R. v. Cartwright (J.E.), 2015 NBCA 42

• Judge: Richard, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 21, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 42;(2015), 438 N.B.R.(2d) 112 (CA)

R. v. Cartwright (J.E.) (2015), 438 N.B.R.(2d) 112 (CA);

    438 R.N.-B.(2e) 112; 1141 A.P.R. 112

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JL.009

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JL.009

Joseph Edward Cartwright (appellant) v. Her Majesty the Queen (respondent)

(92-14-CA; 2015 NBCA 42)

Indexed As: R. v. Cartwright (J.E.)

Répertorié: R. v. Cartwright (J.E.)

New Brunswick Court of Appeal

Richard, Quigg and Green, JJ.A.

July 9, 2015.

Summary:

Résumé:

The accused was charged with two counts of impaired driving causing death and one count of impaired driving causing bodily harm. He moved for the exclusion of evidence pursuant to s. 24(2) of the Charter, arguing that his ss. 8, 10(a) and 10(b) Charter rights were violated. He also moved for an order quashing a search warrant pursuant to which police obtained blood samples taken from the accused at the hospital.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2014), 428 N.B.R.(2d) 1; 1116 A.P.R. 1, denied the motions. The accused appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - Cartwright was the driver of a vehicle that crashed, resulting in the death of two passengers - An investigative detention arose at the scene, but the police officer was unable to immediately advise Cartwright of his Charter rights because the paramedics needed to take him to the hospital - The blood that was taken by a nurse for medical purposes was later seized by warrant and used as evidence at Cartwright's trial for impaired driving offences - The trial judge rejected Cartwright's assertion that the blood evidence should be excluded on the basis of a Charter breach, stating "The blood in question was drawn for medical purposes unrelated to police conduct. There is no indication that medical staff were working in concert with or as the agents of the police in drawing the hospital blood." - The New Brunswick Court of Appeal agreed with the trial judge - This was not a case where the police deliberately waited until after the hospital had drawn blood to make a blood demand - The blood was not obtained by a medical procedure intentionally directed by the police in dereliction of the duty to advise of Charter rights - See paragraphs 20 to 25.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - Cartwright was the driver of a vehicle that crashed, resulting in the death of two passengers - He was taken to a hospital where a blood sample was taken for medical purposes - Cartwright was charged with, inter alia, impaired driving causing death - He argued that the blood sample, medical records and other evidence obtained by a police officer without his consent was contrary to the privacy provisions of the Health Services Act and s. 8 of the Charter - The trial judge held that the officer's inquiries and the information she obtained were confined to confirming the existence and location of the blood sample and medical records - This could hardly be considered private and confidential information in the circumstances - There was no violation of either the Health Services Act or s. 8 of the Charter - The New Brunswick Court of Appeal affirmed the trial judge's conclusion - See paragraph 26.

Civil Rights - Topic 1403

Security of the person - Law enforcement - Search warrants - Cartwright was the driver of a vehicle that crashed, resulting in the death of two passengers - A warrant was issued which authorized a police officer to search for and retrieve medical records and blood samples taken from Cartwright at a hospital following the accident - Cartwright moved for an order quashing the warrant on the grounds that his s. 8 Charter rights were violated because the officer failed to inform the issuing judge that medical personnel had not been advised of the blood demand - The trial judge dismissed the motion - On appeal, Cartwright argued that the officer did not inform the issuing judge that she had told medical personnel of the blood demand - The New Brunswick Court of Appeal dismissed the appeal - If Cartwright's concerns did indeed amount to flaws in the Information to Obtain, they were so insignificant that the warrant would have issued regardless - See paragraph 27.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See both Civil Rights - Topic 1217 and Civil Rights - Topic 1403 ].

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See second Civil Rights - Topic 3604 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The New Brunswick Court of Appeal summarized the principles to be applied in determining when a detention began as it related to the Charter - "1. The test to determine when detention crystallizes is an objective one. 2. Detention refers to the suspension of an individual's liberty interests by physical or psychological restraint. 3. Physical restraint is obvious; psychological restraint is defined as: a legal obligation to comply, or where a reasonable person would conclude by reason of the state conduct that he or she has no other choice but to comply. 4. To determine whether a reasonable person would conclude that they have no choice but to comply, the following factors are relevant: a) the circumstances giving rise to the encounter with the police, as reasonably perceived by the individual; particularly where the police are conducting general inquiries or targeting an individual for 'focused investigation'; b) the nature of the police conduct, including language used, physical contact, location, presence of others, and duration of encounter; and c) the particulars of the individual in question, including age, physical stature, minority status, and level of sophistication." - See paragraph 14.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Cartwright was the driver of a vehicle that crashed, resulting in the death of two passengers - He was being assessed in an ambulance when a police officer arrived - The officer asked Cartwright how many people were in the car and noted the smell of alcohol on Cartwright's breath and a dry white substance around his mouth - She read the Motor Vehicle Act compulsory reporting caution and standard police caution - Cartwright began "sputtering out things" about how the accident had happened and stated that he had consumed two beer earlier - At this point (12:10 a.m.), the officer believed she had reasonable and probable grounds to arrest Cartwright, but she was unable to arrest him and advise him of his Charter rights until he was discharged from the hospital later that night - Cartwright argued that his ss. 10(a) and 10(b) Charter rights were violated when the officer elicited statements from him in the back of the ambulance without advising him of his Charter rights - The trial judge held that there was no Charter violation, as Cartwright's detention did not crystallize until 12:10 a.m. - The New Brunswick Court of Appeal agreed - Prior to 12:10 a.m., the officer was "orienting herself to the situation", "sorting out the situation", and "engaged in a general inquiry" - The facts objectively supported the officer's subjective belief as to when detention occurred - See paragraphs 14 to 19.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See second Civil Rights - Topic 3604 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See second Civil Rights - Topic 3604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See second Civil Rights - Topic 3604 ].

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See second Civil Rights - Topic 3604 ].

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - [See Civil Rights - Topic 1403 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Civil Rights - Topic 1403 ].

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - [See Civil Rights - Topic 1403 ].

Police - Topic 2241

Duties - Duty to inform persons under investigation - General principles - [See second Civil Rights - Topic 3604 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 14].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 14].

R. v. Taylor (J.K.), [2014] 2 S.C.R. 495; 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 2014 SCC 50, affing. (2013), 561 A.R. 103; 594 W.A.C. 103; 2013 ABCA 342, dist. [para. 21].

Counsel:

Avocats:

Margaret Gallagher, Q.C., for the appellant;

Kathryn Gregory, for the respondents.

This appeal was heard on April 21, 2015, before Richard, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. Quigg, J.A., delivered the following judgment for the court on July 9, 2015 in both official languages.