In R. v. Robert, 2021 MBPC 64, December 16, 2021, the accused was charged with impaired operation of a motor vehicle causing bodily harm. After a collision, the accused was taken to a hospital. The trial judge indicated that at the hospital, “blood samples were taken from Robert for medical purposes. Later that same day, Winnipeg Police Service Constable Sorokowski (Sorokowski) learned of the existence of the blood samples from a hospital lab technician. The technician told Sorokowski he would place a hold on the samples so they would be available if the police obtained a warrant for their seizure. Sorokowski applied for, and was granted, a search warrant for Robert’s blood samples and medical records” (at paragraph 2).
The accused argued that “his right to be free from unreasonable search and seizure, pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (the Charter), was violated when the lab technician disclosed his private medical information without his consent and acted as an agent of the state by holding the samples until a search warrant was obtained. He also argues the information used to support the issuance of the search warrant was insufficient to establish reasonable grounds for the officer’s belief an offence had been committed” (at paragraph 3).
The application was dismissed.
Did Sorokowski Unlawfully Search and Seize Private Medical Information When he Spoke to the Lab Technician?
Judge Cawley held that “[b]alancing all of these factors leads to the conclusion any subjective expectation of privacy held by Robert was not objectively reasonable. The fact blood samples existed was ‘neutral medical information’ that did not engage a reasonable expectation of privacy…Charter protection under s. 8 is limited to reasonable expectations of privacy because the law recognizes there may be circumstances where ‘…the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement’…In my view, the limited inquiry made by Sorokowski at the hospital appropriately balances Robert’s privacy interests with society’s interest in effective law enforcement. The interview with the lab technician was not a “search” for Charter purposes. Section 8 was not violated” (at paragraphs 26 and 27).
Was Section 8 Violated When the Lab Technician Agreed To Hold the Blood Samples for the Police Until they Obtained a Warrant?
Judge Cawley noted that “[w]hile there may be circumstances where hospital staff are considered agents of the state, for example when a doctor takes a blood sample at the request of the police (Dersch at para 20), there is no evidence in this case of any such demand or direction. Sorokowski did not ask the hospital staff to take a sample of Robert’s blood. He did not ask about test results or request they hold the sample for him until he returned with a warrant” (at paragraph 30).
Judge Cawley concluded that “[e]ven if Sorokowski asked the lab technician to hold the samples until he obtained a warrant, that does not turn the lab technician into an agent of the state or violate the Charter…While non-compliance with existing hospital policy may be relevant to the analysis, Robert has not proffered any evidence to suggest the lab technician held the samples in violation of an existing policy. Based on the evidence before this Court, the common law and s. 22(2)(k.1) of PHIA [Personal Health Information Act] entitled the lab technician to disclose the fact a blood sample had been taken from Robert. Sorokowski’s limited inquiry about the existence of blood samples and the holding of the samples for a reasonable amount of time, until a warrant was obtained, was lawful. Section 8 was not violated” (at paragraphs 31 and 32).
