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),