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DUI, DWI & Criminal Legislation in Ontario  

Criminal Code of Canada , section: 256(1)

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DUI Procedure/Evidence, Blood Warrant

256. (1) Subject to subsection (2), if a justice is satisfied, on an information on oath in Form 1 or on an information on oath submitted to the justice under section 487.1 by telephone or other means of telecommunication, that there are reasonable grounds to believe that

(a) a person has, within the preceding four hours, committed, as a result of the consumption of alcohol or a drug, an offence under section 253 and the person was involved in an accident resulting in the death of another person or in bodily harm to himself or herself or to any other person, and

(b) a qualified medical practitioner is of the opinion that

(i) by reason of any physical or mental condition of the person that resulted from the consumption of alcohol or a drug, the accident or any other occurrence related to or resulting from the accident, the person is unable to consent to the taking of samples of his or her blood, and

(ii) the taking of samples of blood from the person would not endanger the life or health of the person,

the justice may issue a warrant authorizing a peace officer to require a qualified medical practitioner to take, or to cause to be taken by a qualified technician under the direction of the qualified medical practitioner, the samples of the blood of the person that in the opinion of the person taking the samples are necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol or drugs in the personís blood.

(2) A warrant issued pursuant to subsection (1) may be in Form 5 or 5.1 varied to suit the case.

(3) Notwithstanding paragraphs 487.1(4)(b) and (c), an information on oath submitted by telephone or other means of telecommunication for the purposes of this section shall include, instead of the statements referred to in those paragraphs, a statement setting out the offence alleged to have been committed and identifying the person from whom blood samples are to be taken.

(4) Samples of blood may be taken from a person pursuant to a warrant issued pursuant to subsection (1) only during such time as a qualified medical practitioner is satisfied that the conditions referred to in subparagraphs (1)(b)(i) and (ii) continue to exist in respect of that person.

(5) Where a warrant issued pursuant to subsection (1) is executed, the peace officer shall, as soon as practicable thereafter, give a copy or, in the case of a warrant issued by telephone or other means of telecommunication, a facsimile of the warrant to the person from whom the blood samples were taken.

Comments : Whenever there has been an accident, there is an allegation of impairment by alcohol, and the police accompany the accused to the hospital, there is a strong possibility that hospital emergency room staff will draw blood, a trauma panel, for hospital purposes. Protocol requires that the hospital request the consent of the patient. Assuming that blood is drawn the police will often find a way to request that hospital staff advise them of the results. That may be a breach of hospital ethics but it seems to happen quite easily. Police may have a very close working relationship with nursing staff. Once police know that there has been a blood draw, that probably includes an alcohol and drug analysis, it is easy for the investigating officer to contact hospital administration, confirm that the accused was a patient (that blood was drawn and included an alcohol analysis) then swear out a search warrant application to seize hospital records. All this may happen without the consent of the accused or a right to counsel. The seized hospital documents are then sent to the Centre of Forensic Sciences for an opinion as to impairment.

In circumstances where the hospital staff cannot obtain the consent of the accused to drawing blood police may use the approach provided in this section to forcibly obtain blood from the accused by warrant. In Canada the blood must be drawn by a qualified technician under the direction of the qualified medical practitioner. Police cannot draw the blood themselves as they can in some other jurisdictions.

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