nan 1995 S.B. No.3341 IN THE SUPREME COURT OF NOVA SCOTIA ALLEN WADE SPIDELL and HER MAJESTY THE QUEEN DECISION BEFORE: THE HONOURABLE JUSTICE HIRAM J. CARVER BRIEFS FILED: APPELLANT'S BRIEF BY DECEMBER 31, 1995 RESPONDENT'S BRIEF BY JANUARY 15, 1996 REPLY BY JANUARY 29, 1996 WRITTEN DECISION: FEBRUARY 16, 1996 CHARGE: SECTION 254(5) C.C.C. COUNSEL: MARK DEMPSEY, FOR THE APPELLANT; ANTHONY W. BROWN, FOR THE RESPONDENT. This is an appeal by the appellant, Allen Wade Spidell, against a decision of The Honourable Judge Anne E. Crawford dated October 24, 1995 wherein she convicted the appellant of an offence that: "At or near Auburndale, in the County of Lunenburg, Province of Nova Scotia, did unlawfully, without reasonable excuse, refuse to comply with the demand made to him by Constable Gary Jonathan White, Peace Officer, to provide then or as soon thereafter as is practicable, samples of his blood as in the opinion of qualified medical practitioner were necessary to enable proper analysis to be made, in order to determine the concentration, if any, of alcohol in his blood, contrary to Section 254(5) of the Criminal Code of Canada." FACTS: On February 13, 1995 at approximately 4:00 p.m. the appellant went to the Emergency Department of the South Shore Regional Hospital for treatment for injuries received in single motor vehicle accident earlier that day. Dr. Kydd met the appellant at approximately 4:15 p.m. while he was reclining in one of the observation beds. At this time through questioning the appellant told Dr. Kydd he had been drinking and that he had been in motor vehicle accident which had occurred one half to one hour prior to being in the Emergency Department. Dr. Kydd had asked him if he had been drinking and when the accident had happened as this information might be important to the treatment or any prescription he might give. At this point, Dr. Kydd reported the accident to the R.C.M.P. because he felt he was obliged to report accidents that had not been reported. Mr. Spidell had not been prior patient of Dr. Kydd. When Constable White arrived at the hospital in response to the telephone call, Dr. Kydd informed him the appellant had told him he had been drinking, the accident had not previously been reported and that the accident had occurred half hour to one hour prior to Dr Kydd seeing him. Dr. Kydd also told Constable White he had noted Mr. Spidell stagger when he came to the hospital. Constable White then met with Mr. Spidell and having formed the opinion Mr. Spidell's ability to operate motor vehicle was impaired by alcohol, Constable White then read demand for blood sample to Mr. Spidell. Mr. Spidell made no reply. Dr. Kydd attempted to take blood sample from the appellant. At this point the appellant refused to give sample and asked to contact Mr. Dempsey. He was advised Mr. Dempsey was away for couple of days. When he was advised there were two other lawyers available in Mr. Dempsey's stead he decided not to speak to them. At this time he refused to supply sample of blood. He was then charged with refusal under S.254(2) of the Criminal Code. Upon the request of the police officers, Dr. Kydd later prepared written summary of the events in outpatients and mailed it to their office. Dr. Kydd had not obtained the consent of the appellant to release to the police this or any other information mentioned above. It is to be noted that the written summary did not form an essential or any part of this case of refusal. ISSUES: Did the trial judge err when she found the appellant's rights under Section7 and 8 of the Charter had not been breached? The trial judge, after reviewing R. v. Dersh 1993 CanLII 32 (SCC), [1993] S.C.R. 768, 85 C.C.C. (3d)1, 25 C.R. (4th) 88, 48 M.V.R. (2d) 161 found the information which Dr. Kydd had obtained was gathered solely for medical purposes and that he was not, up to that time, an agent of the state. She therefore concluded, following Dersh supra Dr. Kydd's actions were not subject to the Charter. She then went on to comment: "However, unlike Dersh and Dyment 1988 CanLII 10 (SCC), [1988] S.C.R. 417, 45 C.C.C. (3d) 244, 66 C.R. (3d) 348, the present case does not involve seizure of bodily substances, even by analogy. The police required no warrant to act upon the information they received from Dr. Kydd, whether or not Dr. Kydd was right to give it. therefore find that in the present case the police officer acting upon the information provided to him by Dr. Kydd did not violate the defendant's s.8 Charter right." This case is substantially different from the case of Dersh, supra, even if one accepts Dr. Kydd may have breached his duty of confidentiality to his patient. have some concern whether in fact in this case Dr. Kydd breached his duty of confidentiality. In the present case, Dr. Kydd phoned the police and gave them certain information. It was upon this information the officer formed his grounds for giving the blood demand which formed the essence of this charge of refusal. The police had not been in contact with the appellant before they received the information from Dr. Kydd. Dr. Kydd was at no time when he called the police acting as their agent, nor did they request anything of him before the demand and the refusal. In the Dersh case, supra after being involved in an accident on October 7, 1987 when the accused was taken to the hospital, blood sample was taken by the doctor for medical purposes while the accused was unconscious, contrary to an explicit refusal by the accused to provide blood sample under any circumstances. In that case, the police officer who had accompanied the accused to the hospital had asked him to provide blood sample. This request was refused. In response to written request by police, the doctor prepared medical report on October 30, 1987. That report included the results of the blood alcohol tests from the first blood sample and diagnosis the appellant was intoxicated at the time of being treated in the emergency department. Justice Major held the provision to the police by Dr. Gilbert of specific medical information about the appellant without his consent violated Dr. Gilbert's common law duty of confidentiality to the appellant. He went on to hold the obtaining of that information by the police in the circumstances of that case was analogous to search and seizure within the meaning of Section of the Charter. It is here where the difference arises between this case and Dersh supra. Here, the obtaining of the information from Dr. Kydd as the basis of formulating the demand is not analogous to a search and seizure within the meaning of Section 8 of the Charter. In Dersh there were actions analogous to search and seizure. I therefore find the trial judge did not err when she found the appellant's rights under Section 8 of the Charter were not violated. I also find the trial judge did not err when she found the appellant's right under Section 7 were not violated. I therefore dismiss the appeal. direct the appellant pay costs to the Crown in the amount of $300.00 by paying same to the Clerk of the Crown on or before March 1, 1996.
This was an appeal from a trial court decision questioning whether the trial judge erred in determining that the appellant's rights under s.7 and s.8 of the Charter had not been violated. When man involved in an accident checked himself into hospital, the attending physician informed the RCMP of the accident and an RCMP officer came to the hospital. As the appellant had indicated to the physician that he had been drinking, the RCMP constable read demand for blood sample, which the attending physician attempted to obtain. The appellant refused and asked to speak to his lawyer. Unable to contact lawyer, the appellant refused to supply blood sample and was charged with refusal under s. 254(2) of the Criminal Code. The trial judge had held that as the physician attempted to obtain sample for medical purposes, he was not acting in the capacity of agent of the state, and his actions were not subject to the Charter. Dismissing the appeal, that while there may have been some issues of breach of confidentiality, the physician's actions were not analogous to search and seizure within s.8 of the Charter. The trial judge did not err in determining that the appellant's rights were not violated under either s.7 or s.8 of the Charter.