R. v. Dyment (1988), 89 N.R. 249 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty the Queen v. Brandon Roy Dyment
(No. 19786)
Indexed As: R. v. Dyment
Supreme Court of Canada
Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.
December 8, 1988.
Summary:
The accused was transported to hospital by a police officer after being injured when the motor vehicle he was driving left the highway. Neither the police officer nor the attending doctor believed the accused had been drinking. The doctor, on his own initiative, took a sample of the accused’s blood for medical purposes and, without his consent, handed it over to the police officer. The sample was analyzed and the accused was charged with driving a motor vehicle while having an excessive blood alcohol content contrary to s. 236 of the Criminal Code.
The Prince Edward Island Provincial Court held that the taking of the sample did not violate the accused’s rights under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. The court refused to exclude the certificate of analysis under s. 24 of the Charter, convicted the accused and fined him $250.00. The accused appealed.
The Prince Edward Island Supreme Court, in a judgment reported 47 Nfld. & P.E.I.R. 350; 139 A.P.R. 350, allowed the appeal, excluded the certificate and acquitted the accused, where no other evidence was available to support the charge, because the taking of the sample violated the accused’s rights under ss. 7 and 8 of the Charter. The Crown appealed.
The Prince Edward Island Court of Appeal, in a judgment reported 57 Nfld. & P.E.I.R. 210; 170 A.P.R. 210, dismissed the appeal. The Crown appealed.
The Supreme Court of Canada, McIntyre, J., dissenting, dismissed the appeal. The court held that the taking of the blood sample for medical purposes and turning it over to police to be used against the accused constituted an unreasonable seizure under s. 8 of the Charter. The court affirmed that the evidence was to be excluded to avoid bringing the administration of justice into disrepute.
Le Dain, J., did not participate in the judgment.
Civil Rights – Topic 1213
Security of the person – Lawful or reasonable search – For reasonable and probable cause – The accused was hospitalized when injured in a single car accident – Neither the attending police officer nor the doctor believed that the accused had been drinking – The doctor, on his own initiative and without the accused’s consent, took a blood sample for medical purposes and gave it to the officer – The officer had no warrant, did not request the sample and lacked reasonable and probable grounds to believe an offence had been committed – The Prince Edward Island Court of Appeal held that the accused’s rights under s. 7 of the Charter of Rights and Freedoms were not infringed – The Supreme Court of Canada held that the accused’s right to be secure against an unreasonable search and seizure under s. 8 of the Charter was denied; the court did not deal with the s. 7 issue.
Civil Rights – Topic 1217
Security of the person – Lawful or reasonable search – Unreasonable search and seizure – What constitutes – The accused was hospitalized when injured in a single car accident – Neither the attending police officer nor the doctor believed that the accused had been drinking – The doctor, on his own initiative and without the accused’s consent, took a blood sample from a free flowing wound and gave it to the officer, even though the sample was taken for medical purposes – The Supreme Court of Canada affirmed that the taking of the sample and giving it to the police constituted an unreasonable seizure contrary to s. 8 of the Charter of Rights and Freedoms – Lamer, J. (Beetz and Wilson, JJ., concurring), held that the seizure was unlawful in that it was made without warrant, was unsupported by evidence establishing its lawfulness and was not justified by urgency or other reason – La Forest, J. (Dickson, C.J.C., concurring), inquired further to find the seizure unreasonable – The court held that the evidence obtained was to be excluded under s. 24(2) of the Charter to avoid bringing the administration of justice into disrepute.
Civil Rights – Topic 1220
Security of the person – Lawful or reasonable search – Seizure defined – A doctor, on his own initiative and without the accused’s consent, took a blood sample from a free flowing wound and gave it to a police officer, even though the sample was taken for medical purposes – The police officer had not requested the sample, yet kept it and had it analyzed – The Supreme Court of Canada affirmed that the taking of the sample and giving it to the police without the accused’s consent constituted a seizure within the meaning of s. 8 of the Charter of Rights and Freedoms.
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – [See Civil Rights – Topic 1217 above].
Civil Rights – Topic 8550
Canadian Charter of Rights and Freedoms – Interpretation – Bring the administration of justice into disrepute – [See Civil Rights – Topic 1217 above].
Cases Noticed:
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 33 Alta. L.R.(2d) 193; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; 2 C.P.R.(3d) 1; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 84 D.T.C. 6467, refd to. [para. 2].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; 33 C.C.C. (3d) 1; [1987] 3 W.W.R. 699, refd to. [para. 2].
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481; 13 C.R.R. 64, refd to. [para. 18].
Semayne’s Case (1604), 5 Co. Rep. 91 a; 77 E.R. 194, refd to. [para. 19].
Entick v. Carrington (1765), 19 St. Tr. 1029; 2 Wils. K.B. 275; 95 E.R. 807, refd to. [para. 19].
Kruger Inc. v. Minister of National Revenue, [1984] 2 F.C. 535; 55 N.R. 255, refd to. [para. 19].
Katz v. United States (1967), 389 U.S. 347, refd to. [para. 23].
R. v. Pohoretsky, [1987] 1 S.C.R. 945; 75 N.R. 1; 47 Man.R.(2d) 295, consd. [para. 24].
Milton v. The Queen (1985), 16 C.R.R. 215, refd to. [para. 28].
R. v. Dzagic (1985), 16 C.R.R. 310, refd to. [para. 28].
R. v. Griffin (1985), 22 C.R.R. 303 (Ont. Dist. Ct.), refd to. [para. 30].
R. v. LeBlanc (1981), 36 N.B.R.(2d) 675; 94 A.P.R. 675; 64 C.C.C.(2d) 31 (C.A.), dist. [para. 34].
R. v. Santa (1983), 6 C.R.R. 244, refd to. [para. 37].
Olmstead v. United States (1928), 277 U.S. 438, refd to. [para. 37].
R. v. Carter (1982), 144 D.L.R.(3d) 301 (Ont. C.A.), refd to. [para. 38].
R. v. DeCoste (1983), 60 N.S.R.(2d) 170; 128 A.P.R. 170 (T.D.), refd to. [para. 41].
R. v. Jacoy (1988), 89 N.R. 61 (S.C.C.), refd to. [para. 48].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 11]; sect. 8, sect. 24(2) [para. 5].
Criminal Code, R.S.C. 1970, c. C-34, sect. 236.
Hospitals Act, R.S.P.E.I. 1974, c. H-11, generally [para. 13].
Hospitals Act Regulations, Hospital Management Regulations, sect. 37, sect. 47 [para. 13].
Hospital Management Regulations – see Hospitals Act Regulations.
Privacy Act, S.C. 1980-81-82-83, c. 111, generally [para. 25].
Authors and Works Noticed:
Westin, Alan F., Privacy and Freedom (1970), pp. 349, 350 [para. 20].
Privacy and Computers, Report of the Task Force established by the Department of Communications/Department of Justice (1972), pp. 12-14 [para. 22]; 13 [para. 24]; 23 [para. 32].
Marshall, T.D., The Physician and Canadian Law (2nd Ed. 1979), p. 14 [para. 32].
Confidentiality of Health Information, Report of the Krever Commission into (1980), vol. 2, p. 91 [para. 32].
Canada, Law Reform Commission Report on Obtaining Forensic Evidence (No. 25, 1985), p. 1 [para. 39].
Counsel:
Darrell Coombs, for the appellant;
John Maynard, for the respondent.
Solicitors of Record:
Darrell E. Coombs, Charlottetown, Prince Edward Island, for the appellant;
John W. Maynard, O’Leary, Prince Edward Island, for the respondent.
This appeal was heard on April 8, 1987, before Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.
On December 8, 1988, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:
Lamer, J. (Beetz and Wilson, JJ., concurring) – see paragraphs 1 to 3;
La Forest, J. (Dickson, C.J.C., concurring) – see paragraphs 4 to 43;
McIntyre, J., dissenting – see paragraphs 44 to 48;
Le Dain, J., did not participate in the judgment.
