serious matter. It undermines in a significant way the relationship of trust and confidentiality which must exist between a patient and his or her doctor as well as the other medical personnel who provide necessary services for a person who is receiving treatment at a hospital. As La Forest stated in R. v.

Dyment (supra at paragraph 38 ): The dignity of the human being is equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation. In my view, the trust and confidence of the public in the administration of medical facilities would be seriously taxed if an easy and informal flow of information, and particularly of bodily substances from hospital to police were allowed. [ 36 ] In this case there was no urgency. It was unnecessary for the officer to ask Mr.

Martinson to hold onto the blood samples and to then wait almost three months to execute the warrant. The samples were at the hospital. They would be held there in any event for seven days and yet the ITO was not completed within that time frame for no apparent reason. I appreciate that at some point after October 30 th Cst. McCreesh was injured at work. However there is no evidence as to how or why this prevented the search warrant from being completed in a timely way. [ 37 ] Cst. McCreesh was very compassionate and professional in her dealings with Mr. Abbot.

However the failure to follow through with the preparation of the ITO for a warrant, or to at least arrange to have a fellow officer follow up on this suggests the police considered it appropriate to rely on the hospital’s willingness to hold the blood for them and to take their time to get to the preparation of their warrant application.

[ 38 ] This somewhat casual approach is underscored by the failure of the police to file an s. 5.2 Report to Justice. While that failure on its own is far less serious and would not, on its own lead to the exclusion of the blood samples, in this case, it is indicative of a somewhat careless or negligent attitude which precludes me from finding that the police acted in good faith.

Impact on the Accused: [ 39 ] Given the privacy interests of a person in their bodily substances and their expectation that what they consent to being taken for medical purposes will be used by the hospital only for such purposes I find that there was a significant impact on the accused by the unlawful seizure of his blood. Society’s Interest in Adjudication on the Merits: [ 40 ] The question to be asked on this point is whether the truth seeking function of the criminal trial is better served by admission or exclusion.

If the evidence in question is reliable and relevant then the truth-seeking goal must be balanced with the integrity of the justice system having in mind the importance of the evidence to the prosecution’s case. The seriousness of the offence may be considered. [ 41 ] The evidence at issue, (the blood sample), is reliable.

The evidence is essential to the prosecution case in relation to Count 2, i.e. the over.08 count, though the prosecution can proceed on Count 1, the impaired driving charge without the blood sample evidence. [ 42 ] The use of blood samples in cases involving motor vehicle accidents is an important part of maintaining safe roadways. The samples were taken for a legitimate medical purpose and with the accused’s consent.

At the same time, in the context of the systemic goal of the integrity of the justice system it is difficult to see how an informed and thoughtful public could condone the gathering of evidence in circumstances, such as here; where a person gives consent for the taking of blood in the course of emergency medical treatment, and that blood is then held by hospital officials at the request of the police for no medical purpose.

The admission of the blood samples in this case would send a message that in the context of an impaired driving investigation, where the police had other investigative tools to use but simply did not do so, (i.e. seeking a blood warrant under s. 256, preparing a warrant for the hospital samples in a timely way), a person’s right to control the use of their own bodily substances does not count. In my view such a message would undermine public confidence in the administration of justice and I find that the administration of justice would be brought into disrepute if the blood samples were admitted in this case.

The blood samples and the report of Jacqueline Mack are therefore excluded.