R. v. Colarusso, (1994) 162 N.R. 321 (SCC)

• Judge: McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 26, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 162 N.R. 321 (SCC);[1994] 1 SCR 20;1994 CanLII 134 (SCC);26 CR (4th) 289;49 MVR (2d) 161;162 NR 321;JE 94-240;87 CCC (3d) 193;110 DLR (4th) 297;19 CRR (2d) 193;69 OAC 81;22 WCB (2d) 154;[1994] SCJ No 2 (QL)

R. v. Colarusso (1994), 162 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Nicola Colarusso (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada, The Attorney General of Quebec and The Attorney General for New Brunswick (intervenors)

(22433)

Indexed As: R. v. Colarusso

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,

McLachlin, Iacobucci and Major, JJ.

January 26, 1994.

Summary:

The accused was convicted of impaired driving causing bodily harm, impaired driv­ing, leaving the scene of an accident, crimi­nal negligence causing death and impaired driving causing death. The accused con­sented to blood and urine samples for medi­cal purposes. The coroner arrived at the hospital and seized the samples under s. 16(2)(c) of the Coroners Act. The samples were analyzed and evidenced a blood-alco­hol content in excess of the legal limit. Police obtained the analyst's results and the analyst testified at trial for the Crown. The accused appealed, claiming his right to be secure against unreasonable search and seizure was denied (Charter, s. 8) and that the analyst's evidence should have been excluded under s. 24(2) of the Charter.

The Ontario Court of Appeal, in a judg­ment reported 44 O.A.C. 241, dismissed the appeal. The court stated that even if s. 16(2)(c) of the Coroners Act was unconsti­tutional and s. 8 of the Charter was violated, the evidence would not be excluded under s. 24(2) of the Charter. The accused appealed.

The Supreme Court of Canada dismissed the appeal. The court stated that whether or not s. 16(2)(c) was intra vires, the manner in which police obtained the results, without warrant, violated s. 8 of the Charter. How­ever, the court agreed that the evidence should not be excluded under s. 24(2) of the Charter, because its admission would not bring the administration of justice into disre­pute.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - Unreasonable search and seizure - What constitutes - The accused driver was arrested for impaired driving after a fatal accident and transported to hospital for treatment - Blood and urine samples were taken for medical purposes, with the accused's consent - The coroner, investigating the accident, seized the samples under s. 16(2)(c) of the Coroners Act - Analysis showed the accused's blood-alcohol content exceeded the legal limit - Police appropriated the results and the analyst testified at trial - The Supreme Court of Canada stated that, assuming s. 16(2)(c) was constitutionally valid and the samples seized by the coroner did not violate s. 8 of the Charter, the subsequent police obtention and use of the results, without obtaining a warrant, violated s. 8 of the Charter - Intervention by the cor­oner did not displace the requirement that police obtain prior judicial authorization before appropriating the results of the analysis - See paragraphs 18 to 43.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - Unreasonable search and seizure - What constitutes - The Supreme Court of Canada stated that the purpose of s. 8 of the Charter was "to secure the citizen's right to a reasonable expectation of privacy against governmental encroach­ments. The need for privacy can vary with the nature of the matter sought to be pro­tected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion. ... Absent exi­gent circumstances, there is a requirement of prior authorization by a judicial officer as a precondition to a valid seizure for the criminal law purposes ... And the mini­mum requirement for such authorization is that the judicial officer be satisfied that there are reasonable and probable grounds that an offence has been committed and that the search will afford evidence of that offence." - See paragraph 19.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - Unreasonable search and seizure - What constitutes - The Supreme Court of Canada stated that "in dealing with a situation in which a bodily sample is seized by a party other than the police, but ultimately winds up being used against the individual by the criminal law enforce­ment arm of the state, it is essential that the court go beyond the initial non-police seizure and determine whether the actions of the police (or other agent of the crimi­nal law enforcement arm of the state) constitute a seizure by the state in and of themselves or make the initially valid seizure by the coroner unreasonable. That being so, the actions of the agents of the criminal law enforcement arm of the state will be subject to scrutiny under s. 8 of the Charter even if, absent the intervention of the police, the initial non-police seizure would not run afoul of the Charter." - See paragraph 24.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that the factors to be con­sidered in determining whether evidence should be excluded under s. 24(2) of the Charter were the effect of admission of the evidence on the fairness of the trial pro­cess, the seriousness of the Charter viol­ation and the effect of exclusion on the reputation of the administration of justice - See paragraph 60.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was convicted of impaired driving offences - Police appropriated the results of analysis of blood and urine samples that had been seized by the coroner - The analyst tes­tified at trial - Police obtained the infor­mation without warrant in violation of s. 8 of the Charter - The Supreme Court of Canada affirmed that the analyst's evidence was not to be excluded under s. 24(2), because its admission would not bring the administration of justice into disrepute - The samples were "real" evidence which existed independently of the Charter breach - The coroner and police acted in good faith, believing they were authorized to do what they did - Any violation of s. 8 was inadvertent - The evidence would have been discovered absent the Charter violation, so the violation had a minimal effect on the outcome of the trial - See paragraphs 61 to 70.

Constitutional Law - Topic 6444

Federal jurisdiction (s. 91) - Criminal law - Matters not criminal - The Supreme Court of Canada stated that "the establish­ment of the office of coroner and legisla­tion governing the conduct of inquests is within the legislative authority of the provinces ... provincial legislation govern­ing the conduct of inquests does not gen­erally constitute an improper intrusion into the criminal law sphere reserved to Parlia­ment" - See paragraph 51.

Coroners - Topic 1025

Powers - Investigatory - Seizure of evi­dence - The Supreme Court of Canada stated that "(1) while the evidence is being used by the coroner for valid non-criminal purposes within the scope of the Coroners Act, the seizure is reasonable and not caught by s. 8 of the Charter; and (2) when the evidence, or the information derived from the evidence, is appropriated by the criminal law enforcement arm of the state for use against the person from whom it was seized, the seizure will become unreasonable and will run afoul of s. 8 of the Charter. In other words, the criminal law enforcement arm of the state cannot rely on the seizure by the coroner to circumvent the guarantees of Hunter, supra, as any seizure by the coroner pur­suant to s. 16(2) is valid for non-criminal purposes only." - See paragraph 41.

Coroners - Topic 1025

Powers - Investigatory - Seizure of evi­dence - Section 16(5) of the Coroners Act provided that "where a coroner seizes anything under clause (2)(c), he shall place it in the custody of a police officer for safekeeping and shall return it to the per­son from whom it was seized as soon as is practicable after the conclusion of the investigation ..." - The Supreme Court of Canada stated that s. 16(5) required com­plicity between the coroner and police - The court stated that "the application of s. 16(5) of the Coroners Act must be restricted to situations in which it can clearly be determined that the police officers are acting merely as the agents of the coroner. While this may restrict its scope, any other interpretation would imperil it constitutional validity." - See paragraphs 53 to 54.

Coroners - Topic 1025

Powers - Investigatory - Seizure of evi­dence - [See first Civil Rights - Topic 1217 ].

Coroners - Topic 1026

Powers - Investigatory - Delegation of - Section 16(4) of the Coroners Act empowered the coroner to authorize a police officer or a medical practitioner to exercise all the investigative powers granted to the coroner under s. 16(2) - The Supreme Court of Canada questioned the constitutional validity of s. 16(4) - "When a coroner delegates s. 16(2) inves­tigative powers to a police officer, the danger that the distinction between the coroner's investigation and the criminal investigation will be obliterated and the two investigations amalgamated into one is immediately obvious. ... the dependency of the coroner on the police during the inves­tigative stage mandated under s. 16(4) and s. 16(5) of the Coroners Act brings these provisions dangerously close to the bound­ary of legislation in the sphere of criminal law, an area within the exclusive jurisdic­tion of Parliament." - See paragraphs 57 to 58.

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 19].

R. v. Pohoretsky, [1987] 1 S.C.R. 945; 75 N.R. 1; 47 Man.R.(2d) 295; 33 C.C.C.(3d) 398, refd to. [para. 19].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 10 M.V.R.(2d) 1; 66 C.R.(3d) 348; 55 D.L.R.(4th) 503, refd to. [para. 19].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, refd to. [para. 44].

Faber v. Sa Majesté la Reine et le Procureur général et Ministre de la Justice de la Province du Québec et autres, [1976] 2 S.C.R. 9; 6 N.R. 1 (Fr.); 8 N.R. 29 (Eng.), refd to. [para. 51].

Starr et al. v. Houlden, [1990] 1 S.C.R. 1366; 110 N.R. 81; 41 O.A.C. 161; 55 C.C.C.(3d) 472, refd to. [para. 51].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 60].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 61].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1, refd to. [para. 61].

R. v. Dersch (W.W.), [1993] 3 S.C.R. 768; 158 N.R. 375; 33 B.C.A.C. 269; 54 W.A.C. 269, refd to. [para. 61].

R. v. Erickson (1992), 125 A.R. 68; 14 W.A.C. 68; 72 C.C.C.(3d) 75 (C.A.), affd. [1993] 2 S.C.R. 649; 154 N.R. 238; 141 A.R. 276; 46 W.A.C. 276, refd to. [para. 63].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 65].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 86]; sect. 8 [para. 1]; sect. 24 [para. 86]; sect. 24(2) [para. 59].

Constitution Act, 1867, sect. 91(27) [para. 86].

Coroners Act, R.S.O. 1980, c. 93, sect. 16(2)(c), sect. 16(5) [para. 87]; sect. 16 [para. 47]; sect. 16(2) [para. 12]; sect. 16(4), sect. 16(5) [para. 52]; sect. 24(2) [para. 62]; sect. 27 [para. 98].

Criminal Law Amendment Act, S.C. 1985, c. 19, sect. 254(3) [para. 68].

Authors and Works Noticed:

Fairburn, Michal, Case Comment: R. v. Colarusso (1992), 4 J.M.V.L. 34, p. 34 [para. 43].

Granger, Christopher, Canadian Coroner Law (1984), generally [para. 50].

Marshall, T. David, Canadian Law of Inquests (2nd Ed. 1991), generally [para. 50].

Counsel:

Clayton C. Ruby and Julian N. Falconer, for the appellant;

Ken Campbell and Renee Pomerance, for the respondent;

Michael R. Dambrot, Q.C., and Chantal Proulx, for the Attorney General of Canada;

Monique Rousseau and Gilles Laporte, for the Attorney General of Quebec;

Gabriel Bourgeois, for the Attorney Gen­eral for New Brunswick.

Solicitors of Record:

Ruby & Edwardh, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Attorney General of Quebec, Sainte-Foy, Quebec, for the Attorney General of Quebec;

Attorney General for New Brunswick, Fredericton, N.B., for the Attorney Gen­eral for New Brunswick.

This appeal was heard on March 30, 1993, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On January 26, 1994, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

La Forest, J. (L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci, JJ., concur­ring) - see paragraphs 1 to 71;

Lamer, C.J.C., Cory, McLachlin and Major, JJ. - see paragraphs 72 to 122.