If Tiger Woods Happened on the Bridal Path

December 15, 2009

In the controversy surrounding Tiger Wood’s recent driving accident, it has been rumored that Mr. Wood’s blood tests from the hospital revealed that he had consumed alcohol, prescription drugs and sleeping pills before his now-infamous car crash. However, because the police did not request a breathalyzer at the scene of the accident, the media speculates that the blood samples taken from Tiger at the hospital will not be admissible against him in a court of law, should he be charged with an offence arising out of the accident.

If the same thing were to happen in Toronto, would the blood samples be admissible against Tiger Woods assuming he was charged with impaired driving? According to Canadian law, the blood samples obtained from Tiger at the hospital would be admissible in a Canadian court if and only if certain preconditions are met.

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that every individual has the right to be free from unreasonable search and seizure. The testing of an individual’s breath, urine, or blood constitutes “search or seizure” under the law. In order for the police to obtain the sample without violating section 8 of the Charter, they must establish that the search/seizure is reasonable under the law and obtain a search warrant.

The police would have to obtain a search warrant in order to lawfully obtain the samples. A search warrant must be obtained from a judge. A judge will grant a search warrant if he or she finds that, based on the information contained in an application known as a “sworn information”, the officer has reasonable grounds to believe that the individual was impaired at the time of the accident. Thus, one of officers investigating the Woods collision would have to file a “sworn information” stating that he or she had reasonable grounds to believe that Tiger Woods was impaired at the time of the accident. The officer would also have to include a description of the evidence on which he or she formed that belief. The information cannot be based on the results of the blood, urine or breath test. It would be unfair if the police could use the results of the test in order to obtain permission to obtain those results. Thus, the officer must provide independent grounds on which he or she suspects that alcohol or a drug was involved in the collision. For example, if the officer or any witness smelled alcohol on Mr. Wood’s breath, if the hospital or ambulance staff reported smelling alcohol on Mr. Woods, if empty alcohol containers were found in Mr. Wood’s car, if witnesses described Mr. Wood’s behaviour as indicative of intoxication, etc., these factors would provide evidence to support a search warrant request. The judge would then determine whether the sworn information contained sufficient reliable evidence to issue a warrant.

Even if the officer obtains a warrant, the bodily samples taken from the accused will be inadmissible under s. 8 of the Charter if the defence can prove that they were taken without the accused’s consent, prior to the issuing of the warrant, for no purpose other than evidence collecting. If the samples were taken for legitimate health reasons, the police can obtain them after-the-fact pursuant to a warrant without breaching the Charter. However, the police cannot ask the doctor to take the samples and then go get a warrant. This would constitute a breach of the accused’s Charter rights. In the recent case of R. v. Grant the Supreme Court of Canada explicitly stated that “forcible taking of blood samples” will almost always breach the Charter. If the police were to have a nurse or doctor take the samples from the accused for police purposes, this would likely constitute a forcible taking (as the accused is tricked into giving the sample) and the sample would not be admissible at trial. However, if the samples are taken for legitimate health reasons, there is no reason that they would not be admissible after the fact, so long as the officer can persuade a judge that there are reasonable grounds to believe that the accused was impaired, and obtain a search warrant.

Once the Crown has established that the taking of the samples did not breach section 8 of the Charter, the Crown must prove that the samples are a true representation of Tiger’s Blood Alcohol Concentration (BAC) at the time of the accident. To do this, they must establish timing and continuity of the samples.

Under normal circumstances, the Crown benefits from a presumption that the BAC measured in the samples corresponds to the accused individual’s BAC at the time of the offence. In order to benefit from this presumption, the Crown must prove a number of things. For example, two samples must be taken, they must be taken within two hours of the offence, they must be taken “as soon as practicable”, there must not be any unreasonable time delay between the samples, the samples must have been taken by a qualified medical practitioner or qualified technician under the supervision of a doctor, and the samples must be placed directly in approved containers. A number of these conditions may have been lacking in the Woods case. For example, there may have been unreasonable delay between the accident and the taking of the samples, they may not have been taken within the two-hour window, and they may not have been secured directly into an approved container. For this reason, it is unlikely that the Crown will benefit from the presumption. Therefore, the Crown will have to prove that Mr. Wood’s BAC at the time the samples were taken was the same as Mr. Wood’s BAC at the time of the offence. For example, Tiger Wood’s defence lawyer could argue that Mr. Woods consumed the impairing substances right before driving, and that there was not enough time between consumption and driving for the effects of the substances to set in. The Crown will have the burden of disproving this argument.

Proving continuity means proving that the particular bodily samples being entered into evidence did, in fact, come from Mr. Wood’s body and that they have not been tampered with. Under usual circumstances, continuity is presumed because the samples are taken in the police station and immediately sealed and taken to the Center for Forensic Science where they are tested. However, since hospital samples may not have been officially sealed, continuity will be more difficult to prove. The Crown will have to call every individual who handled the samples prior to their collection by the police, as witnesses. In R. v. Katsigiorgis, the court ruled that it is not a violation of s. 8 for the police to seal the samples prior to obtaining a search warrant, in order to preserve continuity. However, there is no evidence that the police did this in the Tiger Wood’s case.

If the Tiger Woods incident occurred in Toronto and the police were able to prove reasonable grounds, obtain a search warrant, establish that the samples were taken for legitimate medical reasons, and establish timing and continuity, the samples would be admissible in a court of law. As the case played out in Florida, the Florida police released a statement saying that they did not suspect any foul play before the rumors about Tiger’s blood samples began to circulate. Assuming the exact same facts occurred in Toronto, this press release would make it extremely unlikely that the Toronto police could obtain a search warrant and seize the samples. This is because, by admitting that they did not suspect foul play, the police admitted that they did not suspect that Tiger was impaired. In other words, they admitted that they did not have reasonable and probable grounds to obtain a search warrant. Thus, if Tiger was indeed impaired at the time of the accident, the evidence of impairment would not be admissible at trial, whether that trial occurred in Florida or Toronto.

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