Oct 15, 2016

Summary of R v McDougall

R v McDougall, 2013 SKQB 358 (CanLII)
Criminal Law – Driving over .08 Causing Death – Blood Demand
Criminal Law – ASD Demand – Reasonable Suspicion – Forthwith
Constitutional Law – Charter of Rights – Section 10 – Right to Counsel – Change in Jeopardy

The accused was the driver in a motor vehicle that entered a river. Two passengers drowned. The accused had been driving around checking water levels with his friends. They stopped and had a few drinks. When the vehicle went into the river, the accused ran to a nearby farmyard and sought help. The RCMP arrived about 22 minutes after receiving the dispatch call. Upon arrival, the officer observed firefighters at the scene searching for the passengers. He left the scene and went to speak with the driver, who was being attended to by EMS at the farmyard. The accused was in the ambulance when the officer arrived. The officer observed that the accused spoke clearly, but his eyes were red and his breath smelled of alcohol. The accused admitted that he had been drinking. The officer made an ASD demand. The accused made five attempts to blow into the ASD where insufficient samples were obtained. After the EMS attendant raised the accused’s stretcher, a suitable sample was obtained, which was a fail. The officer decided not to make a breath demand or blood demand at that time because the accused was on his way to the hospital in ambulance. The officer contacted another officer to attend the hospital and make either a breath or blood demand based on his observations at scene. The second officer subsequently made a blood demand because he believed that the accused’s stay in hospital was going to be lengthy. The accused was advised of his right to counsel in the ambulance. He indicated that he would worry about calling a lawyer later. At hospital, the accused again indicated that he would call a lawyer later. The accused was initially arrested for impaired driving. He was not advised that he could be charged with impaired driving causing death until he was taken from the hospital to the detachment. The officer that had been on scene indicated that he did not know the status of the passengers at the time he arrested the accused. The officer at the hospital indicated that at the time he made the blood demand, he did not know what had happened to the passengers, but as hours passed it became apparent that they may have died. The accused argued that the officer lacked reasonable grounds to make an ASD demand, that the ASD demand was not made forthwith, that the blood demand was improperly made and that the Crown should not be entitled to rely on evidence obtained from blood samples taken as part of the accused’s medical treatment that had been obtained pursuant to a warrant because the RCMP had improperly asked the hospital staff to preserve the evidence until a warrant could be obtained. The accused also argued that his s. 10(b) rights had been breached because he was not advised that he could be charged with causing the death of his passengers before the samples were obtained. The accused was not charged with the death of the two passengers until more than a year after the offence.
HELD: The ASD sample was taken forthwith. Until the ASD demand was made the accused was not detained. The officer had spent about 10 minutes at the river assessing the scene before he drove to the accused’s location and observed his condition. There was no evidence that the ambulance was delayed because of the officer’s actions and it was clear that the accused was not going anywhere because of his medical condition. The officer took seven minutes before he made the ASD demand, which was reasonable given the chaotic scene that confronted the officer at the scene of the accident and the need to obtain information about what had happened before the ASD demand could be made. The bulk of the evidence suggests that the accident occurred within three hours of the ASD demand. The devastating circumstances of the accident make it more likely that the accused sought help as quickly as possible. The officer had reasonable grounds to make the ASD demand because it was reasonable for the officer to suspect that the accused had been driving within the previous three hours. The officer made the decision to make a breath or blood demand, but did not make the blood demand until 40 minutes later. It was reasonable for the officer who made the demand to believe that the accident had occurred within two hours of the dispatch call. In the circumstances, the officer at the hospital had grounds to make the blood demand. The officer at the hospital made the blood demand one hour after the accused failed the ASD. The delay was not unreasonable. The accused had been in a serious motor vehicle accident and his condition was uncertain. The evidence from the doctor establishes that he was in the hospital receiving or waiting for medical assistance. The officer made the decision to demand a blood sample was soon as practicable in the circumstances. The Crown has also established that it was impracticable to obtain a breath sample. The officer who made the blood demand did not know when the accused would be released from the hospital. In the circumstances, it was reasonable for the officer to believe that it was not practicable to make a breath demand on the accused. It was not practicable to bring the Intoxilizer to the hospital. The Crown indicated that it did not intend to rely on the presumptions in s. 258 of the Criminal Code, making the use of an approved container for the blood irrelevant. The blood samples obtained under warrant were admissible. The evidence from the doctor establishes that there was a medical reason relating to the treatment of the accused that necessitated taking blood samples. The hospital staff are entitled to release information to the RCMP verifying that blood samples exist under The Health Information Protection Regulations. The hospital was entitled to maintain the blood samples requested by the RCMP until a warrant was authorized. There was no breach of the accused’s right to counsel. The RCMP had no better information than the accused about the status of the passengers. The accused knew he had been in a serious motor vehicle accident and that his two passengers were missing. The accused was not misled by the police and there is no requirement under s. 10(a) that the police advise the accused about a charge that might arise if certain events unfold. The applications by the accused were all dismissed.