R v. Dyment

The respondent had an accident and suffered a head laceration. A police officer drove the respondent to the hospital where the doctor collected free-flowing blood for medical purposes from the respondent who was unconscious. He gave the blood to a police officer who did not have a search warrant or patient consent. The patient was subsequently charged and convicted of the criminal offence of being in care or control of a motor vehicle having consumed an amount of alcohol sufficient to cause an illegal blood alcohol level.

The patient appealed on the grounds that his rights under Section 7 and 8 of the Canadian Charter of Rights and Freedoms had been violated and the blood sample should have been excluded from evidence. Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 8 provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” Section 24(2) of the Charter stipulates that evidence obtained contrary to the rights or freedoms guaranteed by the Charter is to be excluded if its admission would bring the administration of justice into disrepute.

The Supreme Court of Prince Edward Island held that the respondent’s rights under Section 8 right was violated and that the evidence of the blood sample should have been excluded. The Crown then appealed to the Supreme Court of Canada.

The Court dismissed the appeal. It held that the patient was subject to an unreasonable seizure that violated his privacy, contrary to s. 8 of the Charter. The doctor was justified in taking the blood without consent for medical reasons but had no right to take it for other purposes. Blood collected in the medical context is subject to a well-founded expectation that it was to be kept private. Section 8 of the Charter protects not only an individual’s property interest, but his/her privacy interest as well. The police officer took the blood sample without a warrant or his consent. In the absence of pressing necessity, this kind of invasion of an individual’s privacy interest is unreasonable.

The Court held that the blood evidence should be excluded because the human rights violation was very serious. It asserted that the violation of a person’s body is much more serious than a violation of his office or even home. Public trust in both the medical system and the judicial system would be undermined if personal privacy violations could lead to admissible evidence in criminal proceedings.

The dissent however held that the blood analysis should not be excluded as evidence as it could only be excluded if its admission would bring the administration of justice into disrepute. The judge further stated that no misconduct was shown against the police officer and having received substantial evidence having a decisive value on the case, it was his duty to tender such evidence. Therefore, he stated that he would allow the appeal and restore the conviction.

“The foregoing approach is altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state; see Alan F. Westin, Privacy and Freedom (1970), pp. 349 50. Grounded in man's physical and moral autonomy, privacy is essential for the well being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.” (Para 17) 

“There was no consent to the taking of the blood sample in this case; Mr. Dyment was unconscious at the time. But even if he had given his consent, I do not think that would have mattered if the consent was restricted to the use of the sample for medical purposes; see R. v. Griffin (1985), 22 C.R.R. 303 (Ont. Dist. Ct.) As I have attempted to indicate earlier, 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.” (Para 27)

To begin with, I do not accept that the violation of Mr. Dyment's privacy interests was minimal. As I indicated, to use an individual's blood or other bodily substances confided to others for medical purposes for purposes other than these seriously violates the personal autonomy of the individual. In this particular case, the seizure infringed upon all the spheres of privacy already identified, spatial, personal and informational. Under these circumstances, it seems to me that in the absence of pressing necessity, it was unreasonable for the police officer to act as he did. The needs of law enforcement are important, even beneficent, but there is danger when this goal is pursued with too much zeal. Given the danger to individual privacy of an easy flow of information from hospitals and others, the taking by the police of a blood sample from a doctor who has obtained it for medical purposes cannot be viewed as anything but unreasonable in the absence of compelling circumstances of pressing necessity; see R. v. Santa (1983), 6 C.R.R. 244 (Sask. Prov. Ct.), at p. 251. The need to follow established rules in cases like this is overwhelming. We would do well to heed the wise and eloquent words of Brandeis J. (dissenting) in Olmstead v. United States, 277 U.S. 438 (1928), at p. 479: "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." (Para 34)