Evidence – Admissibility – Medical Records – Blood Alcohol Content
Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Level Exceeding .08 – Evidence – Blood Alcohol Content
Criminal Law – Procedure – Production Order – Application to Set Aside
The accused was charged with driving while his blood alcohol content exceeded the legal limit contrary to ss. 255(1), 253(1)(a) and 253(1)(b) of the Criminal Code. Before trial, the defence had brought this application to set aside the production order for the medical records of the accused regarding his hospital treatment after a collision. The charge and the application arose as a result of the accused being involved in a serious vehicle accident, and when the RCMP officer arrived at the scene, an ambulance had already arrived. The officer spoke to the accused, who was still in the truck, and the officer noted that the accused’s breath smelled of alcohol and that there were beer cans in the cab of the truck. As a result, the officer suspected that the accused had been drinking but could not follow regular procedure because the accused had to be taken to hospital. The office was under the impression that the accused had had a passenger with him at the time of the crash, so he could not leave the scene of the accident until he was satisfied that the accused was the only victim. He drove to the hospital in Regina as soon as possible and attempted to follow the investigation. He arrested the accused and gave him the required Charter information and police warning but could not make a breath demand or a blood demand because nurses told him to leave the accused because they were dealing with his critical injuries. Knowing that he was beyond the three-hour time limit prescribed by s. 254(3) of the Code, when the officer learned that a blood sample had been taken from the accused when he arrived at the hospital, he recommended in his report that a production order be obtained so that the hospital records would be made available. The police did obtain both the production order and the hospital records, which included a biochemistry report that showed he had 64.9 mmol/L of ethanol in his blood. The defence took the position that the production order should be set aside as the officer could and should have made a demand of the accused to provide blood samples pursuant to s. 254(3) of the Criminal Code. Had the required blood samples been taken, the defence would have had the opportunity to have one of the blood samples analyzed independently of the Crown. As a result, the defence argued that the accused’s defence was prejudiced.
HELD: The court dismissed the application. It found that the production order had not caused any prejudice to the accused. The police application for a production order of the accused’s hospital records was not done to bypass the procedures required under s. 254(3) of the Criminal Code for a blood sample. Rather, the police having exhausted one option, employed another. Whether the biochemistry report should be admitted into evidence at the trial would be left to be considered at the trial proper.