The unconscious patient under criminal investigation raises challenges for the police who seek to obtain a sample of that patient’s blood for analysis, as there would appear to be no statutory authority for their doing so.  If police are able to obtain the blood, it would have to be under their common law ancillary powers.  The exercise of all public power must find its ultimate source in a legal rule—this  precept which is a fundamental component of the rule of law, which lies at the root of our system of government.

Grounded in the common law, the ancillary powers doctrine is codified in s. 31(2) of the Interpretation Act, R.S.C. 1985, c I-21:

31(2) Where power is given to a person, officer or functionary to do or enforce any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given

However, it is well-established that—at least in light of the current state of the ancillary powers doctrine—police have no ability at common law to extract the blood from an individual’s body.  This is primarily because an individual has a high expectation of privacy in the blood flowing within her body vis-à-vis the police acting in furtherance of a criminal investigation.  An invasion of this type of privacy expectation by police has been recognized by the Supreme Court of Canada as constituting one of the most significant and serious intrusions into one’s constitutionally-protected privacy interests.

Do the actions of the police at the hospital constitute a seizure?

Section 8 of the Canadian Charter of Rights and Freedomsis concerned with the protection of privacy interests of individuals from search or seizure.

A seizure occurs whenever there is a non-consensual taking of an item by the state in respect of the which the citizen has a reasonable expectation of privacy.

R. v. Dyment, 1988 CanLII 10 (SCC),
[1988] 2 S.C.R. 417, at  pp. 432 and 435.

In order to determine whether the taking of blood constituted a seizure, one must consider the effect of the state’s involvement in the process.  For instance, did the police direct the health care practitioner to take an extra vial of blood for them, (which should be viewed as the functional equivalent of the police extracting the blood), or was the blood taken for a medical purpose with the police merely in attendance? 

In taking the blood was the doctor/nurse acting as an agent of the state?

The legal test for whether an individual is acting as an agent of the state is set out in R. v. Broyles, [1991] 3 S.C.R. 595: would the interaction between the accused and the individual have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?

R. v. Broyles, [1991] 3 S.C.R. 595.

The law is clear: a health care worker who takes a blood sample at the request of police is acting as an agent of the government and his or her actions are subject to the Charter.

R. v. Pohoretsky, [1987] 1 S.C.R. 945.

The Reasonable Expectation of Privacy in One’s Blood

One of the first cases in which the Supreme Court of Canada considered the exclusion of evidence obtained in breach of the claimant’s section 8 rights was the blood evidence case of R. v. Pohoretsky, [1987] 1 S.C.R. 945.  In that case, a physician, at the request of a police officer, extracted a blood sample from the appellant who was in an incoherent and delirious state.  There was no statutory basis for the police to seize the blood.

This non-consensual taking of a blood sample, the Court recognized, amounted to an extremely serious violation of the interests protected by section 8:

“A violation of the sanctity of a person’s body is much more serious than that of this office or even his home.”

R. v. Pohoretsky, [1987] 1 S.C.R. 945 at para 5.

Given the seriousness of the violation to the appellant’s section 8 rights, the Supreme Court of Canada excluded the unlawfully seized blood evidence.

There is no doubt that “physical integrity, including bodily fluids, ranks high among the matters receiving constitutional protection”: R. v. Colarusso, [1994] 1 SCR 20.

The taking of a blood sample constitutes a substantial interference with the liberty of the subject and the taking of a blood sample is an interference of a very intrusive nature: R. v. Pavel, [1989] O.J. No 2307 (C.A.).

In R. v. Dyment, 1988 CanLII 10 (SCC), a blood seizure case, Justice La Forest emphasized that “the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity”.  Similarly, Justice Cory, writing for the majority in R. v. Stillman, [1997] 1 S.C.R. 607 was of the view that any invasion of the body is “the ultimate invasion of personal dignity and privacy.”

The law has not resiled from that position.  Indeed, the common law has never allowed police officers the power to physically penetrate the body wall of an individual for the purpose of collecting evidence against that individual.  Specifically, common law police powers have never extended to allow the police (or those acting as their agents) to take an individual’s blood from out of his or her body.

It is now almost axiomatic that one has a very high expectation of privacy in relation to the blood within one’s body.

This privacy expectation is anchored in the fact that not only is blood an intimately personal substance which possesses informational content that is otherwise confidential (see for instance R. v. Dyment), but also the taking of a blood sample is an interference of a very intrusive nature requiring penetration of the body wall, and affecting interests such as dignity, bodily and sanctity of the body.
[To be continued.]