Law Times

August 6, 2018

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Page 2 August 6, 2018 • LAw times police were continuing to inves- tigate. She was also asked to pro- vide a statement, which she did. A few weeks later, police ob- tained a warrant for the records of the blood taken for medical reasons. The trial judge excluded the blood samples provided to po- lice as evidence, finding that the lab technician was "co-opted" by the investigating officer. The hospital records, which included blood alcohol information, were admitted. Derstine agrees that the hospi- tal records, obtained by a warrant, did not involve state conduct. "But when the Charter breach [by police] is sufficiently serious, the surrounding causation does not have to be as strong," he sug- gests. The seriousness of the Char- ter violations by police and whether it should impact the ad- mission of the hospital records is where Nordheimer and Hou- rigan disagreed with Pardu. The majority found that there was not a breach of the right to counsel by police and also that when the trial judge re- ferred to co-opting the hospital employee, it was for the purpose of "sealing" the extra blood and not the taking of the additional samples. As well, the inexperience of the officer was a factor to be considered in the 24(2) Char- ter analysis, the majority stated. "The Charter violations that occurred were almost entirely the result of the fact that Officer Tunney was a fourth-class rook- ie constable conducting his first investigation of an 'over 80' op- eration of a boat causing bodily harm case," wrote Nordheimer. "Good faith honest errors by the police represent less seri- ous Charter infringements," he stated. LT scrutinize how police interact with suspects when they are in a vulnerable state, such as being treated in the emergency room section of a hospital. As well, he says the case high- lights a recurring issue in small- er communities where police are able to convince other public sector workers, such as hospital employees, to bend the rules. "It is a problem. They are too buddy-buddy," says Cowan, who also describes the extra blood taking as a serious Charter breach. "We are talking about a war- rantless seizing of a person's blood. This is a constitutional democracy, not a Bram Stoker novel," he states. Culotta was operating a boat with four friends as passengers when it collided into a small rocky island at around 2 a.m. The five women were returning from a social gathering to Culot- ta's family's cottage on the lake. Two of the passengers were seri- ously injured. All five received medical treatment that night. The OPP officer on the scene initially arrested Culotta while speaking to her in the ambu- lance, but he did not inform her of her right to silence or right to counsel, because, he says, he did not want to interfere with ongo- ing treatment by the paramedics. In hospital, the officer pro- vided a caution and asked Cu- lotta if she wanted to contact a lawyer. She indicated her parents would be there soon and they had the name of a lawyer who acted for the family. The officer's notes of this interaction said that he was "not sure if [she] fully understands her situation," the court heard. A couple of hours after she was admitted to the emergency section of the hospital in Brace- bridge, Ont., a technician took samples of blood for tests, in- cluding those for blood alcohol, for medical reasons. Two extra vials were taken at the request of the officer, sealed and placed on a shelf in the laboratory refrigerator that was marked "for police use." A few hours after the inci- dent, Culotta was told she could leave "unconditionally" but that has a moral obligation to its citi- zens to take this to court," she says. "While there is no doubt in my mind that the province can unilaterally make fundamental changes to municipal govern- ments — and we've seen Conser- vative governments do this be- fore — the so-called Better Local Government Act lacks political legitimacy." Within minutes of the bill being tabled last week, Acham- pong filed a notice of application with Ontario's Superior Court of Justice, asking the court to re- view the bill and rule on its legal- ity. According to his application, listing Ford, Ontario's attorney general and Toronto Mayor John Tory as respondents, Acham- pong is seeking orders for the "interim preservation of the sta- tus quo rules and regulations" governing the 2018 election and to suspend the coming into force of Bill 5 until his application can be heard. He gives several legal grounds for his application, notably the bill's non-compliance with the rules and regulations governing candidacies according to both provincial and municipal laws, including the City Toronto Act (2006), the Municipal Act (2001) and the Municipal Elections Act (1996). "The controlling law, rules and regulations that have been operative since the start of the election cycle have now been thrust into a state of ambiguity and uncertainty," reads the ap- plication. "Late changes in election rules run the risk of unfairness or, at the very least, the percep- tion of unfairness and, as such, has the effect of diminishing public confidence in the city's democratic process." Toronto criminal lawyer Da- vid Butt says he's happy some- one has mounted a legal chal- lenge to Bill 5. "A constitution does nothing if it doesn't ensure and protect our shared sense of democracy," says Butt, who notably served as counsel to the Bellamy Inquiry that examined municipal gov- ernance and procurement in To- ronto from 2002 to 2005. Though Butt doesn't dispute the clearly defined constitu- tional powers of provinces over municipal governments in their jurisdictions, he says the Ford bill f lies in the face of traditional practices and electoral conven- tions that have become unwrit- ten components of the Canadian Constitution and the notion of it being "a living tree," which juris- prudence has "solidly endorsed" over many decades. Wade Poziomka, a partner at Ross & McBride LLP and chairman of the Ontario Bar As- sociation's constitutional, civil liberties and human rights law section, says that while "it may well [be] within the province's authority to make the changes proposed by Bill 5, that does not necessarily mean it is a proper exercise of their power in a de- mocracy. "As far as I am aware, Pre- mier Ford did not mention such a drastic and consequential change in his election platform and the steps taken recently in terms of Bill 5 should be very concerning to Ontarians," he says. "This will ultimately dilute access to political representation for Ontarians, because there will less representatives for the same number of people. While I do not see this as an illegal move, I do see it as an anti-democratic one." LT — with files from Gabrielle Giroday NEWS 'Moral obligation' to take bill to court Continued from page 1 Continued from page 1 'Police can't seize blood first and get permission later' © 2018 Thomson Reuters Canada Limited 00250QO-A93154-CM CORPORATE / COMMERCIAL Secured lending insight starts here New Edition The 2018-2019 Annotated Ontario Personal Property Security Act Richard H. McLaren, Professor of Law, H.B.A. (Western University), LL.B. (Western University), LL.M. (London), C.Arb. Any time your commercial transactions involve debt security, there will be issues that must be considered under the province's Personal Property Security Act (PPSA). You can help smooth the way when taking and enforcing security by consulting Richard McLaren's The 2018-2019 Annotated Ontario Personal Property Security Act − a complete practitioner's manual to the Ontario regime, written by an acknowledged expert. 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