R. v. Colarusso

R. v. Colarusso
Collection
Supreme Court Judgments
Date
1994-01-26
Report
[1994] 1 SCR 20
Case number
22433
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 22433
Decision Content
R. v. Colarusso, [1994] 1 S.C.R. 20
Nicola Colarusso Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec and
the Attorney General for New Brunswick Interveners
Indexed as: R. v. Colarusso
File No.: 22433.
1993: March 30; 1994: January 26.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Coroners Act permitting warrantless seizures by coroners ‑‑ Whether provision violates s. 8 of Canadian Charter of Rights and Freedoms -- Coroners Act, R.S.O. 1980, c. 93, s. 16(2)(a) -- Canadian Charter of Rights and Freedoms, s. 8 .
Constitutional law ‑‑ Validity of legislation ‑‑ Whether investigatory provisions of Coroners Act intra vires province ‑‑ Coroners Act, R.S.O. 1980, c. 93, s. 16(2)(a) ‑‑ Constitution Act, 1867, s. 91(27) .
Appellant was an impaired driver involved in two serious accidents within the course of a few minutes. He first struck a pick‑up truck from behind sending it out of control, stopped briefly and drove on. Both occupants of the truck received significant injuries. Minutes later, appellant's vehicle crossed the centre line of the highway and was involved in a head‑on collision killing the innocent driver. Appellant had been driving without headlights at the time of the second accident ‑‑ 1:30 a.m. The police arrived shortly after the second accident. Appellant had been knocked unconscious, was disoriented on regaining consciousness and his breath smelled of alcohol. Formal demand was made for a breath sample, but no sample was taken. The police arrested appellant and took him to hospital where medical staff took blood and, assisted by a police officer, urine samples as part of a standard "Trauma Protocol Procedure". Although appellant was initially uncooperative, he ultimately consented to the samples being taken for medical purposes only.
A lab technician gave samples of the blood and urine to the coroner at the coroner's request pursuant to s. 16(2) of the Coroners Act but only after the coroner wrote a signed note explaining why he wanted the samples. The coroner then turned the samples over to a police officer at the hospital with instructions that they be properly stored and be taken for analysis.
Appellant was convicted. At trial, the analyst's testimony as to appellant's blood alcohol level, as determined by the tests done on the samples, formed an important part of appellant's convictions as the police had not obtained any independent bodily fluid or breathalyser sample from the appellant. The Court of Appeal upheld appellant's convictions. Here, the constitutional questions queried: (1) whether s. 16(2) of the Coroners Act infringed the Charter guarantee against unreasonable search and seizure (s. 8 ); (2) and if so, whether it was saved by s. 1 ; and (3) whether s. 16(2) was ultra vires the province because it encroached on the federal criminal law power.
Held: The appeal should be dismissed.
Per La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ.: Where a bodily sample is seized by a party other than the police but is ultimately used against the individual in a criminal prosecution, the court must go beyond the initial non‑police seizure and determine whether the actions of the police constitute a seizure by the state or make the initially valid seizure by the coroner unreasonable.
Absent evidence to the contrary, the finding that the police officer who helped appellant urinate into a bottle at the hospital was acting as agent of the hospital and not as a police officer should stand. The presence of the officer, however, was unwise as the hospital staff could have obtained the sample themselves.
The activities of the police after the arrival of the coroner at the hospital could be viewed in two different ways: (1) as amounting to a seizure by the police independent of the prior seizure by the coroner, and (2) as making the originally valid seizure by the coroner unreasonable because that seizure was not confined to the limited statutory purpose but the evidence seized was ultimately used for law enforcement purposes. The seizure, however viewed, violated the guarantee against unreasonable search and seizure in s. 8 of the Charter .
The protection of s. 8 of the Charter can be invoked not only if the bodily fluid sample is taken directly from the person whose rights are affected (and from whom the sample originated) but also from the medical staff who extracted the sample. This protection of s. 8 necessarily extends to a state seizure where the "taking" is from the immediate possession of another person who is lawfully in possession of the bodily sample.
Here, the criminal investigation was already under way when the coroner gave the samples to the police. The evidence, prior to the taking of the blood and urine samples, was insufficient to sustain a conviction for the impaired driving offences. The police knew that further evidence of intoxication was required and consequently made a formal demand for a breathalyser sample at the accident scene. After the coroner gave the blood and urine samples to the police officers for the purpose of transporting it to the laboratory, no further attempt was made to obtain a breathalyser sample or a warrant for a blood sample. The police must have known that they could use the results of the analysis as evidence against the appellant and may have regarded the blood sample as the best available evidence. Given the effective control by the police over the samples held by another agent of the state, the police seized the blood sample from the appellant independently of the coroner's seizure (although the police seizure was obviously facilitated by the actions of the coroner).
The actions of the police violated appellant's right to be secure against unreasonable seizures. The reasonable expectation of privacy in one's own bodily fluids guaranteed by s. 8 of the Charter is not diminished merely because a coroner chooses to exercise his or her power to seize evidence under s. 16(2) of the Coroners Act. The coroner's intervention accordingly did not alter the fact that the police must comply with the requirement in Hunter v. Southam Inc. that prior judicial authorization be obtained before seizing a bodily sample. The note written by the coroner to obtain the release of the samples from the hospital staff failed to meet the standards of a seizure for criminal investigation purposes because the coroner is not an independent judicial officer and the standard with which the coroner must comply is only the good faith belief that the evidence is necessary for the purposes of his or her non‑criminal investigation. The subpoena obtained to bring the analyst to trial too was inadequate because it was not obtained until after the seizure by the police occurred and the evidence obtained by means of the subpoena was therefore the fruit of the invalid procedure.
The seizure, when the evidence was being used by the coroner for valid non‑criminal purposes within the scope of the Coroners Act, was reasonable and did not violate s. 8 of the Charter . A lower standard than the Hunter requirement of prior judicial authorization may be acceptable in such circumstances. However, once the evidence or the information derived from it is appropriated by the state's criminal law enforcement arm for use against the person from whom it was seized, the seizure will become unreasonable and run afoul of s. 8 of the Charter . The state's criminal law enforcement arm cannot "piggy back" the coroner's investigation to circumvent the guarantees of Hunter.
It was not necessary to decide the constitutional questions, either as regards the alleged breach of the Charter or as regards the constitutional powers of the province relating to s. 16(2) of the Coroners Act under the Constitution Act, 1867 because the search, even assuming validity, was unreasonable.
While provincial legislation governing the conduct of inquests does not generally constitute an improper intrusion into the federal criminal law power, all the investigative powers granted to coroners are not necessarily within the legislative competence of the provinces. Even though an inquest is only held in the absence of any criminal charges, the coroner's investigation may overlap with an existing police investigation after charges have been laid or where charges may be pending. The potential for unacceptable infringement on the federal criminal law power is therefore greater at the investigative stage than during the inquest itself. The coroner's dependency on the police during the investigative stage mandated under s. 16(4) and s. 16(5) of the Coroners Act brings these provisions dangerously close to the boundary of legislation in the sphere of the federal criminal law power.
The coroner cannot be allowed to be in the position of assisting the criminal investigation through his or her compliance with the mandatory elements of s. 16(5) of the Coroners Act. The coroner can seize without complying with the Hunter standards because he or she does so for a purpose that is unrelated to a criminal investigation. Section 16(5) of the Coroners Act cannot be interpreted to permit the coroner to convert this exemption from these standards into an exemption for the police in the conduct of a criminal investigation. The application of s. 16(5) of the Coroners Act must be restricted to situations in which it can clearly be determined that the police officers are acting merely as the agents of the coroner. Any other interpretation would imperil its constitutional validity. The police officers here were not acting as the agents of the coroner at the material times; rather, they were acting in furtherance of their criminal investigation.
Section 16(4), which provides that a coroner may authorize a police officer or a medical practitioner to exercise all the investigative powers granted to the coroner in s. 16(2), is equally troubling. This provision allows a coroner to delegate certain powers in emergency situations where he or she is unable to attend at the scene immediately. The danger is that the distinction between the coroner's investigation and the criminal investigation will be obliterated and the two investigations amalgamated into one. As well, by delegating s. 16(2) powers to the police, a coroner is giving the police investigatory powers beyond that which they normally possess given the reduced procedural requirements with which the investigator must comply under s. 16.
In determining whether evidence should be rejected under s. 24(2) of the Charter as bringing the administration of justice into disrepute, three factors should be considered: (1) the effect of admission of the evidence on the fairness of the trial process; (2) the seriousness of the Charter violation; and (3) the effect of exclusion on the reputation of the administration of justice.
The evidence of the forensic analyst at trial as to the alcohol content of the blood sample should not be excluded under s. 24(2) of the Charter : its admission would not bring the administration of justice into disrepute. The independent and prior existence of the sample, completely apart from any s. 8 infringement by the state, is an important consideration weighing on the side of allowing the introduction of the evidence. So too was the fact that all parties to the gathering of the samples ‑‑ the medical staff, the coroner and the police ‑‑ acted in good faith and believed that they were acting within the areas of their authority. The critical evidence would almost certainly have been discovered absent the violation and would have been obtained under a warrant. The Charter infringement accordingly had only a minimal effect on the outcome of the trial. Finally, the offence occurred in such aggravating circumstances that the repute of the administration of justice would be negatively affected if the evidence were to be excluded.
Per Lamer C.J. and Cory, McLachlin and Major JJ.: Appellate interference with the finding that the samples were taken with appellant's consent solely for medical purposes was unwarranted because the evidence supported this finding. The act of obtaining these samples did not constitute a seizure within the meaning of s. 8 of the Charter . The coroner's taking the samples from the hospital staff was conceded to constitute a seizure for the purposes of s. 8 of the Charter ; the hospital held them solely for medical reasons. The tendering of the coroner's samples and analysis into evidence at criminal proceedings did not constitute a further seizure.
The police did not need to obtain a warrant to obtain blood from the accused or pursue their demand for a breath sample because the samples existed and were analysed. An important distinction exists between obtaining samples in breach of the accused's right to refuse treatment and the use in court of evidence obtained pursuant to statutory authority. The only seizure attracting s. 8 scrutiny was that by the coroner under s. 16(2) of the Coroners Act.
The coroner's seizure was reasonable because it was authorized by the Coroners Act which was both valid and reasonable and it was effected in a reasonable manner. The coroner was entitled, and perhaps required by law, to continue his investigation notwithstanding the simultaneous police investigation. Section 27 of the Coroners Act does not bar investigation by a coroner when a person has been (or is likely to be) charged with an offence under the Criminal Code in respect of the death in question.
Assuming the constitutionality of the rest of s. 16, which is not challenged, the powers conferred under s. 16(2) of the Coroners Act are intra vires the province. These powers are incidental to the duties assigned to coroners, notably to investigate a death to determine if an inquest is necessary. This power, when used to seize samples of bodily substances of an accused, does not constitute an intrusion by provincial action of the sanctity of the right to remain silent and therefore does not violate the federal criminal law power.
The seizure was reasonable and accordingly did not violate s. 8 of the Charter notwithstanding the absence of prior judicial authorization. The reasonableness of the power granted must be analysed in light of the particular context in which it operates. Here, the coroner has both investigative and quasi‑judicial duties. The criterion in Hunter v. Southam Inc. that there be reasonable and probable cause to believe that a specific offence has been committed was inapplicable in this context because the coroner's role was not to investigate crime or to reach any conclusions about whether a crime has been committed. Given this irrelevancy, the applicability of the other Hunter v. Southam Inc. criteria was doubtful.
No police seizure occurred here. The court must focus on how the public authority (the police) obtained the samples. Here, the coroner obtained the samples pursuant to s. 16(2) of the Coroners Act and turned them over to the police for safekeeping pursuant to s. 16(5). Assuming the constitutionality of s. 16(2), no taking by the police of the samples occurred without the person's consent apart from the actions which are consequent upon the coroner's seizure. No complaint was made as to the discovery of the evidence (implicating the law of search) or as to the steps taken to preserve it (implicating the law of seizure). The police knew of the evidence and were not concerned to preserve it apart from fulfilling their duties with respect to the Coroner's Act.
There was no improper cooperation among the coroner, the police and medical personnel so as to cause the police actions to constitute a seizure. The presence of the police officer in the emergency department was quite proper given that the accused was under arrest. The hospital lab technician was initially reluctant to turn over the samples to the coroner and only did so after speaking to the attending physician and obtaining a written note from the coroner. The police were required to take charge of the samples by virtue of s. 16(5) of the Coroners Act. (The constitutionality of this provision was not challenged here.)
It was not necessary to decide if calling the analyst to testify as to the significance of the samples constituted a seizure by the Crown within the meaning of s. 8 of the Charter . Even if this is characterized as a seizure within the meaning of s. 8 , it is reasonable. The Thomson criteria for prior authorization were met as far as the introduction of the evidence at trial was concerned. Given these circumstances, the interest of the state in taking and using the information took precedence over the accused's privacy interest. His rights under s. 8 were not violated by the production of the evidence against him at trial.
Cases Cited
By La Forest J.
Considered: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; referred to: R. v. Pohoretsky, [1987] 1 S.C.R. 945; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Faber v. The Queen, [1976] 2 S.C.R. 9; Starr v. Houlden, [1990] 1 S.C.R. 1366; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Dersch, [1993] 3 S.C.R. 768; R. v. Erickson (1992), 72 C.C.C. (3d) 75, aff'd [1993] 2 S.C.R. 649; R. v. Therens, [1985] 1 S.C.R. 613.
By Lamer C.J. and Cory, McLachlin and Major JJ.
Considered: R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dersch, [1993] 3 S.C.R. 768; referred to: Starr v. Houlden, [1990] 1 S.C.R. 1366; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 24(1) , (2) .
Constitution Act, 1867, s. 91(27) .
Coroners Act, R.S.O. 1980, c. 93 (now R.S.O. 1990, c. C‑37), ss. 15, 16(2), (4), (5), 27, 31(1), (2).
Criminal Code, R.S.C. 1970, c. C‑34, s. 238(3) [am. S.C. 1985, c. 19, s. 36].
Authors Cited
Fairburn, Michal. "Case Comment: R. v. Colarusso" (1992), 4 J.M.V.L. 34.
Granger, Christopher. Canadian Coroner Law. Toronto: Carswell, 1984.
Marshall, T. David. Canadian Law of Inquests: a Handbook for Coroners, Medical Examiners, Counsel and the Police, 2nd ed. Scarborough, Ont.: Thomson Professional Pub. Canada, 1991.
APPEAL from a judgment of the Ontario Court of Appeal (1991), 44 O.A.C. 241, 28 M.V.R. (2d) 7, affirming the accused's conviction by Speyer Dist. Ct. J. on two counts of impaired driving causing bodily harm, one count of failing to stop at the scene of an accident and one count of criminal negligence causing death. Appeal dismissed.
Clayton C. Ruby and Julian N. Falconer, for the appellant.
Ken Campbell and Renee M. Pomerance, for the respondent.
Michael R. Dambrot, Q.C., and Chantal Proulx, for the intervener the Attorney General of Canada.
Monique Rousseau and Gilles Laporte, for the intervener the Attorney General of Quebec.
Gabriel Bourgeois, for the intervener the Attorney General for New Brunswick.
The reasons of Lamer C.J. and Cory, McLachlin and Major JJ. were delivered by
Lamer C.J. and Cory, McLachlin and Major JJ. -- The appellant was convicted at trial by judge alone on two counts of impaired driving causing bodily harm, one count of failing to stop at the scene of an accident, and one count of criminal negligence causing death. An appeal to the Ontario Court of Appeal was dismissed.
The issues raised by this appeal centre around the seizing of blood and urine samples by a coroner, and the subsequent use of analysis of those samples as evidence at the appellant's trial.
I. Facts
Shortly after 1:00 a.m. on November 15, 1986, two motor vehicle collisions occurred within minutes of each other about 1.6 kilometres apart on Highway 10 near Caledon, Ontario.
In the first collision, the appellant's vehicle rear-ended a pick-up truck. The truck had turned onto Highway 10 about 450 metres north of the site of the accident, and had accelerated to about 80 kilometres per hour by the time of the collision.
An off-duty police officer witnessed the first collision. He testified at the appellant's trial that he saw a Toyota pick-up truck being closely followed by a dark car, now known to be driven by the appellant. As he passed the two vehicles he heard a loud bang, which was caused by the appellant's car colliding with the rear of the pick-up truck. The truck flipped over, landing in a ditch, and its occupants were seriously injured. The appellant's car was seen by the witness to stop briefly at the side of the road and then to leave.
In the second collision, the appellant's car collided head-on with a Hyundai Pony. The second collision was witnessed by the driver of a car following a short distance behind the Hyundai. The appellant's car was driving without headlights southbound in a northbound lane of Highway 10. It then collided with the Hyundai. As a result of the second collision, the occupant of the Hyundai, Carol Connors, was killed and the appellant was injured.
The appellant was arrested at the scene of the second accident by attending police officers who observed signs of impairment. He was advised of his Charter rights, and a demand was made for a sample of his breath. However, before that could occur, the appellant was driven by the police to hospital in Orangeville for treatment of injuries he had sustained. No breathalyser test was given. Nor did the police make a demand for a blood sample.
The trial judge found as a fact that while the appellant was detained by the police at the hospital, he consented to blood and urine samples being taken for medical purposes. These tests were requested by the hospital as part of its standard "Trauma Protocol Procedure" for accident victims.
The urine sample was supplied by the appellant to, and in the presence of, a police officer. The sample was taken in a container provided for that purpose, free of contaminants. The sample was not retained by the police but was given by the police officer to hospital staff.
The urine sample was tested for the presence of blood. This test was conducted by an emergency department nurse. After she was finished, some of the urine was put in a container for the hospital lab.
The blood sample was taken by a nurse and was given to the hospital lab. The lab technician put blood from the test syringe into five separate test tubes.
The coroner, Dr. Warren Allin, had been called to the scene of the second accident, and then went to the hospital for the purposes of investigating Ms. Connors' death. He needed samples of the appellant's blood and urine to assist in that investigation. Dr. Allin testified he wanted these samples to determine if the appellant had been impaired.
The coroner, accompanied by a police officer, went to the hospital lab. He gave written directions to the lab technician that a portion of the blood and urine samples be turned over to him. The coroner then gave the samples to the police officer, requesting that they be taken to the Centre for Forensic Sciences and properly stored.
The Crown called as a witness, a forensic toxicologist, who had analyzed the samples at the request of the coroner for his own purposes under the Coroners Act. The forensic toxicologist testified that at the time of the accidents the appellant had a blood alcohol level between 144 and 165 mg per 100 ml of blood.
II. Relevant Constitutional and Statutory Provisions
Section 91(27) of the Constitution Act, 1867 confers upon the Parliament of Canada exclusive legislative authority over "The Criminal Law...." Sections 1 , 8 and 24 of the Canadian Charter of Rights and Freedoms ("the Charter ") provide:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
8. Everyone has the right to be secure against unreasonable search or seizure.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Section 16(2)(c) and (5) of the Coroners Act, R.S.O. 1980, c. 93 (now R.S.O. 1990, c. C-37), reads:
16. . . .
(2) A coroner may, where he believes on reasonable and probable grounds that to do so is necessary for the purposes of the investigation,
. . .
(c)seize anything that the coroner has reasonable grounds to believe is material to the purposes of the investigation.
(5) Where a coroner seizes anything under clause (2) (c), he shall place it in the custody of a police officer for safekeeping and shall return it to the person from whom it was seized as soon as is practicable after the conclusion of the investigation or, where there is an inquest, of the inquest, unless he is authorized or required by law to dispose of it otherwise.
III. Judgments in the Courts Below
District Court of Ontario
The trial judge held that the seizure of the blood and urine samples by the coroner was lawful pursuant to s. 16(2)(c) the Coroners Act, and did not offend s. 8 of the Charter . He distinguished R. v. Dyment, [1988] 2 S.C.R. 417, on the basis of the seizure here being authorized by law, stating:
I wish to emphasize, the seizure was made not to assist Constable Dambrawskas as part of his criminal investigation as to whether or not the accused was impaired at the time he was driving. Rather the samples were seized as part of a totally different investigation undertaken by the Coroner into the death of Carol Connors and the cause thereof. Accordingly, I find the seizures were made lawfully and do not offend the rights of the accused guaranteed by S. 8 of the Charter .
Court of Appeal for Ontario (1991), 44 O.A.C. 241
Finlayson J.A., who gave the reasons for judgment of the Court, noted that the seizure of the blood and urine samples was not made by police, but by the coroner, exercising his powers under s. 16(2)(c) of the Coroners Act. The seizure made by the coroner "was fully within his authority" and was legal.
Finlayson J.A. did not consider it necessary to rule on the constitutional validity of s. 16(2) of the Coroners Act, stating at p. 243:
Even assuming that s. 16(2) of the Coroners Act is unconstitutional and that the coroner's obtaining of the samples was unlawful, the evidence would nevertheless be admissible under s. 24(2) of the Charter . The coroner's seizure was made in the good faith belief that he was acting lawfully. If the samples had not been obtained under s. 16(2) of the Coroners Act they could have been obtained by the police under a search warrant which, on the facts of this case, would most certainly have been obtained.
It is clear then that the admission of the evidence of the analyst in these circumstances would not bring the administration of justice into disrepute.
IV. Issues
On August 17, 1992, the Chief Justice stated the following constitutional questions:
1.Is s. 16(2) of the Coroners Act, R.S.O. 1980, c. 93, as amended, inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ?
2.If s. 16(2) of the Coroners Act, R.S.O. 1980, c. 93, as amended, is inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms , does this provision operate as a reasonable limit, prescribed by law, which is demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?
3.Does s. 16(2) of the Coroners Act, R.S.O. 1980, c. 93, as amended, encroach upon the federal criminal law power, and, if so, is the provision ultra vires provincial legislative jurisdiction?
The appellant has also raised several additional issues:
1.Did the Court of Appeal err in affirming the trial judge's findings that the appellant consented to the obtaining of blood and urine samples?
2.Did the Court of Appeal err in affirming the trial judge's finding that the seizure of the appellant's blood and urine samples did not constitute an infringement of his rights under s. 8 of the Charter ?
3.Did the Court of Appeal err in failing to exclude the evidence arising from the blood and urine samples pursuant to s. 24(2) of the Charter ?
V. Analysis
The Trial Judge's Finding of Consent
The appellant submits that the trial judge erred in finding that he consented to the blood and urine samples being taken for medical purposes. He also takes the position that the samples were taken for both medical and police investigative purposes. These arguments cannot succeed. The finding of fact made by the trial judge that the samples were taken with the consent of the appellant and solely for medical purposes is supported by the evidence and there is no basis for appellate interference with that.
Section 8 of the Charter
The Seizure
To fall within s. 8 of the Charter , there must first be a search or seizure. In this case, the appellant submits that there were in fact three searches or seizures for the purposes of the s. 8 analysis.
i)The obtaining of blood and urine samples from the appellant by hospital staff
As pointed out above, the appellant has failed to show that this constituted a search or seizure on the facts of this case. The findings of the trial judge were that the blood and urine samples were taken for medical purposes and with the consent of the accused. These findings were not disturbed in the Court of Appeal and there is no proper basis upon which we should interfere with them. The samples were held by the hospital for medical purposes and no others.
ii)The coroner seized the samples from hospital staff after they had been taken from the accused
It is conceded by the respondent Crown that the actions of the coroner in taking possession of the samples of the appellant's blood and urine constituted a seizure for the purposes of s. 8 of the Charter .
The questions which must be addressed concerning this seizure are, first, whether it was authorized by law; second, whether the law itself was reasonable; and third, whether the way the seizure was carried out was reasonable. We say at once that if the provisions of the Coroners Act under which the seizure was effected are valid, then the manner in which the seizure was carried out was reasonable. There is no suggestion that the coroner meddled in the rendering of medical assistance or did anything other than exercise his statutory powers in a straightforward way. The appellant submits that it was unreasonable for the coroner to seize samples in the fashion that he did during an ongoing criminal investigation. We disagree. The coroner had his duty to do and the samples provided evidence relevant to his investigation. He and the police were interested in some of the same material, but for different purposes. The appellant's submission is, in essence, that the coroner must stop his investigation if charges are pending. We say instead that the coroner is entitled to conduct his investigation provided, as here, that he does so for proper purposes and in a reasonable fashion.
Authorized by Law
There is no doubt that the seizure is authorized by the Coroners Act. Contrary to the assertions of the appellant, s. 27 of the Coroners Act does not have the effect of barring investigation by a coroner when a person has been (or is likely to be) charged with an offence under the Criminal Code in respect of the death in question. The coroner was entitled, and perhaps required, by law to continue his investigation notwithstanding the simultaneous police investigation and the prospect of the appellant's being charged with a criminal offence. The appellant submits, however, that s. 16(2) is ultra vires the province or, alternatively, violates s. 8 .
(a)Division of Powers
With respect to the division of powers point, the appellant's challenge is very narrowly focused. While the constitutional questions refer to s. 16(2), the appellant's factum challenges only s. 16(2)(c). We therefore must begin the analysis on the assumption (but of course without finally deciding) that the other provisions of the Act are constitutional.
The powers conferred under s. 16(2) are incidental to the duties assigned to coroners, notably to investigate a death to determine if an inquest is necessary. The appellant submits that the powers conferred in s. 16(2), when used to seize samples of bodily substances of an accused, are tantamount to the invasion by provincial action of the sanctity of the right to remain silent and therefore intrudes upon the federal criminal law power.
Assuming, as we must for the purposes of this appeal, that the Coroners Act in general is valid provincial legislation, and finding as we do that the coroner's powers were exercised in good faith and for the purposes of an investigation which he was required by law to make, we reject the argument that there was any unconstitutional provincial intrusion upon the federal criminal law power. As Lamer J. (as he then was) said on behalf of the majority in Starr v. Houlden, [1990] 1 S.C.R. 1366, at pp. 1390-91:
. . . this Court has consistently upheld the constitutionality of provincial commissions of inquiry and has sanctioned the granting of fairly broad powers of investigation which may incidentally have an impact upon the federal criminal law and criminal procedure powers.
In our view, the powers conferred in s. 16(2) are properly incidental to the valid provincial purposes served by the Coroners Act.
(b)Section 8 of the Charter
We now turn to the challenge to s. 16(2) of the Act based on s. 8 of the Charter . The appellant argues that the seizure authorized by s. 16(2) is unreasonable because there is no requirement for prior authorization by a judicial officer based upon evidence on oath.
At the outset, we note that the requirements established in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, are not inflexible requirements applicable to all legislative contexts. For example, in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. in considering the power to require production of documents under the Combines Investigation Act, found that while constituting a seizure within the meaning of s. 8 of the Charter , it need not meet the Hunter v. Southam Inc. requirements. La Forest J. pointed out at p. 506:
Since the adoption of the Charter , Canadian courts have on numerous occasions taken the view that the standard of reasonableness which prevails in the case of a search or seizure made in the course of enforcement of the criminal law will not usually be appropriate to a determination of reasonableness in the administrative or regulatory context; see Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1 D.L.R. (4th) 301 (Alta. C.A.), at p. 307; R. v. Rao (1984), 46 O.R. (2d) 80 (C.A.), at p. 96; Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 51 O.R. (2d) 509 (C.A.), at p. 512; R. v. Quesnel (1985), 12 O.A.C. 165, at p. 169; Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291 (C.A.), at pp. 319, 324 and 341-43; R. v. Bichel, [1986] 5 W.W.R. 261 (B.C.C.A.), at pp. 271-73. The same approach underlies the decision of this Court in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, released concurrently, in which an order to produce documents issued under s. 231(3) of the Income Tax Act is viewed as administrative and held to be not unreasonable under s. 8 of the Charter .
The application of a less strenuous and more flexible standard of reasonableness in the case of administrative or regulatory searches and seizures is fully consistent with a purposive approach to the elaboration of s. 8 .
The key aspect of the analysis is to assess the reasonableness of the power granted in light of the particular context in which it operates.
The coroner's role is to investigate deaths and to determine whether an inquest is required: s. 15. If an inquest is held, its purpose is to determine the identity of the deceased, how the deceased came to his or her death including when, where and by what means: s. 31(1). The determination of these matters is, of course, for the jury at the inquest, which is expressly prohibited from making any finding of legal responsibility: s. 31(2). The coroner has both investigative and quasi-judicial duties. He or she is required not only to investigate the death but also to preside at the inquest.
The powers under s. 16(2) are limited to inspection of any place in which the deceased person was prior to his or her death, to inspect and extract information from any records or writings relating to the deceased or his or her circumstances and reproduce such copies as he or she believes to be necessary and to seize anything that he or she has reasonable grounds to believe is material to the investigation.
The Hunter v. Southam Inc. criterion that there be reasonable and probable cause to believe that a specific offence has been committed is inapplicable in this context. It is not the coroner's role to investigate crime or to reach any conclusions about whether a crime has been committed.
Once it is determined that this criterion is not relevant, the applicability of the other Hunter v. Southam Inc. criteria is doubtful. As La Forest J. said in Thomson at p. 529:
If it is unnecessary under s. 17 to establish the existence, on reasonable and probable grounds, of a belief that a particular offence has been committed, then compliance with the remaining Hunter v. Southam Inc. criteria also becomes unnecessary. All of these are derivative from the reasonable and probable grounds requirement. This is obviously the case in respect of the requirement to show "reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered". It is also true of the requirement that the use of the power of search or seizure must depend on "a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the state against those of the individual". As Wilson J. today points out in R. v. McKinlay Transport Ltd., there is no role for such an arbiter where there is no requirement of reasonable and probable grounds, since "his central role under Hunter is to ensure that the person seeking the authorization has reasonable and probable grounds to believe that a particular offence has been committed, that there are reasonable and probable grounds to believe that the authorization will turn up something relating to that particular offence, and that the authorization only goes so far as to allow the seizure of documents relevant to that particular of