Supreme Court to Hear Case on Blood Drawing Ordered By Police Prior to a Warrant Being Obtained and Without Permission of Driver

August 23, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Police may order the sampling of blood by medical personnel in cases where impaired driving is suspected. The courts have considered this controversial and a case is moving to the Supreme Court of Canada following a woman’s conviction of impaired driving in a motorboat crash. An Ontario Court of Appeal judge called the case a serious breach of Charter rights.

The Supreme Court of Canada will hear the appeal of an Ontario woman who was convicted following a motorboat crash on Lake Muskoka in 2013. In the incident Ms. Culotta was driving home early in the morning from a party to her cottage. It was raining heavily, visibility was poor. She had passengers aboard. She was driving fast enough to be planning above the water and did not slow down when she crashed into a small rocky island. Three women were ejected from the boat, two landing on the island and one in the boat. Two were seriously injured.

She was charged with several offences. The issues on appeal will be the seizure of blood samples by the medical staff on behalf of the police, and the whether the young woman had adequate access to a lawyer upon arrest. Ms. Culotta was sentenced to 90 days served on weekends in 2017.

In July of 2018 the Ontario Court of Appeal upheld Ms. Culotta’s conviction on two counts of operating a vessel causing bodily harm while having a BAC over the legal limit. Four other charges against here were stayed conditionally.  In the dissenting opinion Justice Pardu wrote “Co-opting extra blood samples was a serious breach by police (of Culotta’s Charter rights).

The appeal is based directly on the issues raised in the dissenting opinion – namely

• Was Ms. Colutta’s right to legal counsel breached in the hours following her accident?
• Should the hospital blood sample which was seized by police with a warrant be excluded based on the violation of her rights?

Following the accident, the OPP noticed the smell of alcohol, Ms. Colutta admitted to alcohol consumption, she had a slight slur in her speech and was noted to have watery eyes. At that point when was arrested but not immediately cautioned about her right to silence so as not to interfere with the medical care being provided on shore. When taken to the hospital about 1.5 hours after the accident the young woman told the officer she had a family lawyer, but she didn’t know his name. The officer called the woman’s father to get the lawyer but was unable to contact him. Doctors took blood as part of the medical treatment Ms. Colutta received. At that time an officer told the lab tech that he wanted some blood for investigative use and the technician drew more blood than medically necessary without Ms. Colutta’s permission. A warrant was later secured to test the blood showing her well over the legal limit.  

No date has yet been set for the Supreme Court hearing.

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