R. v. Colarusso [1994] 1 S.C.R. 20: Unreasonable search and seizure -- Coroners Act permitting warrantless seizures by coroners -- Validity of legislation -- Whether investigatory provisions of Coroners Act intra vires province

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.

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