R. v. Pohoretsky

Lamer J.‑‑ Dale Wayne Pohoretsky was tried and convicted in Manitoba by a Provincial Court Judge of driving a car while having more than 80 milligrams of alcohol in his blood, contrary to s. 236 of the Criminal Code of Canada , R.S.C. 1970, c. C‑34, as it then stood. He appealed to the County Court and the conviction was quashed and he was acquitted. That decision was appealed by the Crown and the Manitoba Court of Appeal restored the trial judge's conviction. Pohoretsky was granted leave to appeal to this Court.

What makes this case of particular interest is the fact that the appellant was convicted through the introduction into evidence of the analysis of a sample of his blood which was obtained without his consent. At the time the sample was obtained, ss. 1 and 2 of the Manitoba Blood Test Act, S.M. 1980, c. 49, C.C.S.M., c. B63 provided:

1 Where a duly qualified medical practitioner has reasonable and probable grounds to believe that a person whom he is treating or who has been brought to him for treatment has, at any time within the preceding 2 hours, been driving or had the care and control of a motor vehicle, or been navigating or operating a vessel, he may, without compulsion, take a sample of the person's blood and analyze it or cause it to be analyzed for alcohol or drug content and he is not thereby liable for any damages to the person from whom the sample of blood was taken except damages arising out of negligence in procedures used in taking the blood.

2 Where a duly qualified medical practitioner has taken a sample of blood and analyzed it or caused it to be analyzed for alcohol or drug content, if he or the person who analyzed the blood discloses the name of the person from whom the sample of blood was taken and the results of the analysis, neither the duly qualified medical practitioner nor the person who analyzed the blood is liable in damages by reason of the disclosure.

The County Court Judge held that the Crown had failed to establish that the physician who took the sample had the reasonable and probable grounds required by the Act and therefore held the taking illegal. That holding has not been challenged before this Court. Further, it seems to me to be doubtful that provincial legislation such as The Blood Test Act could authorize the taking of a blood sample for the purposes of a prosecution under the Criminal Code , because s. 237(2) of the Code provided at the relevant time:

237. ...

(2) No person is required to give a sample of blood, urine or other bodily substance for chemical analysis for the purposes of this section except breath as required under section 234.1, 235 or 240.1, and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible nor shall such a failure or refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

For these reasons, the Crown has conceded in this Court that the taking of the appellant's blood without his consent was an unreasonable search that violated the appellant's rights under s. 8 of the Canadian Charter of Rights and Freedoms . It is thus not necessary for the disposition of this appeal to decide whether the taking of blood from a person's body is a search or rather a seizure. I should add that s. 238(3)(b) of the Code now authorizes the taking of a blood sample in these circumstances. The only issue to be determined in this appeal is whether the admission in the proceedings against the appellant of this evidence which was obtained as a result of a violation of the Charter would bring the administration of justice into disrepute. If so then the evidence must be excluded and the appellant's acquittal restored. If not, he stands convicted.

Section 24(2) of the Charter reads:

24. ...

(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.

It is to be noted that the section directs the judge in coming to his decision to have "regard to all the circumstances". Those circumstances are simple and as follows. The appellant was injured in a single vehicle accident and was transported to hospital. Constable Parent of the R.C.M.P. attended at the accident scene and noticed a case of beer. He asked his colleague Constable Esayenko to attend the hospital and get a sample of blood from the appellant. Constable Esayenko found the appellant lying on a hospital bed in an incoherent and delirious state. He noted a strong odour of liquor on the appellant's breath. He asked the attending physician to take a blood sample and she agreed to do so. The blood sample was not required for medical purposes and the appellant did not consent to the taking of the blood sample.

Judgment in the case of R. v. Collins, [1987] 1 S.C.R. 265, was handed down by this Court on April 9, 1987. In that case this Court addressed the nature of the dynamics involved in making a determination under s. 24(2) and set out the various factors to be considered. I am, in this judgment, guided by what I said in that case. In that regard I consider this unreasonable search to be a very serious one. First, a violation of the sanctity of a person's body is much more serious than that of his office or even of his home. Secondly, it was wilful and deliberate, and there is no suggestion here that the police acted inadvertently or in good faith, as in, to give examples, the cases of R. v. Hamill, [1987] 1 S.C.R. 301, and R. v. Sieben, [1987] 1 S.C.R. 295, two decisions handed down the same day as the decision in Collins. Quite the contrary. They took advantage of the appellant's unconsciousness to obtain evidence which they had no right to obtain from him without his consent had he been conscious. The effect of their conduct was to conscript the appellant against himself. I am not unmindful of the fact that the police officers indeed had ample reasonable and probable grounds to believe that the appellant had committed the offence, though the County Court Judge held that the Crown failed to establish that the physician had such grounds. Nevertheless, given the seriousness of the violation and the clear provisions of the Criminal Code as it then stood, I am satisfied that the admission of the blood sample to convict the appellant would bring the administration of justice into disrepute.

I would allow this appeal, quash the conviction entered by the Court of Appeal and restore the acquittal pronounced by Judge Glowacki of the County Court of Selkirk.