R. v. Knox

The Chief Justice -- This appeal involves the interpretation of ss. 254(3) , (4) and (5) of the Criminal Code , R.S.C., 1985, c. C-46 . These provisions set out the circumstances in which a peace officer can require a motorist to provide a blood sample for the purposes of determining blood alcohol concentration under s. 253(b) of the Code. As I confirmed at the hearing, the constitutionality of ss. 254(3), (4) and (5) themselves is not at issue.

The appellant, William Knox, was charged and subsequently acquitted on two counts of causing bodily harm as a result of operating a motor vehicle while impaired under s. 255(2) of the Code, and one count of operating a motor vehicle with an alcohol level in excess of 80 mg per 100 ml of blood under ss. 253(b) and 255(1) of the Code. The charges stemmed from a motor vehicle accident which occurred on June 22, 1991, in which the appellant had attempted to pass the car in front of him, only to crash into it. The other driver had slowed down and was in the process of making a left turn when the accident occurred. Two of the five passengers in the other car were seriously injured.

At the hospital where the appellant and the other injured parties were taken, the police constable in charge of the situation formed the opinion that the appellant was impaired. Because it would have taken approximately 45 minutes to transport the appellant to the nearest breathalyzer machine, the police constable decided to make a blood sample demand pursuant to s. 254(3) of the Code. The constable read to the appellant the following demand printed on a card issued by the Sûreté du Québec:

I have reasonable ground [sic] to believe that you are driving or have the care or control of a motor vehicle, a vessel or an aircraft while you were -- your ability to drive is impaired or the portion of alcohol in your blood is over the limit prescribed by law. I demand that you accompany me to undergo - submit to a blood test, which will determine the proportion of alcohol in your blood. Refusal or failure to comply with this demand renders you reliable [sic] to criminal charges. You are entitled by law to be assisted by a counsel without delay. You may have resources [sic] to the services of a legal aid advocate or to your advocate, regardless of your financial resources.

Despite conflicting accounts of what subsequently took place, a blood sample was drawn from the appellant. The blood alcohol analysis later revealed a blood alcohol content of 302 mg per 100 ml of blood in one test, and 293 mg per 100 ml of blood in the other -- considerably greater concentrations than the legal limit of 80 mg per 100 ml of blood.

The appellant was acquitted at trial because the trial judge excluded the appellant’s blood alcohol evidence. Dagenais J. held that the blood sample was obtained without the appellant’s consent and thereby contravened s. 253(b) of the Code. On appeal, a unanimous panel of the Quebec Court of Appeal (Proulx, Fish and Deschamps JJ.A.) reversed the ruling of the trial judge and ordered a new trial: (1995), 39 C.R. (4th) 362. Proulx J.A. held that the trial judge had erred in finding that the prosecution was required to prove the “consent” of an accused before drawing a blood sample pursuant to s. 254(3) of the Code. Nonetheless, Proulx J.A. did find that the police constable’s demand for the appellant’s blood sample did not comply with the requirements of s. 254(4) of the Code as detailed by this Court in R. v. Green, [1992] 1 S.C.R. 614.

Because the Quebec Court of Appeal set aside an acquittal, the appellant now appeals that court’s judgment as of right, pursuant to s. 691(2)(a) of the Code.

There are two central issues on this appeal:

(i) was the consent of the appellant an essential element to be proved by the Crown in obtaining the appellant’s blood sample pursuant to s. 254(3) of the Criminal Code ?

(ii) did the standard blood sample demand of the Sûreté du Québec, as read by the police constable to the appellant prior to obtaining his blood sample, comply with the requirements of s. 254(4) of the Code? If not, what are the ramifications?

The other issues raised by the appellant lack merit, and in view of the reasons and result that follow, I decline to comment upon them.

Sections 254(3) , (4) and (5) of the Criminal Code provide as follows:

254. ...

(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding two hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable

(a) such samples of the person’s breath as in the opinion of a qualified technician, or

(b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person,

(i) the person may be incapable of providing a sample of his breath, or

(ii) it would be impracticable to obtain a sample of the person’s breath,

such samples of the person’s blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples

are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

(4) Samples of blood may only be taken from a person pursuant to a demand made by a peace officer under subsection (3) if the samples are taken by or under the direction of a qualified medical practitioner and the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the person.

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.

In my view, the Crown is clearly not required to prove the consent of the accused to the giving of a blood sample under s. 254(3) of the Code. The provision makes no reference to a requirement of consent. Instead, s. 254(3) states that a person to whom a demand is made is “require[d] ... to provide” a blood sample. Section 254(3) is mandatory not consensual. It is also to be noted that s. 254(5) states that anyone who “refuses to comply” with a blood sample demand has committed a separate offence.

The appellant is wrong to rely upon this Court’s decisions in R. v. Pohoretsky, [1987] 1 S.C.R. 945, and R. v. Dyment, [1988] 2 S.C.R. 417, in support of the view that a blood sample taken pursuant to s. 254(3) requires the consent of the person from whom the blood is drawn. In both of those cases, the blood samples at issue were seized at a time when the Code provided that an individual could not be required to provide blood samples. The provision read:

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 . . . and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible. . . . [Emphasis added.]

The only way the police could obtain a legal blood sample at that time was if an individual actually consented to providing one. However, between the time of the taking of the blood sample in Dyment and the hearing of that appeal, the blood sample provisions in the Code were amended, then s. 238. In fact, in his reasons in Dyment, La Forest J. acknowledged the legislative change. He wrote at p. 422:

The doctor did not obtain his patient's consent to obtain the blood sample. Mr. Dyment was not even aware of it as he was suffering from a concussion. I should note that at the time, under s. 237(2) of the Criminal Code , no person was required to give a sample of blood. Section 238(3), however, now provides that, where a peace officer believes on reasonable and probable grounds that a person has committed the offence of impaired driving, he may require him to provide blood samples. [Emphasis added.]

The distinction between the meaning of “compliance” and the meaning of “consent” is real. To consent means to actually agree and cooperate. Compliance has a more subtle meaning involving the failure to object. Doherty J.A. made this distinction in a holding of the Ontario Court of Appeal in R. v. Wills (1992), 7 O.R. (3d) 337, and I endorse it. In that case, the accused had consented to taking a second breathalyzer test despite registering a “warn” signal on the initial screening device. In distinguishing the meaning of “compliance” from that of “consent” for similar purposes under s. 8 of the Canadian Charter of Rights and Freedoms , Doherty J.A. wrote at p. 348:

Co-operation must . . . be distinguished from mere acquiescence in or compliance with a police request. True co-operation connotes a decision to allow the police to do something which they could not otherwise do. Acquiescence and compliance signal only a failure to object; they do not constitute consent.

Doherty J.A. made this distinction in order to emphasize that, in that case, consent, and not merely compliance, was required to validate an otherwise unreasonable search under s. 8 of the Charter .

Accordingly, the trial judge was wrong to interpret s. 254(3) to mean that the Crown has to obtain and later prove the appellant’s consent to properly take a blood sample from him. The amended standard merely requires the Crown to establish that there were reasonable and probable grounds to believe that the appellant had committed the offence of impaired driving, that it was impracticable to obtain a breathalyzer sample, and that a demand to obtain a blood sample was made.

Of course, none of these findings is meant to suggest that a person can be forced, physically or otherwise, to submit to a blood sample. A person can still refuse a demand for a blood sample, but s. 254(5) creates a distinct offence for doing so. As such, the blood sample regime of the Code effectively dovetails with the breathalyzer regime upon which this Court has previously expounded. Moreover, nothing suggests that compliance cannot be vitiated, should for example, the trier of fact conclude that the appellant was tricked into thinking that his or her blood sample was only being used for the medical purposes of his or her attending physician.

For these reasons, I find that the trial judge erred in excluding the results of the blood sample analysis because the Crown had failed to establish the appellant’s consent beyond a reasonable doubt. Consent plays no part in s. 254. The matter should be reconsidered by the trial court in light of the “compliance” standard.

The police constable who demanded blood from the appellant did so by reading to him the standard demand form of the Sûreté du Québec. I find that this standard demand form was deficient because it did not refer to the assurances in s. 254(4), as required by this Court in Green, supra.

In Green, this Court held that the demand for a blood sample made under s. 254(3) of the Code must include the assurances set out in s. 254(4), namely that: (a) the blood samples will only be taken by a qualified medical practitioner; and (b) the samples will only be taken if the qualified medical practitioner is satisfied that the taking of the samples would not endanger the health or life of the suspect. If a demand to a suspect is not validly made in this manner, the accused cannot be convicted under s. 254(5) for having failed to comply with this demand. As La Forest J. explained in writing for the Court in Green at p. 617:

This case raises the issue of whether a demand for blood samples by a peace officer pursuant to s. 254(3) must incorporate the assurances of s. 254(4) that the samples of blood will only be taken by or under the direction of a qualified medical practitioner and only if the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the patient. ... In my view it should. ... Parliament's purpose appears to be directed to putting to rest the fear that an improper procedure might be followed or that unqualified persons might conduct the procedure. The danger is that a person might be prompted to refuse to take the test on such grounds.

There is little doubt that the content of the police constable’s demand was legally deficient according to the principles set out in Green. On this point, I agree with Proulx J.A.’s conclusions for the Quebec Court of Appeal. He wrote at p. 372:

[translation]There remains the [ground of appeal], concerning which, in my opinion, the trial judge erred in law by concluding that, according to Green, ... the order given by the police officer complied with the requirements of section 254(4). Having read the warning given by the police officer, I must conclude that there was no evidence that the guarantees provided for were formulated. The police officer simply read a form, which, at the time, did not contain those elements. [Emphasis added.]

The standard demand form contains neither assurance from s. 254(4). As such, I find that the demand delivered by the police constable to the appellant did not satisfy the requirements of a valid blood sample demand under s. 254(3), and therefore the taking of the sample contravened ss. 7 and 8 of the Charter .

I also reject the trial judge’s determination that the principles in Green do not apply where a blood sample has actually been obtained. Although there is a significant distinction between compliance and refusal when applying s. 24(2) of the Charter , I find that Green applies equally to cases where the accused ultimately complied with a deficient demand. The logic of s. 254(4) of the Code is concerned with the adequacy of the demand itself, and not whether the accused actually complied with the request. The integrity of the blood sample regime requires the police to deliver a valid demand with the s. 254(4) assurances even if the accused would have complied with the demand in the absence of the medical assurances.

Of course, this leads to a crucial question: whether the results of the blood sample analysis can be used despite the Charter violation. Contrary to the appellant’s submission, the Quebec Court of Appeal did not err by ordering a new trial instead of rendering a verdict of acquittal. The issue that needs to be addressed is whether the admission of the blood sample results could “bring the administration of justice into disrepute” under s. 24(2) of the Charter . As I have said on previous occasions, this is a determination appropriately left for the trial court, and I leave this issue to be decided by it. Nevertheless, I might point out that if an accused actually complies with a blood sample demand, in the absence of the medical assurances of s. 254(4), I cannot conceive how adducing the evidence of the blood sample could “bring the administration of justice into disrepute”. This is particularly true when the conditions stipulated by the provision were in fact met. Subject to other considerations which are ultimately left to the trial court, the administration of justice is not harmed by the deficient demand when an accused actually complies under these circumstances. This is because a proper demand under s. 254(4) would only serve to encourage further compliance.

The appeal is dismissed. The Quebec Court of Appeal’s decision to reverse the appellant’s acquittal and order a new trial is upheld. The new trial is to be conducted in a manner consistent with these reasons.