Police intentionally obtained information in breach of medical confidentiality to obtain warrant

Ontario criminal | Criminal Law | Charter of rights and freedoms | Charter remedies [s. 24]

Accused was involved in motor vehicle accident, in which other driver was killed, and accused was taken to hospital. Accused had phobia about needles and refused to allow paramedics and hospital staff to take blood and to have needle inserted into her. Four nurses took blood from accused, despite her objections, and officer was informed about her blood alcohol level and police officer had asked nurse about accused’s urine ethanol results. Accused brought successful application to exclude evidence because her rights under Canadian Charter of Rights and Freedoms were violated. Trial judge found that evidence of alcohol readings obtained from blood samples were illegally obtained and were inadmissible because this intrusion on accused’s body violated ss. 7 and 8 of Charter. Justice of peace who issued search warrant was not provided with evidence that could justify seizing blood samples and urine readings at hospital. There was no evidence given to justice about indicia of impairment, accordingly warrant had been based on nothing. Crown appealed. Appeal dismissed. Trial judge did not explain, and there was no real evidence, to support his conclusion that nurses were acting as state agents, accordingly, new s. 24(2) Charter analysis had to be conducted. It was found that Charter-infringing state conduct here was at serious end of fault spectrum, as police intentionally obtained information from hospital staff in breach of medical confidentiality and then relied on that information to obtain warrant that would otherwise not have been issued. Given that Charter-infringing state conduct here was at serious end of fault spectrum and breach significantly impacted on accused’s informational privacy interests, balance tipped towards exclusion and was not outweighed by society’s interests.

R. v. Campbell (2019), 2019 CarswellOnt 4880, 2019 ONCA 258, David Watt J.A., K. van Rensburg J.A., and David Brown J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 8584, 2017 ONSC 3293, B.A. Glass J. (Ont. S.C.J.).

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