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| John L. Hill |
On July 22, 2021, Sheena Noeleen Ouellette ran a red light in Edmonton and collided with another vehicle. Emergency medical services (EMS), the Edmonton fire department and two police officers responded to the scene. Before police arrived, EMS secured Ouellette on a stretcher and transported her to the hospital in an ambulance.
After police arrived, a civilian witness told the investigating officer that Ouellette appeared impaired. An officer entered the ambulance and was informed by EMS personnel that alcohol or drug use may have contributed to the collision. After briefly leaving the ambulance to take scene photographs, the officer re-entered and rode with Ouellette to the hospital, intending to arrest her.
During the ambulance ride, an EMS attendant asked Ouellette various medical and demographic questions. When asked whether she had consumed alcohol or drugs, Ouellette stated she had consumed one cooler and cocaine. Based on observed symptoms, the attendant further inquired whether she had taken GHB, widely known as a “date-rape drug.” Ouellette confirmed she had. The officer overheard these exchanges and made handwritten notes of the statements regarding alcohol and drug intake but did not pose any questions or participate in the conversation. Ouellette drifted in and out of consciousness, and there was no indication she was aware of the officer’s presence.
Nadezhda Deineka: ISTOCKPHOTO.COM
The trial judge found that Ouellette’s ss. 8, 10(a) and 10(b) Charter rights were violated.
The judge ruled that Ouellette had a reasonable expectation of privacy regarding the information disclosed in the ambulance, describing it as highly sensitive personal health data. The disclosure was made to EMS personnel, who are bound by statutory confidentiality obligations. Although the Crown argued that the officer was merely a passive observer, the judge found that once the officer started taking notes, he was no longer passive and created a “permanent record” for investigative purposes, which constituted a state seizure (R. v. Tessling, 2004 SCC 67 on informational privacy; R. v. Cole, 2012 SCC 53 on police recording of private information).
Consequently, the trial judge excluded Ouellette’s admissions from the ITO under s. 24(2) of the Charter and determined that, without those admissions, the warrant could not have been issued. The charges were dismissed. The Crown appealed.
Section 8 of the Charter guarantees that “[e]veryone has the right to be secure against unreasonable search or seizure,” protecting individuals from unjustified government intrusion into their privacy (R. v. Campbell, 2024 SCC 42; R. v. Bykovets, 2024 SCC 6; Hunter v. Southam Inc., [1984] 2 S.C.R. 145). Police actions that interfere with a reasonable expectation of privacy are considered a “search,” and collecting information without consent is regarded as a “seizure” (R. v. Law, 2002 SCC 10, citing R. v. Dyment, [1988] 2 S.C.R. 417).
Section 8 protects only reasonable expectations of privacy, not merely information an individual wishes to keep private. A s. 8 claim requires demonstrating both a subjective expectation of privacy and that such an expectation is objectively reasonable considering the totality of the circumstances. In line with Tessling, courts examine the subject matter of the search, the claimant’s interest in it, the claimant’s subjective expectation and the objective reasonableness of that expectation.
Under subject matter, courts assess “the nature of the privacy interests potentially compromised” (R. v. Spencer, 2014 SCC 43). The Supreme Court requires a “broad and functional approach” that focuses on whether the information discloses biographical core details (R. v. Spencer; R. v. Bykovets; R. v. Plant, [1993] 3 S.C.R. 281). Both lower courts defined the subject matter as Ouellette’s personal health information, not merely her admission of drug and alcohol consumption. This broader view was upheld because information disclosed to a medical professional in the course of treatment is subject to heightened privacy protections.
There was no dispute that Ouellette had a direct and subjective expectation of privacy in information disclosed to the ambulance attendant.
To determine a reasonable expectation of privacy, courts consider contextual factors. Relevant here were:
(1) The private nature of the information. Although case law is divided on whether admissions of drinking during medical treatment are part of the biographical core, Supreme Court jurisprudence emphasizes that information disclosed during medical treatment is fundamentally private.
(2) Information held by a third party. Medical information is typically subject to strict confidentiality. Although Alberta’s Emergency Health Services Act allows certain disclosures, no such disclosures occurred here.
(3) The place. Like a hospital emergency room, an ambulance does not ensure complete privacy, and patients have a lower expectation of privacy there.
(4) The manner of acquisition. Minimally intrusive police techniques are less likely to qualify as a search. In this case, the officer had implied consent to be in the ambulance, made no inquiries and overheard the conversation incidentally.
Passive presence does not constitute a search, and passive receipt of unsolicited information does not engage s. 8. Section 8 guards against intrusion, not against the state learning information voluntarily provided to a third party. The Ontario Court of Appeal in Orlandis-Habsburgo, 2017 ONCA 649 emphasized that information provided by an independent third party does not trigger s. 8 merely because it is private.
Although recent Ontario cases (R. v. S.S., 2023 ONCA 130) suggested that overheard communications in medical settings could constitute a seizure, those cases are distinguishable because the police had explicitly attended to investigate impairment. The Crown in S.S. conceded that the interception constituted a search.
The courts below held that the officer’s note-taking converted passive overhearing into a seizure. However, the jurisprudence distinguishes passive overhearing from creating a surreptitious electronic recording, the latter being a search. Unlike the permanent electronic recording in R. v. Simard, 2018 BCSC 1901, simple note-taking does not constitute a s. 8 intrusion.
The Appeal Court concluded that although Ouellette had a reasonable expectation of privacy in medical information disclosed during treatment, the officer’s passive presence and incidental overhearing, combined with non-intrusive note-taking, did not constitute a search or seizure. Therefore, s. 8 was not engaged. Ouellette’s acquittal was set aside, and a new trial was ordered.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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