R. v. Taylor (J.K.), (2011) 527 A.R. 173 (QB)

• Judge: Hall, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 14, 2011
• Citations: (2011), 527 A.R. 173 (QB);2011 ABQB 543

R. v. Taylor (J.K.) (2011), 527 A.R. 173 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. SE.094

Her Majesty The Queen v. Jamie Kenneth Taylor (080816713Q1; 2011 ABQB 543)

Indexed As: R. v. Taylor (J.K.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Hall, J.

September 14, 2011.

Summary:

The accused driver was involved in a single vehicle accident. His passenger was injured. The police officer, noting standard indicia of alcohol consumption, arrested the accused for impaired driving causing bodily harm and advised him of his Charter rights. The accused wished to exercise his right to counsel. A paramedic opined that the accused appeared uninjured, but followed the standard practice of transporting him to hospital to be medically checked out. The accused waited approximately 45 minutes in the hospital emergency room to be seen by a doctor. While being medically assessed, blood was drawn by hospital personnel for medical purposes. That decision was independently made, not as the Crown's agent. At that time, the officer made a blood sample demand and obtained a blood sample for police analysis. At no time was the accused given an opportunity to call a lawyer. The officer testified that he forgot to do so. The officer subsequently applied for, and obtained, a warrant to seize the hospital blood sample, which was also sent for police analysis. At trial, the Crown sought admission of the certificate of analysis respecting the seized hospital blood sample. The Crown, recognizing that the accused had never been advised of his right to counsel, did not seek to admit the certificate evidence respecting analysis of the blood taken pursuant to the officer's blood sample demand. The accused, alleging a denial of his right to counsel, sought exclusion of the certificate evidence under s. 24(2) of the Charter. The accused also claimed that the information to obtain the warrant to seize the hospital blood sample was insufficient.

The Alberta Court of Queen's Bench dismissed the application. The failure to afford the accused an opportunity to consult with counsel at the accident scene and while awaiting medical treatment at the hospital did not infringe the accused's s. 10(b) right to counsel. The accused's right to counsel was not violated until after the hospital blood sample was taken. It was important that there was no collusion between the hospital and the officer to obtain a blood sample for criminal investigation purposes. Finally, the court rejected the accused's submission that the information to obtain the warrant to seize the hospital blood sample was insufficient. The information provided by the officer was neither misleading nor fraudulent. The information provided, as amplified on the voir dire, was sufficient to issue the warrant.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - The accused driver was involved in a single vehicle accident - His passenger was injured - The police officer, noting standard indicia of alcohol consumption, arrested the accused for impaired driving causing bodily harm and advised him of his Charter rights - The accused wished to exercise his right to counsel - A paramedic opined that the accused appeared uninjured, but followed the standard practice of transporting him to hospital to be medically assessed - The accused waited approximately 45 minutes in the hospital emergency room to be seen by a doctor - While being medically assessed, blood was drawn by hospital personnel for medical purposes - That decision was independently made, not as the Crown's agent - At that time, the officer made a blood sample demand and obtained a blood sample for police analysis - At no time was the accused given an opportunity to call a lawyer - The officer testified that he forgot to do so - The officer subsequently applied for, and obtained, a warrant to seize the hospital blood sample, which was also sent for police analysis - At trial, the Crown sought admission of the certificate of analysis respecting the seized hospital blood sample - The Crown, recognizing that the accused had never been advised of his right to counsel, did not seek to admit the certificate evidence respecting analysis of the blood taken pursuant to the officer's blood sample demand - The accused, alleging a denial of his right to counsel, sought exclusion of the certificate evidence under s. 24(2) of the Charter - The Alberta Court of Queen's Bench dismissed the application - The failure to afford the accused an opportunity to consult with counsel at the accident scene and while awaiting medical treatment at the hospital did not infringe the accused's s. 10(b) right to counsel - The accused's right to counsel was not violated until after the hospital blood sample was taken - See paragraphs 1 to 31.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4605 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The accused driver was involved in a single vehicle accident - His passenger was injured - The police officer, noting standard indicia of alcohol consumption, arrested the accused for impaired driving causing bodily harm and advised him of his Charter rights - The accused wished to exercise his right to counsel - A paramedic opined that the accused appeared uninjured, but followed the standard practice of transporting him to hospital to be medically assessed - The accused waited approximately 45 minutes in the hospital emergency room to be seen by a doctor - While being medically assessed, blood was drawn by hospital personnel for medical purposes - That decision was independently made, not as the Crown's agent - At that time, the officer made a blood sample demand and obtained a blood sample for police analysis - At no time was the accused given an opportunity to call a lawyer - The officer testified that he forgot to do so - The officer subsequently applied for, and obtained, a warrant to seize the hospital blood sample, which was also sent for police analysis - At trial, the Crown sought admission of the certificate of analysis respecting the seized hospital blood sample - The Crown, recognizing that the accused had never been advised of his right to counsel, did not seek to admit the certificate evidence respecting analysis of the blood taken pursuant to the officer's blood sample demand - The accused claimed that the information to obtain the warrant to seize the hospital blood sample was insufficient - The Alberta Court of Queen's Bench rejected the submission - The court stated that "I am satisfied that the content of the information sworn to by [the officer] was neither misleading nor fraudulent. While certain additional information might have been of assistance, some of that information would not have been available to [the officer] at the time. Having heard the evidence of the witnesses at the voir dire herein, I conclude that the evidence provided to the issuing judge, and the evidence received at this voir dire was sufficient to issue the warrant. I find that there has been no improper conduct by [the officer] in the preparation of the ITO." - See paragraphs 33 to 55.

Cases Noticed:

R. v. Nelson (D.A.) (2010), 490 A.R. 271; 497 W.A.C. 271; 2010 CarswellAlta 2264 (C.A.), refd to. [para. 18].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 19].

R. v. Willier (S.J.) (2008), 429 A.R. 135; 421 W.A.C. 135; 2008 CarswellAlta 404 (C.A.), refd to. [para. 25].

R. v. Compagna (R.P.) (2008), 484 A.R. 384; 2008 ABQB 79, refd to. [para. 26].

R. v. Lachappelle (C.), [2003] O.T.C. 1119; 2003 CarswellOnt 5289 (Sup. Ct.), refd to. [para. 33].

R. v. Garofoli et al. (1990), 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 33].

Counsel:

Ron Simenik, for the Crown;

Patrick C. Fagan, Q.C., for the accused.

This application was heard on April 4-8, 2011, before Hall, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on September 14, 2011.