R. v. Taylor (J.K.), (2013) 561 A.R. 103

• Judge: Berger, O'Brien and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 10, 2013
• Citations: (2013), 561 A.R. 103;2013 ABCA 342

R. v. Taylor (J.K.) (2013), 561 A.R. 103; 594 W.A.C. 103 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.047

Her Majesty the Queen (respondent) v. Jamie Kenneth Taylor (appellant)

(1201-0160-A; 2013 ABCA 342)

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

Alberta Court of Appeal

Berger, O'Brien and Slatter, JJ.A.

October 10, 2013.

Summary:

The accused driver was involved in a single vehicle accident. His three passengers were 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, in a judgment reported (2011), 527 A.R. 173, 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. The accused, subsequently convicted of three counts of impaired driving causing bodily harm, appealed the failure to exclude the blood sample evidence on the ground that his Charter rights were violated.

The Alberta Court of Appeal, Slatter, J.A., dissenting, allowed the appeal, set aside the convictions and substituted acquittals.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - The accused driver was involved in a single vehicle accident - His passengers were 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 - One minute later the officer made a blood sample demand and obtained a blood sample for police analysis - At no time was the accused afforded an opportunity to call a lawyer - The Alberta Court of Appeal stated that the officer did not request that blood be drawn, but deliberately delayed the blood demand until the hospital blood was drawn - The officer was content to allow medical personnel to collect evidence on behalf of the police - The court held that the police conduct in obtaining a sample of the hospital blood for analysis constituted an unreasonable search and seizure (Charter, s. 8) - The hospital personnel, by permitting the officer to be a bedside attendant every step of the way in the process, failed their "duty to respect a person's privacy" - See paragraphs 21 to 38.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Civil Rights - Topic 4605 ].

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4605 ].

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 passengers were 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 trial judge 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 his s. 10(b) right to counsel - The accused's right to counsel was not violated until after the hospital blood sample was taken - The Alberta Court of Appeal allowed the appeal, excluded the evidence under s. 24(2) and substituted an acquittal - The accused's right to counsel was violated where he was not afforded an opportunity at the accident scene or at the hospital, before blood samples were taken, to use the officer's cell phone to call his lawyer - It was not "impractical" to permit the accused to call his lawyer at the accident scene or while waiting at the hospital to be seen by a doctor - The officer testified that he forgot the accused's right to call a lawyer, not that doing so would be impractical - See paragraphs 1 to 19, 45 to 48.

Civil Rights - Topic 4610

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [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 trial judge rejected the submission, stating 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." - The Alberta Court of Appeal disagreed - The issuing justice was not fully apprised of the facts, including that the accused's Charter right to counsel was infringed - Absent Charter compliance the warrant would not have been issued - Further, the ITO contained further deficiencies as information that should have been disclosed to the issuing justice was not disclosed - See paragraphs 21 to 34.

Cases Noticed:

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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. 6].

R. v. George (N.) (2004), 189 O.A.C. 161; 187 C.C.C.(3d) 289 (C.A.), refd to. [para. 14].

R. v. Edwards, 2009 NLTD 167, refd to. [para. 14].

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. 20].

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. 22].

R. v. Pohoretsky, [1987] 1 S.C.R. 945; 75 N.R. 1; 47 Man.R.(2d) 295, refd to. [para. 23].

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, refd to. [para. 24].

R. v. Cole (R.) et al., [2012] 3 S.C.R. 34; 436 N.R. 102; 297 O.A.C. 1, refd to. [para. 43].

R. v. Erickson (1992), 125 A.R. 68; 14 W.A.C. 68; 72 C.C.C.(3d) 75 (C.A.), refd to. [para. 44].

R. v. Dunkle (T.D.), [2010] A.R. Uned. 329; 2010 ABPC 137, refd to. [para. 45].

R. v. Dupras (R.P.) (2010), 494 A.R. 314; 2010 ABPC 138, refd to. [para. 45].

R. v. Buker (B.L.), [2010] A.R. Uned. 491; 2010 ABPC 203, refd to. [para. 45].

R. v. Au-Yeung (S.), [2010] O.T.C. Uned. 2292; 2010 ONSC 2292, refd to. [para. 45].

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R. v. Morelli - see R. v. U.P.M.

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R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 75].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 75].

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R. v. Wittwer - see R. v. D.H.W.

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R. v. Adams (P.F.) et al. (2011), 303 N.S.R.(2d) 356; 957 A.P.R. 356; 274 C.C.C.(3d) 502; 2011 NSCA 54, refd to. [para. 119].

R. v. Murphy - see R. v. Adams (P.F.) et al.

R. v. Jeffrey (1993), 141 A.R. 299; 84 C.C.C.(3d) 31; 12 Alta. L.R.(3d) 153 (C.A.), refd to. [para. 119].

Authors and Works Noticed:

Pomerance, Renee M., The Demise of the Telewarrant System in Ontario: Blood Sample Seizure Alternatives (1990), 2 J.M.V.L. 323, p. 344 [para. 42].

Counsel:

K. Kondro, for the respondent;

P.C. Fagan, Q.C., for the appellant.

This appeal was heard on May 10, 2013, before Berger, O'Brien and Slatter, JJ.A., of the Alberta Court of Appeal.

The judgment of the Court of Appeal was delivered on October 10, 2013, when the following memorandums of judgment were filed:

Berger and O'Brien, JJ.A. - see paragraphs 1 to 49;

Slatter, J.A., dissenting - see paragraphs 50 to 122.