R. v. SINGH, 2024 ONCA 66, JANUARY 31, 2024.

FACTS:  The accused, after consuming alcohol, was involved in a collision causing the death of two people. He was taken to the hospital. Blood was taken from him.  He was in and out of consciousness. At the hospital, a police officer (Detective McDonald) bent over the accused and smelled his breath. The police seized the blood and it was analyzed and found to contain an illegal blood–alcohol content. At his trial, he argued that Detective McDonald’s actions constituted a breach of section 8 of the Charter and the blood analysis should be excluded. The trial judge agreed that a breach of section 8 occurred, but declined to exclude the evidence.  The accused was convicted of a number of offences and appealed from conviction.  

HELD:  The appeal was dismissed. The Ontario Court of Appeal held that the “police ‘seized’ the exhaled air when they took that air into their nose. More significantly, they also seized certain information revealed by smelling that air. By smelling the appellant’s breath, the officers learned that the appellant may, at some time prior to the accident, have consumed some unknown quantity of alcohol. That information was the target of the police activity” (at paragraph 45).

However, the Court of Appeal concluded that a breach of section 8 did not occur because the police did not interfere with the accused’s reasonable expectation of privacy (at paragraphs 56 to 58):

I see no possibility that by sniffing the appellant’s breath it could be said that Detective McDonald and his partner interfered with the appellant’s reasonable expectation of privacy with respect to personal information relating to the appellant’s medical treatment. Detective McDonald was careful to ensure that there was no medical reason preventing him from interacting with the appellant before he engaged with the appellant and made the relevant observation. The officers made no attempt to co-opt medical personnel to the investigation, or obtain information from the medical personnel. On the facts of this case, the smelling of the appellant’s breath could not possibly reveal anything relevant to the appellant’s medical condition or treatment. There is no material difference between what Detective McDonald and his partner did, and the actions of a police officer who smells the breath of a passed-out driver in the backseat of the police vehicle.

Counsel for the appellant attempt to connect the smelling of the appellant’s breath with his need for medical treatment by submitting that it was the appellant’s alcohol consumption that led him to require medical treatment. The reason a person is receiving medical treatment will be a consideration when deciding whether a particular communication was related to the giving or receiving of medical treatment or advice. I do not accept, however, that the appellant’s alcohol consumption is what caused him to require medical treatment. He required medical treatment because of the injuries he suffered in a serious car accident.

I am satisfied there are no material factual distinctions between the s. 8 claim advanced by the appellant and claims that have been unsuccessfully advanced in the many cases where the police have smelled the driver’s breath at the roadside, scene of an accident, or in the ambulance on the way to the hospital. Those cases dictate the result in this case.