R. v. McDougall (J.), 2013 SKQB 358

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 01, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 358;(2013), 430 Sask.R. 173 (QB)

R. v. McDougall (J.) (2013), 430 Sask.R. 173 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JA.005

Her Majesty the Queen v. James McDougall

(CRIM No. 2126; 2013 SKQB 358)

Indexed As: R. v. McDougall (J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

McMurtry, J.

October 1, 2013.

Summary:

A motor vehicle driven by the accused entered a river. Two passengers drowned. The accused was charged with: two counts that he did, while driving a motor vehicle with an excessive blood alcohol level, cause an accident resulting in death; and two counts of dangerous driving causing death. The accused challenged the admission into evidence of the results of blood alcohol tests performed on the night of the incident, on the basis that the evidence was acquired in breach of the Criminal Code and the Charter.

The Saskatchewan Court of Queen's Bench dismissed the application.

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 Civil Rights - Topic 4613 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving - [See Civil Rights - Topic 4613 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4613 ].

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - A motor vehicle driven by the accused entered a river - Two passengers drowned - The accused was charged with: two counts that he did, while driving a motor vehicle with an excessive blood alcohol level, cause an accident resulting in death; and two counts of dangerous driving causing death - When dealing with the accused the police officers told him only that he was under arrest for impaired driving - The accused submitted that the police were aware he was in greater jeopardy than an impaired driving charge, but they failed to advise him of that fact - Accordingly, they failed to comply with the informational components of ss. 10(a) and (b) of the Charter - In the result, the accused was unable to make an informed decision about whether to call a lawyer, or to refuse to provide a blood sample - The Saskatchewan Court of Queen's Bench stated that "the accused knew he had been in a serious motor vehicle accident and that his two passengers were missing. ... the accused knew as much about the passengers' status as the police officers did at the time they were dealing with him and there is no evidence the accused was ever misled about his situation. I am not satisfied that either s. 10(a) or s. 10(b) of the Charter requires a peace officer to tell an accused about charges that may arise if certain events unfold. At the time he made a decision to waive his right to counsel and, subsequently, to provide a blood sample, the accused was facing a charge of impaired driving. It was a year before the police laid a different charge. Accordingly, in the circumstances, I find the accused understood the extent of his jeopardy and I find no breach of ss. 10(a) or (b)" - See paragraphs 93 to 107.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Criminal Law - Topic 1373 ].

Criminal Law - Topic 1373

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Belief by officer that offence was committed - A motor vehicle driven by the accused entered a river - RCMP Cst. Hoffman received a dispatch call at 20:36 and arrived at the scene at 20:58 - The accused failed an ASD test - Cst. Hoffman arrested him for impaired driving - The accused was taken to hospital - Cst. Hoffman asked Cst. Vicente to attend the hospital and make a blood or breath sample demand - Cst. Vicente made a decision to demand a breath or blood sample at approximately 21:40 - At 22:24, Cst. Vicente made a blood sample demand - The accused argued that Cst. Vicente's belief that the accused had been driving within three hours of the blood demand at 22:24 was not rationally sustainable - The accused asserted that Cst. Vicente, like Cst. Hoffman, had no direct information of the time of driving - He did not know when the 911 call was made, or how much before that time the accident had happened - Moreover, the officer supervising the investigation testified that he was told by Cst. Vicente, at 22:41, after the blood demand was given but before the samples were taken, that: "SOC [subject of complaint] thinks this occurred at 18:30" - The Saskatchewan Court of Queen's Bench held that notwithstanding the accused's statement to Cst. Vicente, the latter had reasonable grounds to believe that the accused had committed an offence under s. 253 of the Criminal Code within three hours of 21:40, the time Cst. Vicente formed the intention to make a blood demand - But for the accused's statement, it was reasonable for Cst. Vicente to believe the accident had occurred within two hours before the dispatch call - A serious accident occurring close to an occupied farmyard was unlikely to remain undetected for longer than two hours - The accused appeared capable of looking for help - Cst. Vicente reasonably discounted the accused's time estimates - On the evidence available to him, it was reasonable to proceed as he did - See paragraphs 40 to 62.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - A motor vehicle driven by the accused entered a river - Two passengers drowned - The accused was charged with: two counts that he did, while driving a motor vehicle with an excessive blood alcohol level, cause an accident resulting in death; and two counts of dangerous driving causing death - The accused argued that the blood sample demand was not made as soon as practicable as required by s. 254(3) of the Criminal Code - Cst. Hoffman had made an approved screening device (ASD) demand and the accused failed the ASD at 21:25 - Cst. Vicente formed the intent to make the blood demand at 21:40 - Cst. Vicente made the demand at 22:24 during a pause in the accused's medical care at the hospital - The accused asserted that the delay between the ASD failure and the blood demand was unexplained - The Saskatchewan Court of Queen's Bench stated that "Cst. Hoffman did not make a blood or breath demand of the accused because he was unsure of the accused's medical status. Once Cst. Vicente had gauged the accused's condition, he made a blood sample demand. I am satisfied the Crown has explained the time between the accused's arrest and the blood demand. The accused had been in a serious motor vehicle accident. His condition was uncertain. ... the accused was in the hospital receiving, or awaiting, medical assistance. In my view, Cst. Vicente made the decision to demand a blood sample within a reasonably prompt time, or as soon as practicable in the circumstances." - See paragraphs 63 to 67.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - A motor vehicle driven by the accused entered a river - Two passengers drowned - The accused was charged with: two counts that he did, while driving a motor vehicle with an excessive blood alcohol level, cause an accident resulting in death; and two counts of dangerous driving causing death - The accused argued that his physical condition did not render him incapable of providing a breath sample and the police took a blood sample from him because they were concerned about preserving their ability to rely on the presumption of identity under s. 258(1)(d) of the Criminal Code - The accused suggested Cst. Vicente ignored the medical staff's advice that the accused would be free to leave the hospital after a couple of hours, allowing the officer the opportunity to take a breath sample at the detachment - The Saskatchewan Court of Queen's Bench stated that "the circumstances facing Cst. Vicente made it quite unclear whether and when the accused would be released from hospital. ... That being the case, it was reasonable for him to believe that it was not practicable to make a breath demand of the accused. Furthermore I accept that it was also not practicable, nor reasonably possible, to bring the Intoxilizer to the hospital" - See paragraphs 68 to 72.

Criminal Law - Topic 1383.4

Motor vehicles - Impaired driving - Blood sample - Notice to accused of sample available for analysis - A motor vehicle driven by the accused entered a river on July 11, 2010 - Two passengers drowned - The accused was charged with: two counts that he did, while driving a motor vehicle with an excessive blood alcohol level, cause an accident resulting in death; and two counts of dangerous driving causing death - At the hospital after the accident, a doctor took two blood samples pursuant to the blood demand made by Cst. Vicente - The doctor also took a further blood sample for medical purposes - That sample was seized from the hospital by Cst. Volman on July 20, 2010, pursuant to a search warrant - The accused argued that his right to make full answer and defence was infringed because he did not receive notice under s. 258(1)(d)(i) of the Criminal Code that additional samples of blood were available for testing - The Crown admitted that notice under s. 258(1)(d)(i) was not given to the accused - However, the Crown asserted that its obligation to give notice arose only when the Crown was seeking to rely on one or more of the presumptions in s. 258(1)(d) - Here, the Crown was not intending to rely on any of the presumptions permitted by s. 258 - The Saskatchewan Court of Queen's Bench stated that "In R. v. Ross, ... the Nova Scotia Court of Appeal held that '... [t]he failure to give notice of the existence of the second sample, merely prevented the Crown from relying on the presumption ...'. As in Ross, the Crown remains free to present viva voce evidence concerning the blood alcohol content of the accused at the time of the accident" - See paragraphs 90 to 92.

Criminal Law - Topic 1383.5

Offences against person and reputation - Motor vehicles - Impaired driving - Blood sample - Evidence and proof - The accused was charged with: two counts that he did, while driving a motor vehicle with an excessive blood alcohol level, cause an accident resulting in death; and two counts of dangerous driving causing death - A blood sample demand had been made on the accused at the hospital after the accident - The accused argued that the blood taken and stored by the hospital was not stored in an "approved container" as defined in s. 254(1) of the Criminal Code and was, therefore, inadmissible as evidence at trial - The Saskatchewan Court of Queen's Bench stated that "The Crown is planning to call evidence with respect to the blood alcohol content of the blood samples, and does not intend to rely on any of the presumptions in the Criminal Code. Accordingly, I agree with the Crown that the containers used are not required to meet the provisions of s. 254(1) of the Criminal Code before they are admissible at trial" - See paragraphs 73 to 80.

Criminal Law - Topic 1383.5

Offences against person and reputation - Motor vehicles - Impaired driving - Blood sample - Evidence and proof - A motor vehicle driven by the accused entered a river on July 11, 2010 - Two passengers drowned - At the hospital after the accident, a doctor took two blood samples pursuant to the blood demand made by Cst. Vicente - The doctor also took a further blood sample for medical purposes - Cst. Volman seized that sample from the hospital on July 20, 2010, pursuant to a search warrant - The accused asserted that the hospital staff had no real medical reason to take blood from the accused and only did so to assist the police - He also argued that hospital staff held on to the blood samples longer than hospital procedure dictated after an improper request to do so by the RCMP - The accused submitted that the Health Information Protection Act did not permit hospital staff to advise the RCMP that blood had been taken by hospital staff from the accused, or that it would be kept by the hospital until a search warrant could be executed - The defence also argued that the information received from the hospital made its way into the Information to Obtain a Search Warrant with which the police obtained the warrant to seize the blood samples from the hospital - However, the police did not advise the justice authorizing the warrant that the hospital still had the blood samples because it ignored its usual destruction policy at the request of the RCMP - The Saskatchewan Court of Queen's Bench rejected the accused's arguments - The court was satisfied that hospital staff took blood from the accused both for medical purposes and to assist with Cst. Vicente's demand for a blood sample - The accused received health services as a result of an incident that became the subject of an investigation under the Criminal Code - The release of information by hospital staff to Cst. Volman regarding the blood samples was covered by the Health Information Protection Regulations, Reg. 1, s. 5.1(1)(c) - Consequently, no improper information was provided by the hospital to Cst. Volman - Nor did the court find that Cst. Volman provided incomplete or inappropriate information to the justice who authorized the warrant - The court failed to see how the omission from the Information to Obtain that blood samples were normally destroyed in three days would have influenced the justice not to grant the warrant - The hospital was entitled to maintain the blood samples requested by Cst. Volman until a warrant was authorized - The Act did not prohibit the hospital's actions - See paragraphs 81 to 89.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A motor vehicle driven by the accused entered a river - Two passengers drowned - The accused was charged with: two counts that he did, while driving a motor vehicle with an excessive blood alcohol level, cause an accident resulting in death; and two counts of dangerous driving causing death - The accused argued that Cst. Hoffman did not make the approved screening device (ASD) demand "forthwith" after forming his belief that the accused had been drinking as required by s. 254(2) of the Criminal Code - The Saskatchewan Court of Queen's Bench found that the ASD demand was made forthwith - Cst. Hoffman first saw the accused at approximately 21:10 - He spoke to the accused in the ambulance for perhaps seven minutes before making the ASD demand at 21:17 - During that time, the accused was being treated by an EMS worker - The accused did not testify with respect to whether, or when, he felt a legal obligation to comply with the requests for information made by Cst. Hoffman - The accused was not going anywhere because of his medical condition, and there was no evidence the ambulance was delayed to allow Cst. Hoffman to deal with the accused - Accordingly, until Cst. Hoffman made the ASD demand, the accused was not detained by him - Even if it could be said the detention began when Cst. Hoffman entered the ambulance, the court would not find a failure to make the demand forthwith - It was reasonable for Cst. Hoffman to take seven minutes to obtain information about the accident before making the ASD demand - See paragraphs 19 to 28.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A motor vehicle driven by the accused entered a river - A call was dispatched to RCMP Cst. Hoffman at 20:36 and he arrived at the accident scene at 20:58 - The Deputy Fire Chief advised him that two passengers from the vehicle were missing and the suspected driver (the accused) was being attended to by EMS in a farmyard up the road - Cst. Hoffman found the accused in an ambulance - At 21:17, Hoffman demanded that the accused provide a breath sample into an Approved Screening Device (ASD) - The accused submitted that Cst. Hoffman had no way of knowing the time of the accident and he therefore did not have "reasonable grounds to suspect" that the accused had "operated a motor vehicle" "within the preceding three hours" as required by s. 254(2) of the Criminal Code - The Saskatchewan Court of Queen's Bench found that it was reasonable for Cst. Hoffman to suspect that the accused had driven in the three hours previous to making the ASD demand - The accused had stated that he had been drinking, some distance from the accident scene, only two hours earlier - The site of the accident was within 1/4 to 1/2 mile from an occupied farmhouse - The devastating circumstances of the accident made it much more likely than not the accused sought help as quickly as possible - See paragraphs 29 to 38.

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - [See second Criminal Law - Topic 1383.5 ].

Trade Regulation - Topic 9445

Protection of personal information and electronic documents - Protection, collection or disclosure of personal information - Health information - [See second Criminal Law - Topic 1383.5 ].

Cases Noticed:

R. v. MacMillan (T.) (2013), 302 O.A.C. 161; 114 O.R.(3d) 506; 2013 ONCA 109, refd to. [para. 20].

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. 22].

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. 24].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 35].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 35].

R. v. Khald, 2010 ONCJ 323, refd to. [para. 38].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 50].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 259 C.C.C.(3d) 127; 2010 ONCA 554, refd to. [para. 62].

R. v. Yates (B.M.) (2012), 402 Sask.R. 135; 2012 SKPC 104, refd to. [para. 64].

R. v. Squires (D.) (2002), 159 O.A.C. 249; 59 O.R.(3d) 765; 166 C.C.C.(3d) 65 (C.A.), consd. [para. 64].

R. v. St. Pierre (G.R.), [1995] 1 S.C.R. 791; 178 N.R. 241; 79 O.A.C. 321; 96 C.C.C.(3d) 385, refd to. [para. 78].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 103 D.L.R.(4th) 678, refd to. [para. 78].

R. v. St-Onge Lamoureux (A.), [2012] 3 S.C.R. 187; 436 N.R. 199; 2012 SCC 57, refd to. [para. 79].

R. v. Decap (J.C.) (2003), 237 Sask.R. 135; 2003 SKQB 301, consd. [para. 88].

R. v. Ross (D.E.) (1996), 152 N.S.R.(2d) 62; 442 A.P.R. 62; 108 C.C.C.(3d) 168 (C.A.), refd to. [para. 92].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1, refd to. [para. 97].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233; 63 C.C.C.(3d) 313, consd. [para. 98].

R. v. Taylor (L.) (2008), 339 Sask.R. 141; 2008 SKQB 436, consd. [para. 99].

R. v. Benson (K.) (1996), 145 Nfld. & P.E.I.R. 91; 453 A.P.R. 91 (Nfld. T.D.), consd. [para. 100].

R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289, refd to. [para. 104].

R. v. Montgomery (M.S.), [1996] B.C.T.C. Uned. 72 (S.C.), refd to. [para. 105].

R. v. McConnell (J.A.), [2008] B.C.T.C. Uned. B71; 2008 BCSC 505, refd to. [para. 105].

R. v. McTaggart (G.W.) (2003), 244 Sask.R. 166; 2003 SKQB 525, refd to. [para. 105].

R. v. Frawley (1991), 116 N.B.R.(2d) 385; 293 A.P.R. 385 (T.D.), refd to. [para. 105].

R. v. Dorn (C.R.) (1999), 183 Sask.R. 314; 1999 SKQB 65, refd to. [para. 105].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(1) [para. 75]; sect. 254(2)(b) [para. 17]; sect. 254(3) [para. 49].

Health Information Protection Act, S.S. 1999, c. H-0.021, sect. 26(1) [para. 82]; sect. 27(4) [para. 86].

Health Information Protection Act Regulations (Sask.), Health Information Protection Regulations, R.R.S., c. H-0.021, Reg. 1, sect. 5.1(1)(c) [para. 86].

Health Information Protection Regulations - see Health Information Protection Act Regulations (Sask.).

Counsel:

Andrew J. Wyatt, for the Crown;

Shane B. Wagner, for the accused.

This application was heard before McMurtry, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following decision on October 1, 2013.