Samples from suspected impaired boater scrutinized

The legality of taking extra blood samples from a suspected impaired boater by an emergency room technician for “police use” is headed to the Supreme Court of Canada as a result of a strongly worded dissent at the Ontario Court of Appeal.

Samples from suspected impaired boater scrutinized
Dirk Derstine says case law supports a dissenting judgment in a recent Ontario Court of Appeal ruling. Photo: Robin Kuniski

The legality of taking extra blood samples from a suspected impaired boater by an emergency room technician for “police use” is headed to the Supreme Court of Canada as a result of a strongly worded dissent at the Ontario Court of Appeal.

The court ruled 2-1 to uphold the conviction of Christie Ann Culotta for the impaired operation of a vessel causing seriously bodily harm, stemming from an August 2013 incident on Lake Muskoka.

The majority judgment, written by Justice Ian Nordheimer with Justice William Hourigan concurring, described the Charter breaches as “technical,” not in bad faith and also that there was “vindication” for the police conduct in the blood alcohol results. In dissent, Justice Gladys Pardu described the violations as serious and grounds to quash the conviction and order a new trial.

“The affront to human dignity embodied in a police officer’s ‘co-opting a lab technician’ into taking blood samples for police purposes when the technician was taking blood samples to carry out a physician’s orders is so serious that in my view, the hospital records of the analysis of the appellant’s blood should be excluded,” wrote Pardu in the ruling issued July 25.

“There are statutory regimes prescribed for the taking of breath or blood samples where impaired driving offences are suspected. These regimes must be well known to police. For police to sidestep these procedures by inserting themselves into an accused person’s medical care is a grave misstep,” she wrote. The dissent means that there is an appeal “as of right” to the Supreme Court.

Dirk Derstine, who acted for Culotta, says he believes the case law supports the dissenting judgment. “Generally, you have more protection the more intrusive the search. Here, the state was metaphorically sucking the blood out [of my client] unconstitutionally. Police can’t seize blood first and get permission later,” says Derstine, co-founder of Derstine Penman in Toronto.

Scott Cowan, a Goderich, Ont.-based defence lawyer who regularly acts for clients in the Muskoka region, says courts need to scrutinize how police interact with suspects when they are in a vulnerable state, such as being treated in the emergency room section of a hospital.

As well, he says the case highlights a recurring issue in smaller communities where police are able to convince other public sector workers, such as hospital employees, to bend the rules.

“It is a problem. They are too buddy-buddy,” says Cowan, who also describes the extra blood taking as a serious Charter breach.

“We are talking about a warrantless seizing of a person’s blood. This is a constitutional democracy, not a Bram Stoker novel,” he states.

Culotta was operating a boat with four friends as passengers when it collided into a small rocky island at around 2 a.m. The five women were returning from a social gathering to Culotta’s family’s cottage on the lake. Two of the passengers were seriously injured. All five received medical treatment that night.

The OPP officer on the scene initially arrested Culotta while speaking to her in the ambulance, but he did not inform her of her right to silence or right to counsel, because, he says, he did not want to interfere with ongoing treatment by the paramedics.

In hospital, the officer provided a caution and asked Culotta if she wanted to contact a lawyer.

She indicated her parents would be there soon and they had the name of a lawyer who acted for the family. The officer’s notes of this interaction said that he was “not sure if [she] fully understands her situation,” the court heard.

A couple of hours after she was admitted to the emergency section of the hospital in Bracebridge, Ont., a technician took samples of blood for tests, including those for blood alcohol, for medical reasons.

Two extra vials were taken at the request of the officer, sealed and placed on a shelf in the laboratory refrigerator that was marked “for police use.”

A few hours after the incident, Culotta was told she could leave “unconditionally” but that police were continuing to investigate. She was also asked to provide a statement, which she did.

A few weeks later, police obtained a warrant for the records of the blood taken for medical reasons.

The trial judge excluded the blood samples provided to police as evidence, finding that the lab technician was “co-opted” by the investigating officer. The hospital records, which included blood alcohol information, were admitted.

Derstine agrees that the hospital records, obtained by a warrant, did not involve state conduct.

“But when the Charter breach [by police] is sufficiently serious, the surrounding causation does not have to be as strong,” he suggests.

The seriousness of the Charter violations by police and whether it should impact the admission of the hospital records is where Nordheimer and Hourigan disagreed with Pardu.

The majority found that there was not a breach of the right to counsel by police and also that when the trial judge referred to co-opting the hospital employee, it was for the purpose of “sealing” the extra blood and not the taking of the additional samples.

As well, the inexperience of the officer was a factor to be considered in the 24(2) Charter analysis, the majority stated. “The Charter violations that occurred were almost entirely the result of the fact that Officer Tunney was a fourth-class rookie constable conducting his first investigation of an ‘over 80’ operation of a boat causing bodily harm case,” wrote Nordheimer.

“Good faith honest errors by the police represent less serious Charter infringements,” he stated.

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