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APPEALS - Grounds - Insufficient reasons

Tuesday, April 30, 2019 @ 8:38 AM  


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Appeal by the Crown from the acquittal of Campbell on charges of impaired driving causing death and driving while her blood alcohol level was over .08 causing death. The respondent’s vehicle collided head on with another vehicle that was travelling in the wrong direction. The occupant of the second vehicle died. Urine and blood samples of the respondent were taken at the hospital, which revealed the respondent’s blood alcohol level was over the legal limit at the time of the collision. An officer testified he overheard a nurse indicate the respondent’s urine results were over the legal limit. The respondent’s father testified he heard the officer ask for the results. The trial judge found the officer asked for the results. He excluded the respondent’s medical records and urine and blood samples as well as statements she made to the police on the basis the evidence was obtained in breach of sections 7 and 8 of the Canadian Charter of Rights and Freedoms (Charter). He found the nurses acted as police agents when they took the respondent’s blood without her consent.

HELD: Appeal dismissed. The trial judge provided sufficient reasons for his finding that the officer asked the nurse for the respondent’s urine results. The factors supporting and detracting from the credibility and reliability of the witnesses on the issue were apparent on the record. There was no evidence to support the trial judge’s conclusion that the nurses were acting as police agents when they took the respondent’s blood. It was impossible to know what weight he gave that factor. Conducting the s. 24(2) Charter analysis afresh, the Charter-infringing state conduct was at the serious end of the fault spectrum and the impact of the breach on the respondent’s informational privacy interest was significant. The balance tipped toward exclusion of the evidence and was not outweighed by society’s interest in an adjudication on the merits. Public confidence in the administration of justice was best served through the exclusion of the evidence.

R. v. Campbell, [2019] O.J. No. 1638, Ontario Court of Appeal, D. Watt, K.M. van Rensburg and D.M. Brown JJ.A., April 3, 2019. Digest No. TLD-April292019005