R. v. Taylor (J.K.) (2014), 572 A.R. 81; 609 W.A.C. 81 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2014] A.R. TBEd. JL.121
Her Majesty The Queen (appellant) v. Jamie Kenneth Taylor (respondent) and Director of Public Prosecutions of Canada, Attorney General of Ontario and Canadian Civil Liberties Association (intervenors)
(35609; 2014 SCC 50; 2014 CSC 50)
Indexed As: R. v. Taylor (J.K.)
Supreme Court of Canada
Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ.
July 18, 2014.
Summary:
The accused driver was involved in a single vehicle accident. His three passengers were injured. The police officer, noting standard indicia of alcohol consumption, arrested the accused for impaired driving causing bodily harm and advised him of his Charter rights. The accused wished to exercise his right to counsel. A paramedic opined that the accused appeared uninjured, but followed the standard practice of transporting him to hospital to be medically checked out. The accused waited approximately 45 minutes in the hospital emergency room to be seen by a doctor. While being medically assessed, blood was drawn by hospital personnel for medical purposes. That decision was independently made, not as the Crown’s agent. At that time, the officer made a blood sample demand and obtained a blood sample for police analysis. At no time was the accused given an opportunity to call a lawyer. The officer testified that he forgot to do so. The officer subsequently applied for, and obtained, a warrant to seize the hospital blood sample, which was also sent for police analysis. At trial, the Crown sought admission of the certificate of analysis respecting the seized hospital blood sample. The Crown, recognizing that the accused had never been advised of his right to counsel, did not seek to admit the certificate evidence respecting analysis of the blood taken pursuant to the officer’s blood sample demand. The accused, alleging a denial of his right to counsel, sought exclusion of the certificate evidence under s. 24(2) of the Charter. The accused also claimed that the information to obtain the warrant to seize the hospital blood sample was insufficient.
The Alberta Court of Queen’s Bench, in a judgment reported (2011), 527 A.R. 173, dismissed the application. The failure to afford the accused an opportunity to consult with counsel at the accident scene and while awaiting medical treatment at the hospital did not infringe the accused’s s. 10(b) right to counsel. The accused’s right to counsel was not violated until after the hospital blood sample was taken. It was important that there was no collusion between the hospital and the officer to obtain a blood sample for criminal investigation purposes. Finally, the court rejected the accused’s submission that the information to obtain the warrant to seize the hospital blood sample was insufficient. The information provided by the officer was neither misleading nor fraudulent. The information provided, as amplified on the voir dire, was sufficient to issue the warrant. The accused, subsequently convicted of three counts of impaired driving causing bodily harm, appealed the failure to exclude the blood sample evidence on the ground that his Charter rights were violated.
The Alberta Court of Appeal, Slatter, J.A., dissenting, in a judgment reported (2013), 561 A.R. 103; 594 W.A.C. 103, allowed the appeal, set aside the convictions and substituted acquittals. The Crown appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 4604
Right to counsel – General – Denial of or interference with – What constitutes – [See
Civil Rights – Topic 4605
].
Civil Rights – Topic 4605
Right to counsel – General – Denial of – Due to lack of time or opportunity – The accused driver was involved in a single vehicle accident – Passengers were injured – The police officer, noting standard indicia of alcohol consumption, arrested the accused for impaired driving causing bodily harm and advised him of his Charter rights – The accused asked to exercise his right to counsel – A paramedic opined that the accused appeared uninjured, but followed the standard practice of transporting him to hospital to be medically assessed – The accused waited approximately 45 minutes in the hospital emergency room to be seen by a doctor – While being medically assessed, blood was drawn by hospital personnel for medical purposes – At that time, the officer made a blood sample demand and obtained a blood sample for police analysis – At no time was the accused given an opportunity to call a lawyer – The officer testified that he forgot to do so – The officer subsequently applied for, and obtained, a warrant to seize the hospital blood sample, which was also sent for police analysis – At trial, the Crown sought admission of the certificate of analysis respecting the seized hospital blood sample – The accused, alleging a denial of his right to counsel, sought exclusion of the certificate evidence under s. 24(2) of the Charter – The trial judge dismissed the application – On appeal, the evidence was excluded – The Supreme Court of Canada affirmed that the accused’s right to counsel was violated where he was not afforded an opportunity at the hospital, before blood samples were taken, to call a lawyer – In light of privacy and safety issues, the police were under no legal duty to provide their own cell phone to a detained individual – The court stated that “There may well be circumstances when it will not be possible to facilitate private access to a lawyer for a detained person receiving emergency medical treatment. … a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances. But those attenuating circumstances are not engaged in this case. … To suggest … that it is presumptively reasonable to delay the implementation of the right to counsel for the entire duration of an accused’s time waiting for and receiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, undermines the constitutional requirement of access to counsel ‘without delay’. … An individual who enters a hospital to receive medical treatment is not in a
Charter
-free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances” – No steps were taken to facilitate the accused’s request to call a lawyer – Applying the “Grant” factors, the court affirmed exclusion of the certificate evidence – See paragraphs 20 to 42.
Civil Rights – Topic 4610
Right to counsel – General – Impaired driving (incl. demand for breath or blood sample) – [See
Civil Rights – Topic 4605
].
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – [See
Civil Rights – Topic 4605
].
Cases Noticed:
R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 2].
R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 21].
R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36, refd to. [para. 21].
R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 22].
R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 23].
R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 23].
R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368 (C.A.), refd to. [para. 24].
Brownridge v. R., [1972] S.C.R. 926, refd to. [para. 25].
R. v. Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 26].
R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 26].
R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 37].
R. v. Spencer (M.D.) (2014), 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, refd to. [para. 38].
Counsel:
Jason R. Russell, for the appellant;
Patrick C. Fagan, Q.C., and Kaysi Fagan, for the respondent;
Nick Devlin and Jennifer Conroy, for the intervenor, the Director of Public Prosecutions of Canada;
Frank Au, for the intervenor, the Attorney General of Ontario;
David S. Rose, for the intervenor, the Canadian Civil Liberties Association.
Solicitors of Record:
Attorney General of Alberta, Edmonton, Alberta, for the appellant;
Fagan & McKay, Calgary, Alberta, for the respondent;
Public Prosecution Service of Canada, Toronto, Ontario, for the intervenor, the Director of Public Prosecutions of Canada;
Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;
David Rose Law, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association.
This appeal was heard on April 23, 2014, before Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.
On July 18, 2014, Abella, J., delivered the following judgment for the Court in both official languages.
