Her Majesty the Queen - v. -, 2014 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 042 Date: February 19, 2014 Information: 24477943 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jessica Hart Appearing: Mr. T. Healey For the Crown Mr. R. Saretzky and Ms. L. Richardson (S.A.

L) For the Accused DECISION I. J. CARDINAL , J INTRODUCTION [ 1 ] On April 21, 2012, just before 10 p.m, RCMP officer Cst. Cockrum was dispatched to a single vehicle rollover on the Codette grid road near Nipawin, Saskatchewan. Ms. Hart was the lone occupant and driver. She was transported by ambulance to hospital where the hospital drew blood for medical purposes and as well, for the RCMP as a blood demand was made upon Ms. Hart by the officer.

[ 2 ] The Crown is not relying upon the “RCMP blood sample” (RBS). A few days after the accident, the police obtained a search warrant and seized the “Hospital Blood Sample” (HBS) and had it analysed. Ms. Hart was subsequently charged with operating a motor vehicle while impaired and over 80 milligrams of alcohol in 100 millilitres of blood. She contests these charges on the basis the Crown violated her Charter right to counsel such that the hospital blood sample should be excluded from evidence. [ 3 ] The matter proceeded with all of the evidence being called in a voir dire . The Crown called one witness, Cst.

Cockrum to testify. The defence called no evidence. By agreement of both counsel, the evidence from the voir dire will be applied to the trial proper. Both parties indicated they will not be calling any further evidence on the trial proper. FACTS [ 4 ] The facts are not in dispute. Cst. Cockrum was dispatched to the accident scene at approximately 9:46 pm on April 21, 2012, arriving about 9 minutes later at 9: 55 pm. A vehicle was in the south ditch on its roof. Ms. Hart, who appeared to be injured, was outside of the vehicle being attended to by a passerby.

Emergency Medical Services (EMS) arrived, along with other police officers and Fire Department personnel. As Ms. Hart was being attended to by EMS, Cst. Cockrum spoke to others at the scene and at 10:10 p.m. went into the ambulance where Ms. Hart had been placed. She briefly spoke to Ms. Hart and asked her if she had anything to drink, to which Ms. Hart said “ vodka, a lot, a lot”. She was in pain but coherent. The ambulance left the scene and Cst. Cockrum followed it to the Nipawin hospital. [ 5 ] Arriving at the hospital at 10:32 p.m., the officer briefly spoke to Ms.

Hart’s mother, then went into the ambulance and spoke to Ms. Hart. Ms. Hart was laying down on a stretcher, strapped to a spine board with her neck braced. Based upon the accident and information from individuals at the scene who stated they smelled alcohol on Ms. Hart’s breath, and her admission to having consumed a lot of vodka, the officer formed the belief that the ability of the accused to operate a motor vehicle was impaired by alcohol and arrested her for impaired driving. Cst. Cockrum read the breath test demand verbatim from the standard card. Ms. Hart responded, “Right now?

Yes, but I haven’t been doing anything”. When given her rights to counsel from the card, Ms. Hart indicated she understood and upon being asked if she wished to speak to a lawyer, Ms. Hart stated “not right now, no.” The officer read Ms. Hart the police warning but could not recall her response. [ 6 ] Cst. Cockrum did not follow up with Ms. Hart at any point as to whether she wished to contact counsel. At no time did Ms. Hart indicate to police a desire to speak to counsel. [ 7 ] Ms. Hart was removed from the ambulance into the hospital. When speaking to medical staff, Cst. Cockrum was advised that Ms.

Hart would not be able to provide a breath sample but the taking of a blood sample would not cause harm to her. The officer came to the conclusion that Ms. Hart was not be able to provide a breath sample as she was going to be transported to hospital in Saskatoon, was in a neck brace and strapped to a spinal board. Thus, at 10:51 p.m. the officer read the blood demand to Ms. Hart verbatim from the standard card. Ms. Hart refused stating: “No, I’m not giving one.” The officer told her that failure to provide the sample would result in her being charged with refusal. Ms.

Hart then agreed to provide the sample, stating: “Really? Take one right now, take one. Please just take one.” [ 8 ] It is common ground that Ms Hart was not informed of her right to counsel at this juncture. The officer testified that she believed that since she had given the rights to counsel 19 minutes earlier, that was sufficient. She agreed in cross-examination that Ms. Hart’s answer could be interpreted that it still might be open to her to talk to a lawyer. [ 9 ] At 11:15 p.m., the hospital drew the HBS from Ms. Hart for its own purposes as a result of standard operating practices and procedures.

It is this sample the Crown relies upon in evidence to support the charges. Ms. Hart was still under arrest at this point. [ 10 ] At 11:23 p.m., the RBS was drawn from Ms. Hart by Dr. Albertyne and two vials provided to the RCMP. The officer left the hospital at 11:43p.m. leaving Ms. Hart in the care of hospital staff, and by implication, she was no longer under arrest.

[ 11 ] The RBS was subsequently analysed and the resulting analyses was tendered as Exhibit P-1. The Crown, at paragraph 3 of their Brief of Law, notes they are not relying upon these samples to form the basis of the charge: ... as a result of Cst. Cockrum not recalling what response Ms. Hart provided in response to the police warning and as a result of Cst. Cockrum not following up with a further query to Ms. Hart regarding Ms.

Hart’s desire to contact a lawyer. [ 12 ] The Crown concedes and this Court agrees the RBS should be excluded from evidence, and on this basis Exhibit P-1 is excluded from evidence and will not be considered on the trial proper. [ 13 ] The following day, April 22, 2012, Cst. Cockrum called the hospital and let them know the police were in the process of obtaining a warrant for the other blood samples and to make sure they did not destroy them. On April 25, 2012, Cst. Cockrum executed a search warrant at the Nipawin Hospital and seized two vials of the HBS drawn from Ms. Hart at 11:15pm on April 21, 2012.

That blood was submitted to the RCMP Forensic Laboratory and the Certificate of an Analyses (Exhibit P-2) tendered states that Ms. Hart’s blood sample was found to have a blood alcohol content of 212 milligrams of alcohol in one hundred millilitres of blood. [ 14 ] Defence counsel is not challenging the search warrant. As well, Ms.

Hart admits that if the Certificate (Exhibit P-2) is admitted into evidence, the corresponding “read back” provided by the RCMP forensic lab in Exhibit P-5 is admissible and is conclusive proof that her blood alcohol content at the time of driving (estimated at 9:44 p.m.) was between 227 and 242 mg% . Further, defence counsel admits that all of the conditions precedent for admission of the Certificate pursuant to section 254 (3) of the Criminal Code have been met. ISSUE [ 15 ] The sole issue is whether Ms. Hart’s Charter right to counsel guaranteed by s. 10(

b) was violated such that the blood seized from the hospital under the search warrant, and the subsequent Certificate of an Analyses (Exhibit P-2) should be excluded from evidence under a Grant analysis. ANALYSIS

Section 10(b) -Rights to counsel [ 16 ] Counsel for Ms. Hart submits that her s.10(

b) right to counsel was infringed at the time Cst. Cockrum read her the formal blood demand. They submit the failure to provide the right to counsel “taints” the seizure of the hospital blood and that it ought to be excluded from evidence. [ 17 ] The Crown argues that the violation of Ms. Hart’s right to counsel results in the exclusion of the blood obtained as a result of the blood demand only. They submit the right to counsel does not extend to the hospital blood and the resulting certificate (Exhibit P-2). [ 18 ] The onus rests upon Ms.

Hart to prove on a balance of probabilities that her right to counsel was violated. As I understand the argument, defence counsel is taking the position that the right to counsel carries over to the hospital staff such that by collecting the blood for hospital purposes, while the accused is under arrest and detained by the police, the hospital staff are acting as agents of the state. Thus, their actions are considered bound to those of the police. [ 19 ] That is, in my opinion, the only way in which the defence argument can succeed.

The law is clear that unless the hospital is acting as an agent of the police or state, there is no Charter breach. (See R. v. Decap 2003 SKQB 301 at para. 18 )

[ 20 ] While it is true Ms. Hart remained under arrest and was being detained by the police from 10:32 p.m. until 11:43 p.m. when the officer left the hospital, this does not in and of itself, make the hospital staff agents of the state. Such determinations vary on the facts and it is important to review the entire circumstances to determine the role the hospital staff had vis-a-vis the police. [ 21 ] In R. v. Taylor, 2013 ABCA 342 , the accused had been involved in a rollover which injured others. He was arrested at the scene, given his rights to counsel and advised police he wished to speak to a lawyer.

He was reluctantly transported from the accident scene to the hospital by ambulance at the insistence of emergency medical staff. He was not in need of immediate medical care, was ambulatory, coherent, and had indicated he wanted to speak to a lawyer. However, he was never given the opportunity to speak to counsel as the officer did not think to provide his police cell phone to him. The Court found the informational duty was met (s. 10(a)) but the implementation duty (s. 10(b)) was breached. The officer testified that he had a cell phone with him but did not think to allow the accused to use it.

Other officers involved testified as to a variety of reasons why they did not provide the accused access to a phone at the scene or at hospital, but the Appellate Court did not accept those reasons as valid, finding the officers gave no consideration of their duty to facilitate access to counsel in the circumstances. The Court found at para. 16-17 that whether the failure to facilitate contact with counsel was deliberate or due to an admission of negligent performance of duty or ignorance of the law, a s. 10(

b) violation would be made out. [ 22 ] What seems to be the basis of the appellate decision is the finding the police deliberately withheld making the breath demand until after the hospital blood was drawn. The police officer was present when the hospital blood was drawn and given to a porter to take to the hospital laboratory. The officer knew it was common practice to seize the samples and followed the porter to the lab to maintain continuity of the blood samples. The blood demand, pursuant to s. 254(3) of the Criminal Code , was then made and blood drawn pursuant to that demand.

At paragraph 18 the Court observed: 18. We agree with the Appellant that waiting until after the nurse drew blood for hospital purposes exacerbated the adverse impact of the denial of the right to counsel, because the delay helped hide its urgency and the relevance of providing “hospital blood”.

The deliberate decision of the police to defer the demand pursuant to s. 254(3) of the Criminal Code until afer the “hospital blood” was drawn also had the effect of denying to the Appellant the benefit of the formal requirements under s. 254(3) (a)(ii)that, as conditions precedent, must be proved by the Crown to render admissible a certificate of analysis evidencing the concentration, if any, of alcohol in the Appellant’s blood. [ 23 ] However, unlike Taylor , there is nothing in the evidence to show the Constable was deliberately avoiding giving the blood demand until the hospital blood had been drawn.

In fact, it is quite the contrary. Her evidence was that since Ms. Hart could not give the breath demand, she simply made the blood demand. [ 24 ] Further, in Taylor , supra, the Alberta Court of Appeal was highly critical of the police action in that one officer was assigned to track the hospital blood. At paragraph 29 the Court found that the police clearly intended to rely upon the hospital blood and use it for police purposes. At paragraph 32 the Court noted the officer who tracked the hospital blood also handled the hospital blood.

Even if she had not physically handled it, it was clear she was “using her uniform to gather evidence concerning the blood”. [ 25 ] Cst. Cockrum testified she was present with the police blood kit when the doctor drew four samples of Ms. Hart’s blood. Two were for the police kit and were placed into their proper vials, which she sealed and maintained continuity for police purposes. The other two were kept by the doctor, which the officer believed were kept for hospital purposes. She testified she did not ask the doctor for any samples other than those required for the blood kit.

There is no evidence the constable had anything to do with the other two samples at the time they were drawn. There is no evidence she tracked the other two samples nor that she would later simply seize them as a matter of common police practice. [ 26 ] There was some question as to whether the hospital blood seized under the warrant and its analysis (Exhibit P-2), was the same blood that Cst. Cockrum testified to being present when it was drawn. It is possible additional hospital blood was drawn at other times as the officer testified she was not present at all times when the medical staff were attending to Ms.

Hart. After obtaining the RBS, the constable left the hospital, leaving Ms. Hart in the care of the hospital staff. The officer testified that the next day she asked the hospital to hold onto the samples and then she seized the “other two samples” under the warrant. Nothing turns on this, but I accept that the four samples drawn by the doctor in the presence of the officer are the samples in issue here. Those records indicate the hospital blood was drawn first at 11:15 p.m. and the blood demand samples drawn at 11:23 p.m., as this accords with the officer’s evidence of four samples being drawn.

[27] There is also no evidence as to why, the next day, the officer advised the hospital that the police were obtaining a warrant toseize “the other two samples” of blood that the officer was aware had been taken by hospital staff. [28] As observed in R. v. Dersch, (SCC), [1993] 3 S.C.R. 768, the mere fact that physicians participate in emergencytreatment of an accused does not render them agents of government for the purposes of the Charter.

This is so because of the limitationsplaced upon the reach of the Charter as set out in s. 32 of the Charter which provides that the Charter only applies to the federalParliament and government, and the territorial and provincial governments and legislatures.

The Supreme Court of Canada observed insome cases doctors may in fact be found to be agents of the state and thus subject to the Charter: There are some types of circumstances in which a doctor clearly acts as an agent of government in taking a blood sample from a patient.A doctor who takes a blood sample illegally at the request of police is acting as an agent of government and his or her actions are subjectto the Charter....Similarly, a doctor involved in taking a blood sample pursuant to s. 254 or 256 of the Criminal Code ...would be actingas an agent of government, as mandated by statute, and the doctor's actions would be subject to Charter scrutiny. [29] A similar situation as before this Court occurred in Decap, supra.

Blood samples were taken under an RCMP officer’s blooddemand at the Gravelbourg hospital, but the Crown agreed they should be excluded from evidence as the officer did not give the properwarning. Mr. Decap was transferred to the Regina hospital for further medical treatment and blood was drawn there by hospital staff fortheir purposes. The police obtained a search warrant and seized the blood samples.

The accused challenged the search warrant on anumber of fronts, but the Court dismissed those challenges and upheld the search warrant and subsequently allowed the blood samplesand the resulting analyses into evidence. At paragraph 18, Barclay J. stated: 18. Decap contends that the police violated patient confidentiality and the right to have medical tests and records kept confidential andunlawfully caused hospital staff to violate the law and patient right to confidentiality. I disagree. It is critical to underscore that hospitalemployees are not agents of the state.

If the employee is not an agent of the state the consequences would be that there would not be aCharter breach. In R v Lunn (1990), (BC CA), 61 C.C.C. (3d) 193 (B.C.C.A.) an accused was involved in a seriousmotor vehicle collision. The hospital took blood samples for medical purposes. The investigating police officer ascertained from theemployees at the hospital of the existence of a blood sample. He then requested that the hospital refrain from destroying the sample. The blood sample was later seized pursuant to a search warrant.

The British Columbia Court of Appeal held that there was no violationof the accused’s right to protection against unreasonable search and seizure, that hospital staff were not agents of the state and subsequentseizure of the blood samples pursuant to a warrant was valid. [30] In R. v. McDougall, 2013 SKQB 358 (CanII), the search warrant underlying the seizure of hospital blood was in issue. Medicalevidence indicated the blood was taken for medical purposes and not to facilitate the police actions.

The Court found police are entitledto rely on assistance from the hospital without the hospital being found to be agents of the state. [31] Here, unlike McDougall, supra, or R. v. Erickson, 1992 ABCA 69 , [1992] 72 C.C.C. (3d) 75 aff’d (SCC), 81 C.C.C. (3d) 447 (S.C.C.), there was no challenge to the search warrant nor were any medical personnel called to testifyconcerning the taking of the four blood samples, nor did the accused testify as to her state of mind concerning providing hospital bloodsamples. [32] In R. v.

O’Brien, 2005 CarswellOnt 10009, aff’d 2007 ONCA 138, the accused was involved in a serious motor cycle accidentand taken to hospital. The police attended some hours later and learned the hospital had drawn four samples of blood for their purposes. The officer was told of the existence of the blood samples, attended at the hospital lab and placed a police seal on one vial of blood. Hethen obtained a search warrant, seized the sealed vial of blood pursuant to the warrant, and had it analysed by the police forensiclaboratory.

The resulting certificate was allowed into evidence as the Ontario Court of Justice found no Charter breach as the blood hadbeen seized pursuant to a valid search warrant. The court found the police need not exhaust other avenues of obtaining evidence, such asmaking a blood demand, before resorting to a search warrant. [33] In the case of Ms. Hart, while her Charter right to counsel was breached, the appropriate remedy, if any, is connected to theblood seized under the blood demand made by the police officer. The breach of the accused’s right to counsel does not extend to the

hospital staff as they have not been shown to have acted at or on behalf of the police regarding the HBS. The police obtained a searchwarrant and seized the hospital blood samples as a result of a valid search warrant. The blood samples, and the subsequent Certificate ofan Analyses (Exhibit P-2) are admissible into evidence on the trial proper. DECISION [34] With Exhibit P-2 as a full exhibit on the trial proper, coupled with the “read back” in Exhibit P-5, I am convinced beyond areasonable doubt that Ms.

Hart’s blood alcohol content at the time of driving at approximately 9: 44 pm was between 227 and 242 milligrams of alcohol in 100 millilitres of blood, well in excess of the legal threshold of 80 milligrams of alcohol in 100 millilitres ofblood. and I find her guilty of Count 2. [35] With respect to count 1, impaired operation of a motor vehicle, any degree of impairment, from slight to great, will suffice toground a conviction (See R v Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff’d (SCC), [1994] 2S.C.R. 478n). The expert evidence of Ms.

Sandra Korkosh, Forensic Specialist in the Toxicology Services Section, RCMP NationalForensic Services , tendered through Exhibit P-5, states a page 3 of her report: Alcohol is a central nervous system (CNS) depressant which causes a progressive deterioration of sensory, mental and physicalprocesses. As the BAC increases, the neurological deficits caused by alcohol become more numerous and more pronounced. Withrespect to driving, impairment refers to a deterioration of sensory and mental functions to such an extent as to make the operation of amotor vehicle unsafe.

Symptoms of impairment include: deterioration of vision (acuity, depth perception, glare recovery, peripheral vision and distanceaccommodation), lessened attentiveness, diminished judgment and decision making, loss of perception, decreased rate of informationprocessing and delayed reaction time. The loss of inhibitions and increase in self confidence due to consumption of alcohol areassociated with a lack of restraint and prudence which result in risk taking behaviour. Alcohol adversely affects tasks which requireplanning, decision making and impulse control.

Driving is a divided attention activity which requires the driver to perform a number of tasks simultaneously (such as maintaining properlane position, speed, and distance from other vehicles; observation of traffic signs and signals; and monitoring and responding to the everchanging driving environment appropriately). A driver impaired by alcohol will have difficulty dividing attention among multiple tasksand will tend to focus on one component of driving, while negativing others.

While some drivers may not show outward physical signswhen impaired by alcohol, the skills required to operate a motor vehicle safely have deteriorated. ... ...Most persons are impaired in their ability to operate a motor vehicle at a BAC of 50 mg%. Irrespective of tolerance and experiencewith alcohol, ALL persons are impaired in their ability to operate a motor vehicle at BAC of 100 mg%. Intoxication is an advanced state of impairment...

The average drinker, that being a person who consumes alcohol in moderate amounts and who has some tolerance to alcohol, isexpected to be intoxicated at a BAC of 150 mgs% and beyond. For the average drinker, a BAC of 250 mg% or greater is associated witha state of severe intoxication. [36] Ms. Korkosh notes that a person’s experience with alcohol, or their tolerance to it, can impact the outward signs of impairment. Some people may be impaired by alcohol without showing any outward signs, while others with little or no tolerance to alcohol mayshow sings of intoxication at BAC’s of less than 100mg%.

Those with a high tolerance to alcohol may not show any outward signs ofintoxication until levels in excess of 150mg%.

[ 37 ] From the information provided in this case, Ms. Korkosh states at page 4 o f her report that at the time of the collision (2144 hours), Ms. Hart’s blood alcohol content was between 227 mg% and 242 mg % based on the blood obtained via the search warrant. She notes “a person’s ability to operate a motor vehicle would be impaired with a BAC in these ranges and the average drinker is expected to be intoxicated.” [ 38 ] The evidence of the expert Ms. Korkosh is uncontested and I accept it. On all of the evidence, I am convinced beyond a reasonable doubt that Ms.

Hart’s ability to operate a motor vehicle was impaired by alcohol at the time of driving and find her guilty of count 1. However, I enter a conditional stay of proceedings pending the outcome of any appeal. I. Cardinal, J