Bad Blood? R v Culotta Addresses Admissibility of Admissibility of Blood Samples Obtained by Health Care Professionals
Often, the Supreme Court of Canada (“SCC”) issues reasons for their decisions without writing a lengthy judgment of its own. It is easy to overlook these cases as unimportant and inconsequential, as the SCC itself simply adopted the decision of a lower court. The recent case R v Culotta, 2019 SCC 33 [R v Culotta] is such a case. Nevertheless, it ought not to be ignored because of its implications on how a culmination of Charter breaches impacts the admissibility of evidence in criminal proceedings.
In R v Culotta, Ms. Culotta was charged with operating a vessel while intoxicated with an alleged blood alcohol content of over 80 mg of alcohol per 100 mL of blood, contrary to s. 255(2.1) of the Criminal Code. Ms. Culotta was the operator of a boat that crashed, leading to five passengers being injured, two seriously.
In this case, the SCC had little to say about the issues at hand. The majority adopted the decision of the majority of the Ontario Court of Appeal (“ONCA”) delivered in R v Culotta, 2018 ONCA 665 [R v Culotta, ONCA], while the dissenting SCC judges adopted the same dissent given at the ONCA. Though the decision of the SCC was short, its implications are potentially wide-ranging for a number of Charter provisions, engaging sections 8, 9, 10 and 24. Interestingly, the majority and dissent take vastly different positions with regards the severity of those breaches, especially when considering how those breaches related to evidence that might have otherwise been admissible had the breaches not occurred. This post is dedicated to exploring the nature and implications of the gap between the majority and minority opinions.
Ms. Culotta was boating with friends on a night with low visibility when their boat crashed, injuring five passengers. When police and paramedics arrived on the scene, the smell of alcohol was clear to an officer, who asked the group who was driving the boat. When the others identified Ms. Culotta as the driver, she admitted to having drank a small amount earlier that day. At this point the officer arrested her. The officer decided not to advise Ms. Culotta of her right to counsel immediately upon arrest.
Upon arrival at the hospital, the officer asked Ms. Culotta if she wished to speak to a lawyer. She replied that she would not, because her father had the name of their family’s lawyer. The police attempted to contact her father but were unsuccessful. At that point, the emergency room physician ordered a blood test for medical purposes, one of which was to measure Ms. Culotta’s blood-alcohol level. While the lab technician was preparing to draw blood, the officer told the technician “he hoped to seal some of the blood for police use” (R v Culotta, ONCA, para 10). No one sought Ms. Culotta’s consent for the collection of blood for police purposes.
The police took a statement from Ms. Culotta and eventually released her, informing her that the investigation would be ongoing. The police spoke to additional witnesses and were able to obtain warrants for both the vials of blood and medical records, which show that Ms. Culotta’s blood contained higher than the legal limit of alcohol. They subsequently arrested her.
There were a number of issues regarding the conduct of the police and whether it constituted a substantial enough breach to warrant the exclusion evidence. In what follows, I focus largely on the section 8 and 10(b) Charter issues, which ask whether Ms. Culotta’s right to counsel was exercised and whether the police interference with the lab technician while obtaining blood samples constituted a substantial enough breach that all medical evidence should be excluded.
Both the majority and dissenting judges of the ONCA agreed that the failure to caution and inform Ms. Culotta of her right to counsel immediately would ordinarily constitute a breach of her Charter rights. However, because the delay between her arrest and the reading of her rights was quite brief, no substantial section 9 breach was made out (R v Culotta, ONCA, para 35). The ONCA also agreed that there was no breach when police spoke to the parties in the ambulance, because they were not being detained at the time (R v Culotta, ONCA, para 19. As such, the major issue of focus for the ONCA and SCC was whether the blood sample, taken for medical reasons at the hospital, was admissible as evidence at Ms. Culotta’s trial.
The Majority’s Decision
At the SCC, the majority of the court adopted the view of the ONCA, which agreed with the trial judge that statements made by Ms. Culotta to police after the blood samples were taken should indeed be admissible, because the Crown was able to establish that the statements were made voluntarily. The majority also found that admitting medical records that were made at the hospital as evidence was appropriate, because the records were obtained with a warrant. What became an issue later for the dissenting judges at both the ONCA and SCC was whether there was an appropriate foundation for the warrant, and whether the police interference with the lab technician constituted a constitutional breach of sections 8 and 10(b).
The Right to Counsel
Section 10(b) of the Charter requires that police inform individuals of their right to speak with a lawyer, and provide them with an opportunity to do so immediately upon arrest. Until the right to counsel has been either exercised or rejected by the individual, the police are required to suspend their investigation. The majority at the ONCA relied on the distinction made in R v Suberu (2009 SCC 33) that the right to counsel engages both an informational and an implementational duty on the police: Police must both inform individuals of their right to counsel and provide them with the opportunity to exercise that right. Although Ms. Culotta was not informed immediately upon arrest of her right to counsel, the delay was brief and ultimately inconsequential.
However, whether the police had discharged their duties to inform Ms. Culotta when she said she would speak with her family lawyer was a central issue in the case, and had substantial bearing on the severity of the conduct thereafter. Because Ms. Culotta did not exercise her right to speak to a lawyer when police provided her with that opportunity to do so, the police officers were under no obligation to suspend the investigation. Therefore, the subsequent investigation undertaken by the police was not conducted in breach of Ms. Culotta’s section 10(b) Charter rights (R v Culotta, ONCA, para 39).
The Blood Samples / Medical Record Evidence
A medical professional is understood to be acting as an agent of the police when they disclose information to police or act at the request of police without a valid warrant. In this case, the argument made by Ms. Culotta was that the technician acted as an agent of the police when they allegedly drew more blood than necessary in order to set some aside for police to collect later. Ms. Culotta also alleged that the police acted inappropriately when they spoke to the lab technician and informed them that police would be seeking to collect samples.
The majority decisions at both the SCC and the ONCA rejected Ms. Culotta’s argument that the blood technician was acting as an agent of the state by taking vials of blood after an alleged breach of her section 10(b) rights to speak to counsel (R v Culotta, ONCA, para 50). The ONCA majority relied on the fact that the emergency room physician had initially requested both that the blood samples be taken and that those samples be tested for blood-alcohol content (R v Culotta, ONCA, para 51). Ultimately, the collection of bodily samples is a serious enough breach of bodily integrity such that it warrants the exclusion of the samples themselves, but not the medical records kept by the hospital.
Availability of Remedy under s.24(2) of the Charter
If police breach an individual’s Charter rights during the course of an investigation, arrest, or detention, the court may exclude the evidence obtained pursuant to the breach as a remedy. When the court turns to consider the totality of the breaches, they are concerned with the seriousness of the breach, the impact of the breach on the individual’s rights, and the social interest in having the case adjudicated on its merits. When considering the first two factors, the majority was concerned that the police interference with the lab technician’s collection of blood samples was a serious breach, which warrants the exclusion of the blood samples. Ultimately, however, the majority concluded that the other breaches were not serious (R v Culotta, ONCA, para 65). On the level of impact the breaches had on Ms. Culotta, the majority found that the impacts were low, because in most cases, her rights were only breached temporarily as a result of the circumstances.
The majority also found that because impaired operation of motor vehicles causing bodily harm is a serious offence and there is a substantial public interest in successfully prosecuting cases of “over 80” operation of a vessel, the rest of the evidence should not be excluded. Furthermore, because the police errors were mostly non-serious and were attributed to the inexperience of the officer, the majority found that there was no pressing concern about systemic police misconduct emerging from the facts at hand (R v Culotta, ONCA, paras 66-67).
The Blood Samples
Justices Abella and Martin of the SCC took the position of Justice Pardu of the ONCA in dissent. Justice Pardu’s dissent highlighted the seriousness of police interference with medical samples and lab technicians at a hospital. Although the samples were later obtained by warrant and were not seized by police at the hospital, Justice Pardu was seriously concerned with what he described as the police “co-opting a lab technician” into taking blood samples (R v Culotta, ONCA, para 71).
It is important to note that there is conflicting evidence here as to whether the technician collected more blood for additional tests or for police use, but nevertheless the police involvement in the process at all is problematic enough that the evidence should be excluded. For Justice Pardu, police interference with a medical practitioner for the purpose of collecting bodily samples was a serious affront to human dignity and can damage the important relationship of trust between individuals and medical practitioners. Furthermore, even though there is no direct causal connection between the physical samples themselves and the documentation about the blood-alcohol content provided in the medical records, Justice Pardu found that the entirety of the medical evidence ought to be excluded because of the seriousness of the breach involved with collecting the samples in the first place (R v Culotta, ONCA, para 95).
The Right to Counsel
Unlike the majority findings, the dissenting judges found that Ms. Culotta did want to exercise her right to counsel, and her comments to the police indicated instead that she wished to speak to a specific lawyer, whose name she would be getting once her father arrived at the hospital. By making this clear to the police that she wanted to speak to a specific lawyer whose name she would be getting shortly, Ms. Culotta had made it clear to police that she wished to speak to a lawyer. Even though Ms. Culotta had not yet spoken to a lawyer, despite expressing a desire to speak to counsel, the police wrongfully continued their investigation.
Availability of Remedy under Section 24(2) of the Charter
The dissenting judges viewed the police communication with the lab technician as a serious breach by the police. According to the dissent, by speaking to the lab technicians, the police inserted themselves into an accused person’s medical care, which was considered by the dissent to be a serious overstep by police in the course of an investigation. The fact that this violation was committed after Ms. Culotta requested that she be able to speak to counsel only heightened the seriousness of the breach. Because of the seriousness of the breach and the potential for abuse if evidence produced as a result of police interference with medical staff, the dissent concluded that the blood samples themselves and the medical evidence should be excluded.
Although the dissenting judges acknowledged that the police officer was not experienced, they concluded that that fact alone should not justify the misconduct, because the violations were serious and there was evidence presented that the practice of police co-opting the services of lab technicians was commonplace at that particular hospital. By allowing the police to co-opt a lab technician to collect additional blood samples “is an invasion of the appellant’s bodily integrity and dignity of the utmost seriousness” (R v Culotta, ONCA, para 91), as an accused person is especially vulnerable when they are receiving medical care.
The dissenting judges were not concerned with the impact their evidentiary ruling may have on deciding the case on its merits, because there was still evidence available for the Crown to establish the elements of impaired operation, as opposed to operation “over 80” of a vessel. Furthermore, the purpose of the exclusion was to preserve the long term repute of the administration of justice, which could be harmed if medical practitioners are co-opted by police for the purposes of collecting evidence for police investigations.
While the determination of this case appears to turn largely on its facts, the implications of the decision have far-reaching potential. Although the majority decisions are for the most part unconcerned with the police speaking to health care professionals in the course of providing medical care to an accused person, admitting any medical evidence runs the risk of permitting more serious interference. Although it is important for cases to be decided on their merits, the dissent was right to point out that the consequences for the reputation of the justice system are much more far-reaching when medical evidence may be admitted when the police request the assistance of medical professionals in obtaining that evidence.
The consequences of cumulative breaches and the comments about police inexperience are also salient and have the potential to impact future cases and law enforcement practices. The majority was very forgiving of the police errors because of the inexperience of the officer, whereas the dissent does not perceive the inexperience as a factor that suggests that the evidence should be admitted. Instead, the dissent pointed out the routine nature of the hospital collecting and storing samples of blood for police, and the presence of senior officers on the scene who were available to assist and provide guidance.
What becomes clear in this case is the ultimate weakness in relying so heavily on contextual factors in both determining when a Charter breach occurs and when a remedy under section 24(2) of the Charter applies. Allowing judges to use their discretion and weigh different factors and pieces of evidence in context sounds intuitively appealing, but in this case it is clear that reasonable people can disagree on the interpretation of facts and evidence and come to very different conclusions based on the same scenario. For example, the court here could not agree on whether the police co-opted the lab technicians. Because there are no strict limits or tests to be applied, the results of cases can vary when different judges look at the case.
A diversity of opinions on appellate-level of courts is surely a good thing. But when judges can come to such different conclusions when evaluating the same evidence, it becomes difficult for law enforcement and citizens to understand what the limits on acceptable police conduct are and what kinds of remedies one might expect if the police violate one’s Charter rights.
Though the SCC has little to say about this case over and above the ONCA decision, the implications of admitting evidence where the police have interacted with medical professionals who are treating an accused person sets a dangerous precedent. However, it is clear that the court still maintains that there are competing interests at the section 24(2) analysis that can provide a remedy. Instead of a categorical denial of the admission of such evidence, the majority preferred an approach that employed a more contextual weighing of factors. While this approach seems intuitively favourable, it also does not make the issues clear going forward when trying to understand what kinds of police conduct are unacceptable and when remedies might reasonably be available.
What is interesting about this decision is the limits of a strictly contextual analysis when determining the admissibility of evidence upon a Charter breach by police officers. When the remedies available under section 24(2) are up to the discretion of judges, it is possible that different judges will have radically different interpretations of the same situation. In this case, even the question of whether or not there was a substantial enough breach to entitle the complainant to a remedy under section 24(2) was matter up to the interpretation of judges. While the interpretation of judges is a cornerstone of our legal system, when our Charter-protected rights are implicated, it should be concerning to both police and citizens that the outcomes of Charter breaches depend on a contextual weighing of factors on which reasonable people could disagree.