After consuming alcohol, the Appellant was involved in a motor vehicle accident that resulted in the death of the driver and their young child…
WHAT YOU NEED TO KNOW
-There is no automatic reasonable expectation of privacy with respect to activities that occur in a hospital.
-In this case, there was reasonable expectation of privacy when the police leaned in and smelled the breath of an accused during an interview in hospital emergency room.
– Given the manner in which the information (the smell of alcohol) was acquired by police, the nature of the information and society’s strong interest in protecting the community from dangerous conduct on public highways, the Appellant had no REP in the information that he may have been drinking before the accident.
BACKGROUND
After consuming alcohol, the Appellant was involved in a motor vehicle accident that resulted in the death of the driver and their young child. The Appellant was taken to the emergency room where blood samples were taken for medical purposes. The lead investigator arrived shortly after to speak with the Appellant, the sole survivor of the accident. The doctor advised the investigator he had no medical concerns with the him speaking to the Appellant but that he may be “out of it” on account of the alcohol consumption and morphine administered. The investigator and another officer entered the treatment room and began to interview the Appellant who was in and out of consciousness. They advised the Appellant he had no obligation to speak with them and attempted to caution him, although they concluded he was not able to appreciate the caution. A few minutes into the interview, the investigator bent over the Appellant and smelled alcohol on his breath. The officers concluded they did not have reasonable probable grounds at that time to arrest the Appellant.
The investigator later applied for a search warrant* to seize the blood samples and a production order requiring the hospital to produce hospital records pertaining to any testing by the hospital of the Appellant’s blood. As part of the ITO, the investigator relied on, amongst other things, the smell of alcohol he detected on the Appellant’s breath in the hospital treatment room. *The investigator actually applied for a warrant on two prior occasions which were denied for various reasons.
The blood sample analysis ultimately showed that the Appellant’s BAC at the time of the accident was somewhere between .124 and .164.
The Appellant was ultimately charged with and convicted of two counts of over 80 causing death, two counts of impaired driving causing death and two counts of dangerous driving causing death.
TRIAL JUDGE’S RULING
The trial judge concluded that the officers’ smelling of the Appellant’s breath while he was lying semi-conscious in the hospital room violated the Appellant’s s. 8 rights to be secure against unreasonable search or seizure. She excised that information from the ITO and concluded that without it, the warrant could not have been issued. The seizures of the blood samples and the medical records were, therefore, warrantless and unlawful. Ultimately, however, the trial judge concluded that the blood samples and medical records should not be excluded from evidence.
ISSUES ON APPEAL
The Appellant appeals against his conviction only. His appeal focuses exclusively on the admissibility of the BAC results on the basis that his section 8 Charter rights were violated and the BAC results ought to be excluded pursuant to s. 24(2). The Appellant submits that the trial judge properly concluded that his section 8 rights were violated but erred in failing to exclude the BAC results.
Holding – Appeal dismissed.
ANALYSIS
The Court of Appeal concluded that the trial judge actually erred in concluding that the Appellant’s s. 8 rights were breached. As a result, there was no need to consider s. 24(2).
In this case, the police “seized” the exhaled air when they took that air into their nose and “seized” certain information revealed by smelling that air, namely that the Appellant may, at some point prior to the accident, have consumed some unknown quantity of alcohol.
Police officers routinely smell the breath of drivers for alcohol when conducting roadside stops, at accident scenes, in ambulances, and in hospitals. It is well established that those interactions do not engage section 8 (see for example R. v. McColman, 2023 SCC 8, at para. 6). A determination of whether a reasonable expectation of privacy exists, however, is a fact-specific and contextual inquiry based on the “totality of the circumstances”.
Given the nature of driving on public streets, the community expects and accepts significant limitations on individual privacy. There are also significant public safety concerns relating to impaired driving. These broader concerns inform the appropriate balancing between interests ins effective law enforcement and the individual’s interest in being left alone by the state. Reasonable expectation of privacy is intended to reflect a balancing of these competing interests.
Ultimately, the Court of Appeal concluded that the officers did not interfere with or intrude upon the Appellant’s bodily integrity (i.e. “personal privacy”). Smelling a person’s breath, even from two inches away, is neither invasive or an intrusion into an “intimate area”. The Appellant was simply doing what all people are always doing: breathing in and out. The officers used nothing more than their own olfactory senses to smell the Appellant’s exhaled breath. There is no difference between this conduct and other observations made by police with their eyes and ears
Similarly, the Court of Appeal concluded that the seizure did not violate the Appellant’s informational privacy interests. Information pertaining to alcohol consumption attracts a “diminished” or “minimal” expectation of privacy when that information is extracted from a driver’s body using a roadside screening device or breathalyzer. That expectation of privacy essentially disappears when the information concerning the driver’s potential alcohol consumption comes exclusively from the police officer’s olfactory observations. First, the information was available to the police when they were in a place they were lawfully entitled to be. Second, the police were using only their observational powers. Third, the information gained by the police officers revealed very little about the Appellant – the information alone did not tell the police whether he was impaired or not or whether he had committed any criminal event. Fourth, the consumption of alcohol is not an intimate or inherently private activity.
To conclude, given the manner in which the information (the smell of alcohol) was acquired by police, the nature of the information and society’s strong interest in protecting the community from dangerous conduct on public highways, the Appellant had no REP in the information that he may have been drinking before the accident.
