2015 QCCQ 4286, 2015 QCCQ 4286

R. c. Snider 2015 QCCQ 4286 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Criminal and Penal Division” N° : 500-01-083493-129 DATE: May 25, 2015 ______________________________________________________________________ PRESIDING: THE HONOURABLE THIERRY NADON, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. Stacey SNIDER Defendant ______________________________________________________________________ JUDGMENT on a motion to exclude evidence under

section 8 and subsection 24(2) of the Canadian Charter of Rights and Freedoms ______________________________________________________________________ Delivered orally on May 22, 2015 (These reasons may have been revised, modified, or elaborated to improve presentation and understanding, as permitted by the judgment in Kellogg’s Company of Canada v. Quebec (A.G.) , [1978] CA 258 at 259–260 , but the conclusions remain unchanged. CONTEXT [ 1 ] The defendant, who was in a serious motor vehicle accident, was accompanied to the hospital by two police officers in uniform.

During the nearly four hours that the police were in the emergency rooms, a member of the hospital staff told them that alcohol was discovered in the defendant’s blood and disclosed her blood alcohol level to them. [ 2 ] On this basis of this information, an investigator applied for a search warrant and a production order with the aim of seizing the blood samples taken, the toxicology results, and the defendant’s medical record. [ 3 ] Charged with driving with a blood alcohol concentration above the legal limit, the defendant alleges that the information was obtained in breach of her rights protected by

section 8 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) and should be excised from the information filed in support of the judicial authorizations. Consequently, she seeks to have the samples, blood alcohol content results, and the medical record excluded from the evidence. Evidence presented at the voir-dire [ 4 ] On August 14, 2012, around 6:00 p.m., a very serious accident took place involving a BMW vehicle driven by the defendant and Société de transport de Montréal bus. The scene of the accident was catastrophic: the BMW was destroyed and the bus flipped over.

Officers Boucher and Church arrived on the scene. The bus driver and the defendant’s mother, who was seated in the BMW, eventually died from their injuries.

[ 5 ] The defendant was taken by ambulance to the Montreal General Hospital. At the request of their superior, Officer Lavoie, Officers Boucher and Church accompanied the defendant. Boucher rode in the ambulance, while Church drove the patrol car. The defendant was gravely injured and in critical condition. Boucher believed that she was about to die. There was no indication of impaired driving. Officer Boucher was dealing with a victim.

The defendant was not detained, under suspicion, or being investigated. [ 6 ] When a motor vehicle accident takes place, Montreal police department procedure requires a police officer to accompany a seriously injured person. The officer’s presence is necessary to ensure a connection between the injured person and the scene of the accident.

The officer must relay information about the person’s health to his or her superior and, in the event of the victim’s death, inform the coroner. [ 7 ] At the Montreal General Hospital, patients arriving in ambulances are directed to one of the following three rooms: the ambulance room, the trauma room, and emergency room. According to Amanda Cabana, the emergency room coordinator, police officers are not allowed into the trauma room. They are also not supposed to be in the employee working areas in the ambulance room.

According to her, the area is too small to ensure confidentiality. [ 8 ] According to Cabana, the presence of anyone other than hospital staff would infringe on confidentiality. People can see the patients, hear the hospital staff speaking, see results on the employees’ counter and computer screens. Many complaints have been filed by employees, but the situation persists to this day. [ 9 ] When she arrived at the hospital, the defendant was brought to the trauma room. This is not a big room. The treatment team took her in hand. The police officers remained in the room but moved away from the bed.

According to them, they had to remain near her; it was their duty. Because of their proximity, Officer Boucher witnessed the unconscious defendant’s face being surgically stapled. [ 10 ] Once her condition was stabilized, she was brought to the ambulance room. This room is also small and normally reserved for the hospital staff. According to Cabana, although no notices are posted, the police officers had no business being in there. [ 11 ] The officers hung around for almost four hours near the defendant – more specifically, at a distance of approximately 25 to 30 feet from her bed.

During these four hours, the ambulance room contained nine beds, and the police could also see the other patients lying in them. The defendant was unconscious, non-threatening, and did not represent a danger to herself. [ 12 ] The police officers saw the different treatments the defendant received from the hospital staff. They went with her to the X-ray room to find out how serious her skull fractures were.

They were there when she underwent a CAT scan. [ 13 ] After they observed the defendant for a long period of time in an intimate setting in a very small area reserved for hospital staff, the inevitable happened. The police officers received confidential information that had been gathered through the medical procedures: the defendant’s blood had been found to contain alcohol. [ 14 ] At that time, Boucher was near the counter in the ambulance room. Cabana told him that the driver had alcohol in her blood and that the level was “240”.

He does not remember asking any questions. [ 15 ] Cabana remembers the event a little differently. As she was taking care of the defendant, she heard a doctor or someone else behind her say, “oh my god she was drunk or she was drinking.” Aloud, she asked, “Who?” They answered, “The driver.” She said, “Who is the driver?” [ 16 ] She went to see the ambulance coordinator, who confirmed that it was her patient. She said, “Oh she was drinking,” and turned around to see a police officer, who asked, “Who?” She pointed to the defendant.

The uniformed police officer in her work area near a counter in the ambulance room allegedly told her, “You just made my job more difficult or harder.” Angry about having revealed information, she apparently demanded that the police officer move away from her desk to ensure confidentiality and referred the police officer to the doctor. The police officer left. [ 17 ] She must have seen the blood alcohol concentration results on the computer screen. She denies giving a blood alcohol level to the police officer because she does not know how to interpret the results.

She does know, however, that when there is alcohol in the blood, a red light appears on screen. [ 18 ] Officer Boucher testified, relying on his notes. He was unable to remember the events beyond what he had written. He states that he did not breach professional secrecy, Ms. Cabana did. Officer Church is of the same opinion. He knows that confidentiality prevents hospital personnel from disclosing information. Nevertheless, he states, he was not concerned that Ms. Cabana had breached the right to confidentiality.

According to Church, confidentiality prevents the hospital staff from disclosing information; they do not have the right to give it to him. [ 19 ] Church admits that he asked the hospital staff questions about the woman’s condition before the information about the blood alcohol level and the alcohol in her blood was disclosed.

When confronted with the note taken at 10:42 p.m. on page 30 of the medical report, which states that the police officers were asking several questions about the blood alcohol level, he answered that he did not remember. [ 20 ] The Court accepts the following: Because of their privileged position in an area reserved for hospital staff, the police officers heard Ms. Cabana say that the defendant had been drinking. Ms.

Cabana pointed to the defendant and the police officers asked questions and got an answer about a blood alcohol concentration that turned out to be erroneous. [ 21 ] The Court’s finding is based on the circumstances as a whole and the following facts in particular: The police officers do not remember asking questions. The note in the medical report confirms that they asked questions about the blood alcohol content.

Moreover, according to Boucher, it is part of his job to ask questions, if only to ensure that the blood alcohol level was not over the legal limit. [ 22 ] The rate indicated in the medical report was entered using a different unit of measurement from that used for impaired driving.

The alcohol level of 24.8 is expressed in millimoles. [1] The Court finds that this level was given to Officer Boucher by Cabana. Boucher erroneously believed that the level was expressed in milligrams of alcohol per millilitre of blood. [ 23 ] As of that moment, Boucher’s role changed; he was now in investigative mode. Boucher spoke with Dr. Troquet, informing him that a warrant would be sought to seize the vials of blood and ensure their preservation. [ 24 ] The information was sent to Sergeant Lavoie, who informed investigator Martin Lapierre.

Because of the time that had passed since the accident, the police officers could not obtain a telewarrant. [ 25 ] The parties have not proved the defendant’s consent to the taking of the blood sample. According to the evidence, she was unconscious the entire time. She was not in any state to give her consent. According to the medical report, [2] the sample was taken at 8:33 p.m. and the result was known at 9:09 p.m., August 14, 2012. One thing is certain: the sample was taken for medical purposes. [ 26 ] On August 15, 2012, investigator Martin Couture applied for a search warrant and production order.

In support of his applications, he filed an information, paragraph 4 of which reads as follows: [ translation ] At 10:40 p.m., Off. Boucher #5997 informed Cst. Martin #3286 and Cst. Lapierre #4746 that a nurse had told him that Ms.

Stacey Snider had a blood alcohol level of 240 mL/100 mg of blood. [ 27 ] Justice of the Peace White issued a search warrant authorizing the seizure from the Montreal General Hospital’s biochemical laboratory of the blood samples taken following the defendant’s admittance, as well as a print-out of the toxicology results. [ 28 ] She ordered the Montreal General Hospital archives to give Investigator Lapierre the defendant’s medical record following her admittance on August 14, 2012. [ 29 ] This file contains the medical history relating to her hospitalization.

It is voluminous and contains a great deal of personal information. ADMISSIONS [ 30 ] The Crown admits that if the paragraph at issue is excised from the information in support of the search warrant and production order, the remaining grounds would be insufficient to justify the justice of the peace’s issuance of the judicial authorizations. In the event of such a conclusion, the blood samples, blood alcohol test result, and medical report were seized without a warrant or production order.

ISSUES The following four questions must be answered to determine the outcome of this application: 1- Were the contents of paragraph 4 of the information presented to the justice of the peace in support of the search warrant and production order obtained in breach of

section 8 Charter rights? 2- If so, must the judicial orders be declared invalid? 3- If they are invalid, was there a breach of the defendant’s

section 8 Charter rights during the seizure of the blood samples taken, the toxicology results, and her medical report? 4- If there was a

section 8 breach, must the blood samples, toxicology results, and medical report be excluded from the evidence under subsection 24(2) of the Charter ?

POSITIONS OF THE PARTIES The Crown [ 31 ] The police, who were lawfully on the premises of the emergency room, were there to ensure the public’s safety. The Crown admits that the police officers performed their job poorly and that they consequently saw what they should not have seen. There was nothing, however, to prevent them from being there. [ 32 ] They committed no fault. The fault should be attributed to Ms. Cabana, and her actions are not subject to Charter scrutiny. The police officers had a duty to investigate once they obtained the information, and they did. There was therefore no breach of

section 8 of the Charter . [ 33 ] In the alternative, given the good faith of the police officers and the absence of fault on their part, the evidence should not be excluded under subsection 24(2) of the Charter . The Defence [ 34 ] The presence of the police officers in the emergency room, near the defendant, was a breach of her

section 8 Charter rights. The policer officers received confidential information. In so doing, they carried out a warrantless seizure, thereby violating

section 8 of the Charter . [ 35 ] The confidential information should have been excised from the information filed in support of the application for a search warrant and production order. If this paragraph is deleted, the remaining contents of the information would be insufficient to constitute grounds to issue judicial authorizations. The warrant and order are therefore invalid. The seizure of the evidence was carried out without legal authorization, in breach of

section 8 of the Charter . [ 36 ] Under subsection 24(2) of the Charter , the evidence must be excluded. The bad faith of the police officers, their awareness of the breach of the right to confidentiality, and the significant impact of the violation on the defendant’s fundamental rights weigh in favour of exclusion. ANALYSIS The first issue: Were the contents of paragraph 4 of the information presented to the justice of the peace in support of the search warrant and production order obtained in breach of the rights protected by

section 8 of the Charter ? A. Applicable legal principles 1. To whom does the Charter apply? [ 37 ] The Charter applies to all governmental actions, including those of peace officers. [3] The actions of hospitals are generally not subject to Charter scrutiny. [4] [ 38 ] That said, a specific action by a body not generally bound by the Charter [5] may sometimes require scrutiny. This can occur, for example, when such a body acts as an agent of the government at the request of police officers. [6]

Section 8 of the Charter :

summary of the protection

[39]

Section 8 of the Charter reads as follows: “Everyone has the right to be secure against unreasonable search or seizure”. [40] In R. v. Gomboc,[7] Deschamps J. clearly and succinctly summarizes the approach to take and the questions to ask: [20] If, in the first instance, a reasonable expectation of privacy is determined to exist, a search intruding upon that interest will engages. 8 of the Charter. Because the Charter protects only against unreasonable searches, the next step after a reasonable expectation ofprivacy has been established is to inquire whether the search is reasonable.

A search involving a Charter-protected privacy interest willbe reasonable if the police are authorized by law to conduct the search, if the law authorizing the search is reasonable, and if the searchis conducted in a reasonable manner (R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278). [41] Where there is a reasonable expectation of privacy, there is seizure within the meaning of

section 8 of the Charter when theauthorities take something from a person without his or her consent.[8] 3. Reasonable expectation of privacy: general notions [42] The Court must answer the following question: Would a reasonable and informed person in the position of the defendant have areasonable expectation of privacy?[9] [43] The expectation of privacy is a protean notion. It is difficult to define its limits.[10] To give it full effect, the Court mustinterpret the notion broadly and in line with the purpose of

section 8 of the Charter, in particular, the long-term protection of the right toprivacy.[11] To do so, all of the circumstances must be considered.[12] The Court must look at, inter alia, the impact of the search onthe person[13] and the intention and purpose of the state agents in obtaining the thing or information.[14] [44] Privacy comprises three aspects: territorial, personal and informational.

These aspects may overlap.[15] [45] The territorial aspect is usually defined as the space we occupy or that belongs to us, such as our residence,[16] our hotelroom,[17] our room in a rooming house,[18] or our car.[19] [46] The personal aspect is the one that benefits from the highest degree of constitutional protection.[20] Examples include ourbodies,[21] our DNA,[22] and our bodily fluids.[23] [47] The third aspect concerns information.

There is information that is highly revelatory and significant concerning a citizen’spersonal life[24] that reveals intimate details about one’s lifestyle and personal choices.[25] The Charter recognizes that theconfidentiality of some information must be preserved because persons who disclose it may reasonably wish it to remain private.[26] [48] The scope of constitutional protection depends on the nature of the information and the purpose for which it was disclosed.[27]The guarantee extends as far as the determination of “when, how, and to what extent information about them is communicated toothers”.[28] [49] When the state wishes to obtain this type of information, “the closer the subject matter of the alleged search lies to thebiographical core of personal information, the more this factor will favour a reasonable expectation of privacy.

Put another way, themore personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existenceof a constitutionally protected privacy interest”.[29] 4. The reasonable expectation of privacy of a citizen staying in a health institution and information about his or her health. i. Quebec statutes [50] A myriad of Quebec statutes[30] recognize Quebecers’ right to the confidentiality of their medical information. [51]

Section 19 of the Act Respecting Health Services and Social Services[31] (the “A.H.S.S.S.”) provides that “The record of a useris confidential and no person may have access to it except with the consent of the user or the person qualified to give consent on hisbehalf. Information contained in a user's record may, however, be communicated without the user's consent”.

Last names, first names,birth dates, sex, and address are protected information, which may be communicated only pursuant to a statutory exception.[32] [52] Information in a record may be communicated without consent only in accordance with the exceptions set out in the Act. A fewexceptions are relevant to criminal investigations or the search for the circumstances of a death. [53] One of these exceptions permits the communication of information to the coroner in the exercise of the functions of office.[33]Information may also be released to prevent

an act of violence, including suicide, where there is reasonable cause to believe that there isan imminent danger of death or serious bodily injury to a person or an identifiable group of persons. Only the necessary information maybe communicated.[34]

[ 54 ] The director of the institution must inform police authorities that a person injured by a firearm has been admitted to the institution under his or her direction. The information communicated is limited to the identity of the person, if known, as well as the name of the institution. [35] [ 55 ] Once the information is communicated, measures must be taken to ensure the security and confidentiality of the information.

A register must be kept to record any communication of information. [36] Once the communication is authorized, the examination of the record is itself subject to restrictions. [37] [ 56 ] Such confidentiality imposes obligations on health professionals. The Quebec Code of ethics of physicians [38] requires a physician to safeguard the confidentiality of information learned through the exercise of his or her profession.

These obligations are also incumbent on nurses. [39] Physicians must be proactive and take reasonable means with respect to the persons with whom they work to maintain professional secrecy. [40] The communication of information is strictly limited to the exceptions set out in the Code or another statute. [41] [ 57 ] All of these provisions have in common the confidentiality of information and the rigorous and strict limitations on the communication thereof. ii.

The case law [ 58 ] The courts have long recognized the importance, confidentiality, and reasonable expectation of privacy associated with information in medical records. [ 59 ] In McInervey v. Macdonald , [42] La Forest J., writing for the Supreme Court, stated the following: …at least in part, medical records contain information about the patient revealed by the patient, and information that is acquired and recorded on behalf of the patient. Of primary significance is the fact that the records consist of information that is highly private and personal to the individual.

It is information that goes to the personal integrity and autonomy of the patient. [ 60 ] Hospitals are one of the subjects raising concerns in privacy cases because of “the vulnerability of the individual in such circumstances”. [43] [ 61 ] The importance of the information in our medical records gives rise to confidentiality and the prohibition against communicating it save where permitted by law. [ 62 ] The Supreme Court has clearly recognized the accused’s reasonable expectation of privacy where a vial of blood was voluntarily given by a physician to a police officer.

LaForest J., writing for the majority of the Court, wrote, “The use of a person's body without his consent to obtain information about him invades an area of privacy essential to the maintenance of his human dignity”. [44] [ 63 ] He adds, “I think the protection of the Charter extends to prevent a police officer, an agent of the government, from taking a substance as intimately personal as a person's blood from a person who holds it subject to a duty to respect the dignity and privacy of that person”. [45] [ 64 ] Protection is not limited to the handing over of blood; it also applies to information from tests carried out for medical reasons that is communicated to police officers. [46] [ 65 ] This case shows that privacy concerns in hospitals persist.

The following excerpt from LaForest J., written nearly 30 years ago, is unfortunately still relevant today: “the courts must be especially alert to prevent undue incursions into the private lives of individuals by loose arrangements between hospital personnel and law enforcement officers”. [47] [ 66 ] Recently, in Taylor , [48] the Court of Appeal of Alberta summarized the role of the courts in such a situation: ”That said, as Major J. explained in Dersch , it is essential that the courts guard against a free exchange of information between healthcare professionals and the police.” [ 67 ] In short, the statutes and case law have long confirmed that the information in our medical files is confidential and that every person has a reasonable expectation of its privacy.

B. Application to the facts of this case [ 68 ] Let us first settle the issue of the application of the Charter . The hospital employees were not state agents and they did not act at the behest of the police officers. The evidence does not show that blood was taken and information gathered for any reason other than medical. [49] The communication by emergency room coordinator Ms. Cabana of the defendant’s blood alcohol level was not done as a state agent.

Her actions are not subject to Charter scrutiny. [ 69 ] That said, the fact that the police obtained the information brings the Charter into play. [50] The Court of Appeal of Alberta’s judgment in Erickson [51] is similar to the case at bar and guides us on the issue of the

section 8 Charter breach.

[ 70 ] In Erickson , the accused was brought to the hospital following a serious motor vehicle accident. Blood was taken for medical purposes. Toxicology results indicated a blood alcohol concentration over the legal limit. The doctor informed the police officer that the accused was possibly inebriated. He confirmed that a blood sample had been taken and that he had it in his possession. The doctor told the police officer that a toxicology test had been run and the result was shown to the police officer.

Using this information, the officer obtained a search warrant. [ 71 ] The Court of Appeal of Alberta found that the accused had a reasonable expectation of privacy. The acquiring of the information by the police officers constituted a seizure within the meaning of

section 8 of the Charter . No statute permitted them to obtain it. Therefore, the Court excised it from the information supporting the warrant, declared the warrants invalid, and concluded that there was a

section 8 Charter violation. [ 72 ] In this case, the situation is nearly identical, save that the role of the doctor is played by the emergency room coordinator. [ 73 ] The defendant had a reasonable expectation of privacy throughout her stay in the hospital, and this included the information about her blood alcohol concentration that was disclosed. The information in her medical file was confidential within the meaning of the Act and could not be disclosed. [ 74 ] Where there is a reasonable expectation of privacy, it remains to be seen whether there has been a seizure within the meaning of

section 8 of the Charter . The police officers obtained statutorily protected confidential information without the defendant’s consent. The acquiring of the information by the police officers was a seizure within the meaning of

section 8 of the Charter. [52] [ 75 ] Consequently, the seizure by the police officers was prima facie unreasonable. It was up to the Crown to show, on a balance of probabilities, that there was a statute authorizing the officers to seize the information. [ 76 ] Let us analyze the various possibilities. [ 77 ] The police did not have any suspicions, let alone grounds, to believe that an offence had been committed.

They could not have obtained a warrant under the impaired driving provisions. [53] [ 78 ] Despite the reference in the evidence to the presence of the police officers to inform the coroner in the event of a death, the evidence does not indicate that the police were acting on behalf of the coroner in an investigation. [54] There is no evidence of a coroner’s investigation or any specific requests either from or authorized by the coroner to the police. [ 79 ] The Crown did not prove that there was statutory authorization for obtaining what was included in paragraph 4 of the information filed in support of the judicial authorizations; therefore, there was a violation of the

section 8 Charter right. What was obtained in breach of that right must therefore be excised from the information filed in support of the warrant and the production order. [ 80 ] But there is more. The defendant’s right to privacy was violated on several fronts. The territorial, personal, and informational aspects of her private life were impacted by the actions of the police officers. [ 81 ] Officer Boucher knows that medical information is confidential, and he knows how important that is.

When questioned on the need for his presence near the defendant for those four hours, Boucher answered that it was procedure and that he was curious. When a victim dies, he has to know about it so that he can tell others. He has to ascertain the extent of the injuries. He was aware, however, that he was in the defendant’s personal life. Personally, he would not like to experience the same fate. He also explains that he was near the victim for reasons of efficiency.

Because of their work load, hospital personnel do not have the time to give out information and he therefore could not get the information he needed any other way. [ 82 ] The Court recognizes that police officers play an essential role, not only as protectors of order, public safety, and crime prevention and control, but also as protectors of personal safety, attentive to the needs of victims. [55] Surely this role requires them to go to the hospital with victims when necessary and ask about their condition in order to fulfil their mission. [ 83 ] Unfortunately, in this case, the role of protector was exercised zealously and with misplaced curiosity.

The defendant was not detained or under suspicion or investigation. She was an accident victim in critical condition whose care had been taken in hand by health professionals. She represented no danger to herself or others. Was it necessary, or even appropriate, for Officers Boucher and Church to remain so close for such a long time to establish a connection with the scene of the accident? Surely not. [ 84 ] The officers infringed on the defendant’s privacy throughout the time they spent in the emergency room.

Their bedside watch resulted in a long list of confidentiality breaches, including their presence during the CAT scan, the X-rays and the surgical stapling of the face. [ 85 ] Because of her condition, the defendant could not be aware that the police were present. Permitting such an intrusion in a context such as this, however, could lead injured individuals to refuse care out of a fear of incriminating themselves due to the presence of police officers. [ 86 ] The reasons given by Investigator Lapierre for the police officers’ presence at the victim’s bedside also fail to justify such close proximity.

Following through, keeping tabs on the situation, having a firsthand version and, in the event of death, informing the coroner in no way justified the violation of the defendant’s privacy and confidentiality. [ 87 ] Over 20 years ago, Laforest J., for the majority of the Supreme Court, denounced the presence of police officers in the ER in a different context, writing, “The presence of the police officer in the emergency room in such circumstances can only serve to undermine the physician-patient relationship, as the accused would likely interpret these facts as a sign that the medical staff was operating in conjunction with the police investigation”. [56] [ 88 ] Berger J., for the majority of the Court of Appeal of Alberta in Taylor , [57] summarized the problem: “In our view, there was

on the part of medical personnel an unfortunate acquiescence in permitting agents of the government, the police, to be side-by-side withmedical personnel engaged in a medical procedure. In so doing, there was a failure on the part of the hospital to comply with its “duty torespect a person’s privacy”. [89] In short, the

section 8 Charter right was violated by obtaining the confidential information and by the proximity of the policeofficers throughout the defendant’s hospitalization. The second issue: Should the judicial orders be declared invalid? [90] In the event of a finding that obtaining the information was a violation of a right guaranteed under

section 8 of the Charter, theCrown admits that there were insufficient grounds for issuing the production order and the warrant and that they were therefore invalid.Obviously, the Court is not bound by such an admission. [91] In such circumstances, what should the Court do? In Grant (1993), the Supreme Court summarized the approach:[58] The constitutional test for the sufficiency of information underlying a warrant was stated by this Court in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, at p. 1452, as follows: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In Kokesch, supra, this Court determined that evidence obtained during a search under warrant had to be excluded under s. 24(2) ofthe Charter where the warrant was procured through an information which contained facts solely within the knowledge of police as aresult of a Charter violation.

However, in circumstances such as the case at bar where the information contains other facts in addition tothose obtained in contravention of the Charter, it is necessary for reviewing courts to consider whether the warrant would have beenissued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra. In this way, thestate is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which wouldhave been issued in any event.

Accordingly, the warrant and search conducted thereunder in the case at bar will be consideredconstitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional perimeter searchesbeen excised from the information. [92] After a consideration of the information filed in support of the search warrant and the production order, the Court, like theCrown, finds that if the material obtained in breach of the Charter had not been in the information, the justice of the peace could nothave granted the judicial authorizations.

Consequently, the search warrant and the production order are declared invalid. The third issue: Since the judicial authorizations are invalid, were the defendant’s

section 8 Charter rights violated by the seizure of the bloodsamples, the toxicology results, and her medical report? [93] The defendant has a reasonable expectation of privacy in the blood samples taken, the toxicology results, and her medicalrecord. A seizure by the police must be authorized by statute. Because the judicial authorizations have been invalidated, the Crown mustshow that the seizure was authorized by another statute, which it has not done. Consequently, the seizure of this evidence was carried outin breach of

section 8 of the Charter. The fourth issue: Given the breach of

section 8 of the Charter, should the blood samples, the toxicology results, and the medical record be excludedfrom the evidence under subsection 24(2) of the Charter? [94] The Court finds it important to note at the outset that there is no distinction between the blood samples, the toxicology results,and the medical report. These elements would never have been in the possession of the authorities without the information obtained inbreach of the defendant’s Charter rights.

A. The applicable legal principles [ 95 ] The purpose of subsection 24(2) of the Charter is to maintain the good repute of the administration of justice. [59] This expression must be “understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system”. [60] The purpose is also prospective, as a Charter violation signifies that damage has already been done to the administration of justice.

Section 24(2) seeks to ensure that the breach does no further damage to the administration of justice. [61] Finally, the purpose is societal; it is not aimed at punishing the police or providing compensation to the accused.

It relates to “the broad impact of admission of the evidence on the long-term repute of the justice system”. [62] [ 96 ] In Grant (2009), McLachlin and Charron JJ., writing for the majority of the Supreme Court, summarize the applicable test: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role in a section 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [63] [ 97 ] The Crown argues that, given that the facts in Erickson are analogous to those in this case, the Court should follow the example of the Court of Appeal of Alberta and the Supreme Court of Canada and not exclude the evidence under subsection 24(2) of the Charter . [64] [ 98 ] With respect, the test governing the exclusion of evidence under subsection 24(2) at the time was different from the one prevailing today, following the judgment in Grant .

Erickson was rendered during the era of the distinction between material evidence and self-incriminating evidence. At the time, as a general rule, labelling evidence as material usually led to its inclusion when the violation was not serious. [65] Because the test has changed and every case turns on its own facts, the Court must analyze the evidence using the new test. B. Application to the facts of this case 1.

The seriousness of the Charter -infringing state conduct [ 99 ] Beyond obtaining the information in the paragraph at issue, all of the police officers’ actions led to violations of the defendant’s privacy and confidentiality. This was all done knowingly by the police officers. [ 100 ] The confidentiality of the information in our medical records is protected by a multitude of statutes. For at least thirty years, the Courts have been saying that agents of the government must respect the separation between medical care and investigation.

Nevertheless, the officers’ zeal, misplaced curiosity, and questions despite their awareness of the confidentiality breach, all under the guise of good intentions, render their actions serious. The Court must distance itself from such conduct. [ 101 ] Moreover, the Court cannot disregard hospital staff’s breach of the right to confidentiality, which contributed to the seriousness of the conduct. [66] [ 102 ] All of these reasons weigh in favour of excluding the evidence. 2.

The impact of the breach on the accused's Charter rights [ 103 ] This issue highlights the significance of the impact of the violation on Charter rights. [67] [ 104 ] The territorial, personal and informational aspects of privacy are all affected. The impact of the violation is therefore significant. This weighs in favour of excluding the evidence. 3. Society’s interest in seeing the case judged on its merits [ 105 ] Society expects these charges to be judged on their merits.

This issue requires the Court to determine whether the search for truth is better served by excluding or admitting the evidence. [68] The reliability and necessity of the evidence to the Crown are relevant

considerations. [69] [ 106 ] The seriousness of the offence is also a consideration, but it cuts both ways. [70] As the majority of the Supreme Court wrote in Grant , “Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system.

Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus.” [71] [ 107 ] Later on in that judgment, the majority of the Court added, “The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”. [72] [ 108 ] The defendant is charged with a very serious offence that is constantly denounced by the courts and the legislature because of its potentially tragic consequences.

The facts in this case confirm the worst fears associated with impaired driving: two persons died as a result of the accident. [ 109 ] The evidence is material, reliable and necessary to the Crown. Without the blood sample, the toxicology results, and the medical report, the Crown would not be able to prove the offence, thereby hampering the search for truth. [ 110 ] The Charter , however, protects rights over the long term. In the eyes of the Court, an informed and reasonable citizen would privilege this long-term protection.

What can be added to LaForest J.’s observation from nearly 30 years ago: “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 hospitals to the police, were allowed”. [73] In short, “[s]uch a practice would bring both the administration of health services and the administration of justice into disrepute”. [74] [ 111 ] The analysis of this issue weighs in favour of excluding the evidence. 4.

The balancing (between individual and societal interests) [ 112 ] The Court must weigh the various factors identified in the three issues against each other to determine whether, when all is said and done, the use of the evidence obtained in breach of the Charter would throw the administration of justice into disrepute. [75] [ 113 ] The police may sometimes, even with the best of intentions and without malice, go beyond what society is ready to accept as their work.

Unfortunately, actions in breach of our fundamental rights occurred in a case that caused the death of two persons and injured others who found themselves at the wrong place at the wrong time. The Court repeats, the police officers must carry out their mandate and have the legal tools to do so. But they must also know when lines have been crossed and step back. [ 114 ] After a weighing of all the factors, the Court is of the view that the use of the evidence would throw the administration of justice into disrepute.

CONCLUSIONS For all of these reasons, the Court: GRANTS the motion; DECLARES that the information contained in paragraph 4 of the information filed in support of the search warrant and production order was acquired in breach of

section 8 of the Charter ; DECLARES the search warrant issued on August 15, 2012, and the order of production issued on August 15, 2012, to be invalid; DECLARES the seizure of the blood samples taken, the toxicology results, and the defendant’s medical record to be in breach of

section 8 of the Charter ; EXCLUDES the evidence of the blood samples taken, the toxicology results, and the defendant’s medical record. __________________________________ THIERRY NADON, J.C.Q.

Mtre Lucie Martineau For the prosecution Mtre Pierre Joyal For the defendant Dates of hearing: April 9 and 10 and May 4, 2015 [1] R-2 at 53. [2] R-2 at 53. [3] R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945. [4] Stoffman v. Vancouver General Hospital, (SCC), [1990] 3 S.C.R. 483, R. v. Dersch, (SCC), [1993] 3S.C.R. 768. [5] Stoffman, supra at 516. [6] Dersh, supra at 776. [7] 2010 SCC 55 at para. 20. [8] R. v. Dyment, (SCC), [1988] 2 S.C.R. 417 at 431. [9] R. v. Cole, 2012 SCC 53 at para. 35. [10] R. v. Tessling, 2004 SCC 67 at para. 25. [11] R. v. A.M., 2008 SCC 19 at para. 33, R v.

Patrick. 2009 SCC 17 at para. 14. [12] Cole, supra at para. 40. [13] A.M., supra at para. 36. [14] R. v. Evans, (SCC), [1996] 1 S.C.R. 8 at para. 11 (Sopinka J.). [15] Patrick, supra at para. 26. [16] R.v. Silveira, (SCC), [1995] 2 S.C.R. 297, R v. Feeney,[1997] S.C.R. 13. [17] R. v. Wong, (SCC), [1990] 3 S.C.R. 36. [18] R. v. Campbell, 2011 SCC 32. [19] R. v. Wise, (SCC), [1992] 1 S.C.R. 527. [20] Tessling, supra at para. 21. [21] R. v. Monney, (SCC), [1999] 1 S.C.R. 652, R. v. Golden, 2001 SCC 83. [22] R. v.

Rodgers, 2006 SCC 15. [23] Dyment, supra, Dersch, supra, Pohoretsky, supra. [24] Cole, supra at para. 49. [25] R. v. Plant, (SCC), [1993] 3 S.C.R. 281, Tessling, supra at para. 26. [26] A.M., supra at para. 68. [27] R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20 at 53; Patrick supra at para. 38. [28] Tessling, supra at para. 23, Gomboc, supra at para. 19, Cole supra at para. 42. [29] Cole, supra at para. 46. [30] See also Public Health Act, R.S.Q., c. S. 2-2, ss. 131–135, Act Respecting the Sharing of Certain Health Information, R.S.Q., c. P-

9.000, Medical Act, R.S.Q., c. M-9, ss. 42, and Act Respecting Access to Documents Held by Public Bodies and the Protection ofPersonal Information, R.S.Q., c. A-2.1 (ss. 3 and 7, 53–63) [31] C.Q.L.R., c. S-4.2. [32] Subsection 19(7) and s. 19.0.1 A.H.S.S.S. [33] Subsection 19(1) A.H.S.S.S.; see also ss. 19–28 [34] Subsection 19(7) and 19.0.1. A.H.S.S.S. [35] Subsection 19(10) A.H.S.S.S., s. 9, Act to Protect Persons with regard to Activities Involving Firearms, R.S.Q., c.

P. 38.0001. [36] For mandate or contract for services, see s. 27.1, 27.2 A.H.S.S.S. [37] Subsection 19(8) A.H.S.S.S., s. 192 Professional Code. [38] R.S.Q., c. M-9, r. 17. [39] Code of ethics of nurses, R.S.Q., c. I-8, r. 4.1, s. 31. [40]

Section 20, Code of Ethics of Physicians. [41]

Section 21, Code of Ethics of Physicians. [42] (SCC), [1992] 2 S.C.R. 138 at 148. [43] Dyment, supra at para. 29. [44] Dyment, supra at para. 27. [45] Dyment, supra at para. 28. [46] R. v. Erickson, 1992 ABCA 69, aff’d (SCC), [1993] 2 S.C.R.

Section 9 of the A.H.S.S.S. provides that noperson may be made to undergo care except with his consent; specimen taking is included in the definition of care. [47] Dyment, supra at para. 29. [48] R. v. Taylor, 2013 ABCA 342 at para. 22, aff’d for other reasons 2014 SCC 50. [49] R. v. Gagnon, . (Que. C.A.). [50] Dersch, supra at 778. [51] Supra. [52] Dyment, supra, Erickson, supra at para. 20. [53] Sections 254 and 256 Cr.

C. [54] The coroner’s duties include establishing the identity of the deceased person; the date and place of death; the probable causes ofdeath, that is, the disease, pathological condition, trauma or intoxications having caused, led to or contributed to the death (ActRespecting the Determination of the Causes and Circumstances of Death, R.S.Q., c. R-02, s. 2). The coroner’s tasks do not includemaking any finding of civil liability or criminal responsibility of a person (s. 4).

The physician or any person must inform the coroner ora peace officer where the cause of death cannot be determined or when the death may be the result of negligence or in obscure or violentcircumstances (ss. 34, 36). The coroner must investigate when notice is given and to this end require a peace officer to carry out the work(ss. 45, 47). The coroner may examine the records in hospitals (Part 1,

Chapter II, Title II, A.H.S.S.) when a person dies there (s. 48.1).The consultation of the record is possible only in the context of the coroner’s duties and he must return it once it is no longer required.Minutes must be drawn up (s. 58–59). A police officer may not seize this record without the authorization of the coroner (s. 67). [55] Police Act, R.S.Q., c. P.13.1, s. 48, R. v. Godoy, (SCC), [1999] 1 S.C.R. 311 at 320, para. 15. [56] Colarusso, supra at 57. [57] Supra at para. 34. [58] R. v. Grant, (SCC). [59] R. v. Grant, 2009 SCC 32 at para. 67. [60] Grant, supra at para. 68. [61] Grant, supra at para. 69. [62] Grant, supra at para. 70.

[63] Grant, supra at para. 71. [64] To the same effect, see R. v. Dagloia, (Ont. C.A.) and Colarusso, supra. [65] Grant, supra at paras. 59–66. [66] Dersch, supra at 779. [67] Grant, supra at para. 76. [68] Grant, supra at para. 79. [69] Grant, supra at paras. 81–83. [70] Grant, supra at para. 84. [71] Grant, supra at para. 84. [72] Grant, supra at para. 84. [73] Dyment, supra at para. 38. [74] Dyment, supra at para. 38. [75] Grant, supra at paras. 85–86.