R. v. Robert, 2021 MBPC 64

CITATION: R. v. Robert , 2021 MBPC 64 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) E. Hachinski ) ) for the Crown – and – ) ) ) Aaron Robert ) ) M. Wasyliw for the Accused ) ) ) Reasons for Decision ) Delivered: December 16, 2021 CAWLEY, P.J. INTRODUCTION [ 1 ] Mr. Aaron Robert (Robert) is charged with dangerous and impaired operation of a motor vehicle causing bodily harm after the car he was driving collided into a parked dump truck on April 26, 2018. [ 2 ] As a result of the collision, Robert and his girlfriend, Shannon Smith (Smith), suffered serious neck and back injuries.

They were transported by ambulance to the hospital where blood samples were taken from Robert for medical purposes. Later that same day, Winnipeg Police Service Constable Sorokowski (Sorokowski) learned of the existence of the blood samples from a hospital lab technician. The technician told Sorokowski he would place a hold on the samples so they would be available if the police obtained a warrant for their seizure.

Sorokowski applied for, and was granted, a search warrant for Robert’s blood samples and medical records on May 5, 2018. [ 3 ] Robert argues his right to be free from unreasonable search and seizure, pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (the Charter ), was violated when the lab technician disclosed his private medical information without his consent and acted as an agent of the state by holding the samples until a search warrant was obtained.

He also argues the information used to support the issuance of the search warrant was insufficient to establish reasonable grounds for the officer’s belief an offence had been committed. Based on these alleged Charter violations, Robert applies for the exclusion of the blood sample evidence and his medical records pursuant to section 24(2) of the Charter . [ 4 ] For the reasons that follow, his application is dismissed.

SUMMARY OF THE EVIDENCE [ 5 ] The evidence in support of the Charter motion comes from the Information to Obtain (ITO) the search warrant filed by Sorokowski. The ITO discloses that Robert and Smith had been at the Confusion Corner Bar and Grill in Winnipeg on three occasions, between 5:38 p.m. and 12:05 a.m., on the evening of April 25, 2018. [ 6 ] At approximately 12:30 a.m. (April 26) Robert was driving westbound on Grant Avenue, a major roadway in Winnipeg with two lanes of traffic in each direction, when he collided with a dump truck parked in the median lane.

The dump truck was being used for street cleaning. The truck was also facing westbound Grant Avenue at the intersection of Elmhurst Drive. The truck had lights and flashers activated, per City of Winnipeg regulations, to alert approaching motorists. [ 7 ] Emergency personnel attended to the collision and noted a strong odour of alcohol when they removed Robert from his car. Robert told paramedics he had been drinking that night.

The police also found an empty prescription pill bottle, in Robert’s name, located near the car. [ 8 ] Robert and Smith were transported to the hospital, by ambulance, for treatment. [ 9 ] Sorokowski was one of the officers investigating the collision. He interviewed witnesses and reviewed information concerning Robert’s manner of driving and alcohol consumption. The server from the bar knew Robert as an ex-employee and observed him drinking alcohol that night.

The street sweeper operator witnessed the collision and observed Robert’s car appear to speed up as it moved into the curbside lane of Grant Avenue when attempting to pass the dump truck. The driver of the dump truck advised the impact of the

collision caused his truck to move forward. [10] Sorokowski went to the hospital and spoke with a lab technician who told him Robert had provided blood samples. It is anagreed fact this conversation took place at 9:20 a.m. on April 26, 2018 and occurred, as described in paragraphs 14 and 15 of the ITO, asfollows: 14. I interviewed Senior Lab Technician Jeff BAQUIRAN who told me that blood samples for Aaron ROBERT were drawn on April 26,2018 at 01:20 am by ER staff upon his admission. These samples were received by night lab technicians Jennifer TANAPA and AmaldaSALINAS. 15.

Jeff BAQUIRAN told me that the blood samples are still present with the Hematology Lab at the Health Sciences Centre. He toldme that he will immediately place a hold on those samples so that they are available to police upon issuance of a Warrant. [11] Based on the information about Robert’s manner of driving, alcohol consumption and the smell of liquor, Sorokowski believedRobert’s ability to drive was impaired by alcohol or drugs at the time of the collision.

Sorokowski applied for a search warrant to seizeRobert’s blood samples and unedited hospital records as evidence concerning the commission of the impaired driving offence. He wasgranted a search warrant on May 5, 2018. ISSUES Did Sorokowski Unlawfully Search and Seize Private Medical Information when he Spoke to the Lab Technician? [12] Defence argues that, in light of the Personal Health Information Act, C.C.S.M. c.P33.5 (PHIA), R. v. Mellenthin, (SCC), [1992] 3 SCR 615, and R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417, Sorokowski’s interview with the labtechnician and the technician’s disclosure about Robert’s blood samples is illegal because:

a) Robert did not consent to providing a blood sample;

b) Even if he gave implied consent, his consent was limited to medical purposes; and

c) It was reasonable to expect the blood samples would be destroyed once they were no longer required for a medical purpose. [13] The Crown argues Sorokowski’s interview of the lab technician was not a “search” for Charter purposes. Robert did not have areasonable expectation of privacy in the fact he provided a blood sample to hospital staff. Sorokowski did not ask for, and was notprovided with, the results of any blood analysis. The information shared with Sorokowski was permitted under PHIA.

As for Robert’sallegation that he did not consent to provide a blood sample, the Crown highlights Robert did not testify and argues the only reasonableinference to draw is that he gave his implied consent when he attended the hospital for treatment. Analysis [14]

Section 8 of the Charter protects territorial, personal and informational privacy interests from unreasonable state search orseizure. When assessing whether s. 8 was violated, it is important to recognize “…not every form of examination conducted by thegovernment will constitute a ‘search’ for constitutional purposes’’ (R. v. Evans, (SCC), [1996] 1 S.C.R. 8 (at para 11)).It is only where the applicant has a reasonable expectation of privacy in the subject of the state intrusion, will s. 8 be engaged (R. v.Hunter et al. v. Southam Inc., (SCC), [1984] 2 SCR 145 at 159-60).

If there is no reasonable expectation of privacy,there is no “search” for Charter purposes. [15] In cases such as this one, involving informational privacy interests, it is also important to appreciate s. 8 aims to protect a “…biographical core of personal information” which may reveal, “intimate details of the lifestyle and personal choices of the individual” (R.v. Plant, (SCC), [1993] 3 SCR 281 (at p 293)). Not all information shared with law enforcement necessarily meets thisdefinition (See R. v. Telfer, 2021 MBCA 38 at para 62 and R. v.

Baldovi, 2016 MBQB 221 at para 63). [16] There is no dispute medical test results, including a person’s blood alcohol content, reveals intimate details of a person’slifestyle and choices. The sharing of such information with the police without judicial authorization violates s. 8 of the Charter (see R. v.Dersch, (SCC), [1993] 3 S.C.R. 768 at para 22). [17] The Supreme Court also made clear in Dyment there is a reasonable expectation of privacy in blood sample evidence taken formedical purposes and hospital staff should not give blood samples to law enforcement unless there is authorization to do so.

This case isdistinguishable from Dyment because Sorokowski did not ask about test results or request the lab technician hand over Robert’s bloodsamples without a warrant. Sorokowski simply received information that blood samples existed and were being stored at the hospital lab.The main issue for this Court to consider is whether Robert had a reasonable expectation of privacy in this information. [18] Other Courts have concluded there is no reasonable expectation of privacy in basic medical information such as the fact a bloodsample was taken (R. v. Day, [1998] O.J. No. 4461 (Ont.C.A.) and R. v.

Lachappelle, [2003] O.J. No. 5274 at para 41, aff’d 2007 ONCA655 , [2007] O.J. No.3613 (C.A.), leave refused [2007] S.C.C.A. No. 584). [19] More recent decisions of the Supreme Court of Canada have provided further guidance on how to assess whether there is areasonable expectation of privacy in a particular piece of information (See R. v. Patrick, 2009 SCC 17, R. v. Gomboc, 2010 SCC 55, R. v.Spencer, 2014 SCC 43). The Court must look not only at the nature of the information, but also at the nature of the information it reveals(Spencer at paras 26 and 32).

The determination is made by assessing four main areas: 1. The subject matter of the alleged search; 2. The claimant’s interest in the subject matter;

3. The claimant’s subjective expectation of privacy in the subject matter; and 4. Whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances. [20] I turn now to consider these areas with regard to the evidence in this case. The Subject Matter of the Alleged Search [21] The subject matter of the alleged search is the fact Robert provided a blood sample and its location in the hospital lab.

The Claimant’s Interest in the Subject Matter [22] Robert has a direct interest in any medical treatment he has received which includes tests and procedures performed such as thetaking of blood samples. The Claimant’s Subjective Expectation of Privacy in the Subject Matter [23] Robert did not proffer any evidence about his subjective expectation or to support his assertion he did not consent to provideblood samples at the hospital. He argues the Crown has the onus to prove the blood samples were taken consensually but I disagreebecause the police were not involved in that process.

The blood samples were taken by hospital staff for medical purposes and not at therequest of the police. In these circumstances, the burden of proof is on Robert to establish, on a balance of probabilities, theinfringement of his constitutional right (R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at para 30). [24] Based on the evidentiary record, the only reasonable inference to draw is Robert gave his implied consent to provide a bloodsample. I draw this inference because he was conscious when transported and admitted into the hospital to receive treatment for seriousinjuries.

It would be standard procedure to take blood samples in these circumstances (see Lachappelle at para 30). I accept, however,Robert’s consent would have been limited to medical purposes. I am prepared to infer, given the circumstances, Robert had a subjectiveexpectation of privacy in the fact he provided samples. Whether the Subjective Expectation of Privacy was Objectively Reasonable [25] Whether Robert’s subjective expectation of privacy was objectively reasonable requires consideration of several factors (See R.v. Patrick at para 27), including: 1. The place where the alleged “search” occurred; a.

The conversation between Sorokowski and the lab technician occurred at the hospital, a publicly accessible building. Sorokowskidid not trespass on the applicant’s property in order to obtain the information but he was granted special access, as a police officer, to talkto the lab technician about the existence of blood samples. 2. Whether the informational content of the subject matter was in public view; a. Emergency room staff took a sample of Robert’s blood upon his admission to the hospital but there is no evidence before the Courtconcerning where the samples were taken. 3.

Whether the informational content had been abandoned; a. No. 4. Whether such information was already in the hands of a third party and if so, was it subject to an obligation ofconfidentiality; a. The information was in the hands of a third party, the lab technician, who was obliged pursuant to the common law (Dersch at para22) and s. 9(

b) and s. 20(1) of PHIA, to keep Robert’s personal health information confidential subject to the exceptions outlined in s.22(2). Section 22(2)(k.1) permits the disclosure of personal health information without an individual’s consent if the disclosure is “…required in anticipation of or for use in the prosecution of an offence”, but the disclosure must be limited to the minimum amount ofinformation necessary to accomplish the purpose for which it is disclosed (see s. 20(2)). Section 22(3) permits disclosure under s. 22(2)“only to the extent the recipient needs to know the information”. b.

In my view, s. 22 (2)(k.1) authorized the lab technician to disclose the existence and location of the blood samples to the police. Thepolice were at the hospital investigating a serious accident. Despite the fact no charge had been laid, disclosure of the existence of theblood samples was required in anticipation of, or for use in, the prosecution of an offence appreciating the totality of the circumstances.The disclosure was limited to the minimum amount of information necessary to accomplish this purpose. c.

In Dyment, La Forest, J. recognized (at para 30), “…it is one thing to inform, quite another to supply material which, if used,amounts…to conscripting the accused against himself.” Here, the lab technician only informed Sorokowski of the existence of the bloodsamples. This did not guarantee the police would be able to seize and test the blood. Sorokowski first had to obtain a search warrant,which required he establish reasonable and probable grounds to believe an offence had been committed.

This legal procedure safeguardedRobert’s heightened privacy interests in the medical details a blood analysis might provide. 5. Whether the police technique was intrusive in relation to the privacy interest; a. The conversation between Sorokowski and the lab technician was not intrusive. Based on the evidence in the ITO, I find theconversation was brief and limited in scope. The conversation focused on whether blood samples existed and where they were located.

6. Whether the use of the evidence gathering technique was itself objectively unreasonable; a. There is nothing objectionable about the police conduct in this case. The police are expected to investigate motor vehicle accidentsthat result in serious injury. Given the manner of driving, the odour of alcohol, the presence of an empty pill bottle on scene and theadmitted alcohol consumption, it is a reasonable investigative step to attend to the hospital to make limited inquiries about the existenceof bodily samples that could be seized and analyzed if a warrant was obtained.

Importantly, Sorokowski did not ask about test results orattempt to circumvent the proper legal procedure for obtaining more detailed medical information like the police did in R. v. Campbell,2019 ONCA 258. 7. Whether the information content exposed any intimate details of the applicant’s lifestyle, or information of a biographicnature. a. No. The information communicated to the police in this case was basic and limited. It was not part of a biographical core ofpersonal information. The fact blood samples existed revealed nothing of Robert’s lifestyle and personal choices.

Unlike the facts inSpencer, where internet subscriber information gathered without warrant was the linchpin to conviction, the information about Robertproviding blood samples did not provide a strong inference linking him to a particular behavior. There is nothing inherently informativeabout the fact a blood sample exists. [26] Balancing all of these factors leads to the conclusion any subjective expectation of privacy held by Robert was not objectivelyreasonable.

The fact blood samples existed was “neutral medical information” that did not engage a reasonable expectation of privacy(Dersch at para 23). [27] Charter protection under s. 8 is limited to reasonable expectations of privacy because the law recognizes there may becircumstances where “…the public’s interest in being left alone by government must give way to the government’s interest in intrudingon the individual’s privacy in order to advance its goals, notably those of law enforcement” (Hunter v. Southam, (SCC),[1984] 2 S.C.R. 145 at pp.159-60 and R. v. Gomboc, 2010 SCC 55 at para 34).

In my view, the limited inquiry made by Sorokowski atthe hospital appropriately balances Robert’s privacy interests with society’s interest in effective law enforcement. The interview with thelab technician was not a “search” for Charter purposes.

Section 8 was not violated. Was

Section 8 Violated When the Lab Technician Agreed To Hold the Blood Samples for the Police until they Obtained aWarrant? [28] Defence argues the lab technician acted as an agent of the state and violated s. 8 of the Charter when he agreed to hold theblood samples until a warrant was obtained. Defence also argues the hospital was required to have a written policy concerning theretention and destruction of personal information per s. 17(1) of PHIA and there is no such policy before the Court.

The lab technicianmay have been under an obligation to destroy the blood samples and failed to comply with that policy. [29] The Crown argues the lab technician did not act as an agent of the state because the blood samples were taken in the ordinarycourse for medical purposes and not at the request of the police. The blood samples were already under the hospital’s control whenSorokowski spoke to the lab technician. The samples were not given to the police until a search warrant was issued for their seizure.

Asfor the allegation the hospital held the blood samples beyond the normal retention period, the Crown highlights there is no evidencebefore the Court to support this argument. Analysis [30] While there may be circumstances where hospital staff are considered agents of the state, for example when a doctor takes ablood sample at the request of the police (Dersch at para 20), there is no evidence in this case of any such demand or direction.Sorokowski did not ask the hospital staff to take a sample of Robert’s blood.

He did not ask about test results or request they hold thesample for him until he returned with a warrant. [31] The circumstances outlined in the ITO indicate the lab technician was volunteering, on his own, to hold the samples until awarrant was obtained. Even if Sorokowski asked the lab technician to hold the samples until he obtained a warrant, that does not turn thelab technician into an agent of the state or violate the Charter (see Lachappelle at paras 44-48, R. v. Lunn, (BCCA)and R. v. Fagan, 2020 ABQB 756 at para 44, R. v. Tessier, (1990) (ON CA), 58 C.C.C. (3d) 255 (Ont.

C.A.), aff’dat (1991), (SCC), 69 C.C.C. (3d) 192 (S.C.C.) and R. v. Gettins, [2003] CarswellOnt 4872 (Ont. C.A.)). Merecooperation with law enforcement is not a sufficient basis to find an agency relationship (R. v. Buhay, 2003 SCC 30 at paras 29-30 and R.v. R.M.J.T, 2014 MBCA 36 at paras 73-74 citing R. v. M. (M.R.), (SCC), [1998] 3 S.C.R. 393 at para 28). [32] While non-compliance with existing hospital policy may be relevant to the analysis, Robert has not proffered any evidence tosuggest the lab technician held the samples in violation of an existing policy.

Based on the evidence before this Court, the common lawand s. 22(2)(k.1) of PHIA entitled the lab technician to disclose the fact a blood sample had been taken from Robert. Sorokowski’slimited inquiry about the existence of blood samples and the holding of the samples for a reasonable amount of time, until a warrant wasobtained, was lawful.

Section 8 was not violated. Was the ITO Insufficient to Support the Issuance of the Search Warrant? [33] Defence argues the ITO is insufficient because it does not demonstrate reasonable grounds to believe an offence had beencommitted. He argues the ITO contains evidence of consumption of alcohol but it does not contain evidence of impairment of Robert’sability to drive. There is no information suggesting impairment of Robert’s cognition, coordination or balance.

There is no informationabout the intoxicating effects, if any, of the medication listed on the pill bottle found near the scene. [34] Defence argues the police had an unexplained accident without significant erratic driving. At worst, the ITO demonstratesRobert made one driving error. Defence filed numerous cases to illustrate similar fact scenarios where the Court concluded the“reasonable grounds to believe” threshold was not met.

[35] The Crown argues there were ample grounds to justify the issuance of the search warrant when the ITO is assessed as a whole.There was an unexplained high impact collision that caused significant injuries. Robert admitted consuming alcohol and a strong odourof alcohol was detected when removing him from his car. The reasonable and probable grounds test was easily met. Analysis [36] A search warrant is valid where the ITO, as a whole, discloses reasonable grounds to believe an offence has been committedand that evidence of that offence will be found at the specified time and place (R. v.

Campbell, 2011 SCC 32 at para 14 and R. v.Pilbeam, 2018 MBCA 128 at para 10). The reasonable grounds to believe threshold is met where there is an objective basis for the beliefthat is based on compelling and credible information (Pilbeam at para 11). It is the point where “credibly-based probability replacessuspicion” (Canada (Director of Investigation & Research, Combines Investigation Branch) v.

Southam Inc., (SCC),[1984] 2 S.C.R. 145 (S.C.C.) at 167.) [37] Robert bears the burden of demonstrating the ITO is insufficient because the search warrant is presumed valid (Campbell atpara 14). [38] A reviewing judge is to decide whether the ITO before the authorizing justice, as corrected and amplified on review, provides“any basis upon which the authorizing judge [or justice] could be satisfied that the relevant statutory preconditions existed” (R. v. Lising,2005 SCC 66 at para 30 and Pilbeam at para 8).

As a reviewing judge, it is also important to appreciate the standard of “reasonablegrounds to believe” is not an onerous test (R. v. Jacob, 2013 MBCA 29 at para 34). In the impaired driving context, a police officer needonly reasonably believe, based on the totality of the circumstances, that a person’s ability to drive is slightly impaired by alcohol or drugs(R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (ont. C.A.), aff’d (SCC), [1994] 2 S.C.R. 478(S.C.C.)). [39] The ITO in this case, when considered as a whole, contains ample grounds to justify the issuance of the search warrant.

Iteasily demonstrates a basis that the authorizing Judicial Justice of the Peace could be satisfied the preconditions to grant the warrantexisted. [40] Sorokowski’s subjective belief that there were reasonable grounds to believe Robert had committed the offence of impaireddriving was objectively reasonable (R. v. Storrey, (SCC), [1990] 1 S.C.R. 241). The ITO demonstrates Robert wasdriving erratically. He collided with a parked dump truck that should have been visible because it had emergency lights activated. Awitness to the collision observed Robert increase his speed as he attempted to pass the truck.

He struck the dump truck with such force hemoved it forward causing serious injury to himself and his passenger. The circumstances demonstrate far more than a simple drivingerror. [41] When emergency personnel arrived on scene, they noted a strong odour of alcohol coming from Robert who later admitted hehad consumed alcohol. In addition, the ITO contained information from a witness who knew Robert and had observed him drinkingalcohol at a bar earlier that night.

The fact no information was provided about the potential intoxicating effects of the prescriptionmedication, indicated on a pill bottle found near the scene, was not a material omission given the other evidence about alcoholconsumption. Sorokowski did not have to detail specific observations about Robert’s cognition, coordination or balance although anysuch observations would have strengthened his grounds further. [42] The defence cases provided, demonstrating circumstances where Courts have found the “reasonable grounds to believe”threshold had not been met, are factually distinguishable (R. v.

Rhyason, 2007 SCC 39, R. v. Cooper, 1993 CarswellOnt 31, R. v.Bernshaw, (SCC), [1995] 1 S.C.R. 254, R. v. Soczynski, [2006] B.C.J. No. 595, R. v. Shepell, (MBPC), R. v. Wyryha, 2010 MBPC 17, R. v. Pawlyshyn, 2010 MBPC 40, R. v. Rutherford, 2011 MBPC 30, R. v. Gorman, [1995] O.J.No. 1915, R. v. Higgins, 2001 MBQB 65, R. v. Morris, 1998 NSCA 229).

Our Court of Appeal has cautioned about placing too muchweight on prior decisions considering whether the “reasonable grounds to believe” threshold is met because each case is unique(Pilbeam at para 13). [43] In this case, the manner of driving evidence in combination with the nature of the accident, the severity of the injuries, thesmell of alcohol on Robert and his admitted alcohol consumption, established reasonable grounds to believe the offence of impaireddriving cause bodily harm had been committed. The ITO was sufficient. The search warrant was valid.

Section 8 of the Charter was notviolated. CONCLUSION [44] While Dyment cautioned (at para 38) there should not be an “easy and informal flow of information” from hospitals to thepolice, La Forest J. also stated, “…there are well known and recognized procedures” for obtaining blood sample evidence when thepolice have reasonable and probable grounds for believing a crime has been committed. That procedure was followed when Sorokowskiobtained a search warrant. [45] There was no violation of Robert’s right to be free from unreasonable search or seizure. [46] The application to exclude evidence is dismissed. “Original signed by:” CAWLEY, P.J.