R. v. Saul Date:, 2013 BCPC 301

Citation: R. v. Saul Date: 20130924 2013 BCPC 0301 File No: 59531-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GARRET ANTHONY SAUL ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE MacKAY Counsel for the Crown: B. Fell; P. Blessin Counsel for the Accused: D. Edwards, Q.C.; B. Edwards Place of Hearing: Chilliwack , B.C. Date of Hearing: September 24, 2013 Date of Judgment: September 24, 2013 [ 1 ] THE COURT: I have considered the arguments put before me with respect to the admissibility of the hospital records. Now,

just to backtrack somewhat and outline the circumstances, on the evidence that I have heard, this investigation came about as a result of a single vehicle motor vehicle accident on August the 9th, 2010. The accused was taken to hospital as a consequence of being found at the scene and involved in that accident. He had injuries, or was suspected of having some injuries, that required treatment at the hospital. The police also attended and were present at the hospital. [ 2 ] I have heard some evidence that there was a blood demand made by the police in connection with a criminal investigation.

The results of that evidence are not before me. Crown has conceded that there were problems with the blood demand and have chosen not to put any of that evidence before the court. [ 3 ] At the same time, or around about the same time, in the same general parameters, in the course of treatment, Mr. Saul had three small vials of blood taken from him by an employee of the hospital, Ms. Boydell, who is, if I have it correctly, a technologist employed, or at least employed at that time, to take samples and deal with the samples by way of entering the samples into the hospital system.

She gave evidence about what transpires as a result of that. [ 4 ] Ultimately, some hospital records were produced that were made the subject of an application by the police approximately a year, I am told, after the accident took place. Specifically, Constable Eden told me this afternoon that he obtained a production order from a justice of the peace that resulted in therapeutic records from the hospital being delivered to the Crown, and those had been marked as Exhibit A on the voir dire . [ 5 ] So it seems that there were some parallel proceedings going on, if I can put it that way.

There was the criminal investigation that proceeded. There were, independently, doctors and nurses and hospital personnel attending to Mr. Saul as a result of injuries, or possible injuries, he had received in what can only be classified as a very severe, traumatic car crash. [ 6 ] There is no evidence that the therapeutic samples were obtained as a result of any direction or command by the attending police officers. The therapeutic samples, on the evidence before me, appeared to have been obtained in the ordinary course of the hospital's business, that is, treating people who are ill or injured.

The records were not turned over to the police immediately. The police officers were likely in a position to know that those records were created, but they were not given over to the police until such time as the police saw fit to pursue that avenue, in other words, get the production order. The production order, as far as I am aware, was properly obtained, that is, on the basis of evidence put before the JP, and the results of the production of this material. [ 7 ] I heard some very forceful argument from both Mr.

Edwards on the part of the accused with the object of convincing me the material ought not to be admitted into evidence because its probative value, in short, is exceeded by the prejudicial effect; the prejudicial effect being, I expect, that these records will show that there is a presence of some amount of alcohol in Mr. Saul's system at the time the samples were taken. I do not know how prejudicial that is at the end of the day.

That would be determined, I suppose, on further evidence that is not on the voir dire but would be part of the trial should this evidence be admitted. [ 8 ] There is evidence on the voir dire of a mistake on the face of the document. Specifically, there is some discrepancy between the three different pages that appear to be the printout of the results of the blood analysis as to the age of Mr. Saul, who is identified as "the subject". Two documents suggest he is 23 and one suggests he is 22. Both cannot obviously be right. [ 9 ] Mr.

Edwards' argument I understand to be that it is up to the Crown to prove that these documents are accurate and reliable, and on the face of it, obviously, at least with respect to that one issue, the age of the subject, they are not reliable. I suppose I could do the math if the date of birth in itself is reliable and determine which of the two is the correct figure.

But I have no independent evidence of what the date of birth is, so even the date of birth might be suspect under these circumstances. [ 10 ] I have also been given argument about the need for the Crown to establish that the samples were given voluntarily. By that, I understood Mr. Edwards' argument to be that it is incumbent on the Crown, in these circumstances at least, where there is obviously an investigation going on and police are present, at least nearby, to show that Mr. Saul was given proper 10(

a) and 10(

b) readings by the attending police officer, and further, was given some information about the potential uses of a therapeutic sample sufficient for him to make an informed decision about whether or not to provide the sample to the hospital personnel. [ 11 ] The Crown, on the other hand, says that this evidence is admissible, that with respect to the blood being obtained, that clearly the evidence before me, specifically that of Dr. Jassal and Ms. Boydell, strongly shows that these samples were taken for legitimate therapeutic purposes. Dr.

Jassal, in his evidence, spoke to this and suggested that alcohol in a person's blood is relevant because it might impact the level of pain that the person would feel and, therefore, might dictate the particular kinds of treatment that might be given to the accused. [ 12 ] Ms. Boydell simply appeared to be saying in her evidence that she was following a direction; that is, it is her job to do this, that she came in, called in that evening sometime after 11:00 p.m., was directed to take samples. She did so. She was not under the command or at the direction of the police when she did so.

She pulled three vials of blood and followed the normal procedures in place with respect to therapeutic blood samples. The data was obtained and stored in the hospital as all other data is in similar cases. [ 13 ] Crown points specifically to several different reasons why the records ought to be admitted: first, that the records are before the court as a result of a judicially authorized procedure.

I accept that point; that independently of that, the Canada Evidence Act would make them available to the court and introducible in the trial by virtue of s. 30; and also by s. 31.2 that, in any event, the principled exception to the hearsay here would operate here to make this evidence available, given that - and I think I am invited to take judicial notice of this - a person in a position of Ms. Boydell could not possibly be expected to recall with certainty and give evidence about exactly what results took place of a certain procedure adopted. Some significant time has passed here.

We are dealing with three years plus. [ 14 ] I am alive to the concerns of the defence about the quality of this material, and certainly there will be more to be said about that, I should expect, at the end of this case. However, I am satisfied that the material is properly admissible on the various bases that the Crown has outlined. I do not find that, under the circumstances, there is any valid objection to the admissibility of the material based on any defective or absent reading of the Charter rights to Mr. Saul, and again, by saying so, I fully appreciate that there are other problems

that will be addressed in the fullness of time and have to do with what use I make of these records at the end of the day. [ 15 ] So the records go into evidence. (DISCUSSION BETWEEN THE COURT AND CROWN) [ 16 ] MR. BLESSIN: First, Your Honour, the ruling, does that include the viva voce evidence of Dorothy Boydell and Dr. Jassal in the trial proper? [ 17 ] THE COURT: Yes. Yes, the viva voce evidence goes in, as well. (ORAL RULING ON VOIR DIRE CONCLUDED) _____________________ R.C. MacKay J.