Trial judge erred in failing to carry out cumulative s. 24(2) analysis with respect to Charter breaches

Supreme court | Criminal Law | Charter of Rights and Freedoms | Charter remedies [s. 24]

Accused was convicted on two counts of operating vessel causing bodily harm with blood alcohol level over legal limit. Accused was operating boat when it was involved in accident causing injury. Police arrived on scene and determined accused was impaired and was arrested after admitting she was operating boat. Accused was not immediately advised of her right to counsel as to not interfere with medical care. Police accompanied accused to hospital and once advised as to her right to counsel, she indicated her intentions to speak to family lawyer. When medical personnel took accused’s blood for medical purposes, extra blood was taken and sealed by officer and later seized pursuant to warrant. Accused sought exclusion of evidence based on violations of her ss. 8, 9 and 10(b) rights under Canadian Charter of Rights and Freedoms. Trial judge held blood samples seized were in violation of s. 8 of Charter when officer sealed two vials, and accused’s s. 9 rights were violated as she was arrested at point when police lacked reasonable grounds. However, trial judge held accused’s initial statements were voluntary and made while she was not detained and therefore her Charter rights under s. 10(b) were not violated. Trial judge excluded blood samples under s. 24(2) of Charter but admitted hospital records which contained analysis of accused’s blood alcohol content. Appeal by accused dismissed. Trial judge erred in failing to carry out cumulative s. 24(2) analysis with respect to Charter breaches identified, but did not err in result. Exclusion was not justified. Accused appealed. Appeal dismissed. Appeal should be dismissed, substantially for reasons of majority of Court of Appeal.

R. v. Culotta (2018), 2018 CarswellOnt 21141, 2018 CarswellOnt 21142, 2018 SCC 57, 2018 CSC 57, Wagner C.J.C., Abella J., Moldaver J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellOnt 12035, 2018 ONCA 665, C.W. Hourigan J.A., G. Pardu J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.).

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