R. v. Knox [1996] 3 S.C.R. 1996: -- Blood test -- Consent -- Demand for blood test made of suspected impaired driver -- Standard demand not mentioning requirements that assurances be made that the blood samples will only be taken by a qualified medical practitioner and that taking the samples would neither harm the suspect's health nor endanger the suspect's life -- Whether the driver's consent was an essential element to be proved by the Crown in obtaining the driver's blood sample

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law -- Blood test -- Consent -- Demand for blood test made of suspected impaired driver -- Standard demand not mentioning requirements that assurances be made that the blood samples will only be taken by a qualified medical practitioner and that taking the samples would neither harm the suspect's health nor endanger the suspect's life -- Whether the driver's consent was an essential element to be proved by the Crown in obtaining the driver's blood sample pursuant to s. 254(3) of the Criminal Code -- Whether blood sample demand, absent the assurances, complied with the requirements of s. 254(4) of the Code -- If not, what were the ramifications? --Canadian Charter of Rights and Freedoms, ss. 7, 8, 24(2) -- Criminal Code, R.S.C., 1985, c. C-46, ss. 253(b), 254(3), (4), (5), 255(1), (2), 691(2)(a).

The police officer in charge of the situation following a serious traffic accident formed the opinion that the accused was impaired and demanded, pursuant to s. 254(3) of the Criminal Code, that he provide a blood sample. (The accused was at hospital and the nearest breathalyzer machine was some distance away.) The standard demand, which was read to the accused from a printed card, made no mention of the s. 254(4) requirements (detailed in R. v. Green) that assurances be made that the blood samples would only be taken by a qualified medical practitioner who was satisfied that taking the samples would neither harm the suspect's health nor endanger the suspect's life. Having found that the accused did not give his consent to the taking of the blood sample, the trial judge excluded the blood alcohol evidence. He subsequently acquitted the accused of two counts of causing bodily harm as a result of operating a motor vehicle while impaired (contrary to s. 255(2) of the Code) and one count of driving with an alcohol level above the legal limit (contrary to s. 255(1)). The Court of Appeal reversed the acquittals and ordered a new trial. This appeal, accordingly, is of right. At issue here is: (1) whether the accused's consent was an essential element to be proved by the Crown in obtaining the accused's blood sample pursuant to s. 254(3) of the Code; and (2) whether the standard blood sample demand read here met the requirements of s. 254(4), and if not, what were the ramifications.

Held: The appeal should be dismissed.

The Crown is not required to prove the consent of the accused to the giving of a blood sample under s. 254(3) of the Code. This provision is mandatory not consensual. A person to whom a demand is made is "required to provide" a blood sample and anyone who "refuses to comply" with a blood sample demand commits a separate offence (s. 254(5)). The distinction between the meaning of "compliance" and the meaning of "consent" is real. To consent means to agree and to cooperate and connotes a decision to allow the police to do something which they could not otherwise do. Compliance has a more subtle meaning involving the failure to object. Acquiescence and compliance signal only a failure to object; they do not constitute consent. The current standard merely requires the Crown to establish that there were reasonable and probable grounds to believe that the accused 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. However, a person cannot be forced, physically or otherwise, to submit to a blood sample. Moreover, compliance can be vitiated by certain circumstances such as those involving trickery.

The standard demand form read here was deficient in that it did not make the s. 254(4) assurances that the blood samples would only be taken by a qualified medical practitioner who was satisfied that taking the samples would neither harm the suspect's health nor endanger the suspect's life. The taking of the sample absent these assurances would contravene ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. If a demand is not validly made in this manner, the accused cannot be convicted under s. 254(5) for having failed to comply with this demand.

The principles in Green apply where a blood sample has actually been obtained. The logic of s. 254(4) of the Code is concerned with the adequacy of the demand itself, and not with 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.

The issue to be addressed given a Charter violation is whether the admission of the blood sample results could "bring the administration of justice into disrepute" under s. 24(2) of the Charter. The order for a new trial was appropriate since this determination should be left for the trial court. However, a significant distinction between compliance and refusal exists when applying s. 24(2) of the Charter. If an accused actually complies with a blood sample demand, in the absence of the medical assurances of s. 254(4), adducing the evidence of the blood sample is unlikely to "bring the administration of justice into disrepute". This is particularly true when the conditions stipulated by the provision were in fact met. The administration of justice is not harmed by the deficient demand when an accused actually complies under these circumstances because a proper demand under s. 254(4) would only serve to further encourage compliance.

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