Even if accused did not consent to drawing of blood, s. 8 of Charter not engaged as hospital staff were not acting as agents of police

Ontario criminal | Motor Vehicles | Constitutional issues | Effect of Charter of Rights and Freedoms

Accused was arrested for impaired driving following head-on collision. At hospital, five or six vials of accused’s blood were taken in accordance with order from doctor and hospital procedure for trauma victims. Police officer denied asking for accused’s blood to be drawn, but admitted he might have advised hospital staff he might be back for blood samples later, although staff indicated they had not spoken with officer at any time that night. After doing required testing, lab technician places vials of accused’s blood in rack designated for police in case it was needed for further testing later. Police later seized accused’s blood and medical records pursuant to warrant. Accused brought application to exclude evidence based on breaches of his rights under s. 8 of Charter of Rights and Freedoms. There was no breach of accused’s s. 8 Charter rights. On night of incident, hospital staff worked independently of police and only in accordance with doctor’s orders. Hospital staff acted on their own accord to segregate accused’s blood in fridge based on their extensive experience and police presence outside accused’s room. There was no evidence hospital staff drew more blood than was necessary for their medical purposes. Hospital staff acted in accordance with hospital policy concerning interaction with police and blood alcohol testing. Even if accused did not consent to drawing of his blood, s. 8 was not engaged as hospital staff were not acting as agents of police. There was no evidence accused objected to collection of blood.

R. v. Canavan (2018), 2018 CarswellOnt 21759, 2018 ONSC 4171, Tzimas J. (Ont. S.C.J.).

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