R. v. Dersch
Encyclopedia
R. v. Dersch, [1993] 3 S.C.R. 768 is a leading Supreme Court of Canada
decision on the right against unreasonable search and seizure
under section 8
of the Canadian Charter of Rights and Freedoms
. The Court held that sharing of personal information of patients, such as blood test results, between health care professionals or law enforcement violates section 8 of the Charter and should be excluded under section 24(2)
.
. His car swerved into oncoming traffic and caused an accident, killing the other driver. When the police arrived Dersch refused the breathalizer. The police noticed that his eyes were glazed and he appeared intoxicated. He was taken to the hospital where the doctor tried to give him an intravenous line which he resisted. Eventually he passed out and the intravenous was given and a blood sample was taken. The doctor tested the blood for alcohol content as it was necessary for treatment.
The police requested a blood sample from Dersche who refused. The police then asked for the medical report which the doctor gave them. It revealed that he was intoxicated at the time of treatment. Later, the police obtained a warrant to seize the blood sample.
At trial the judge found that there was no violation of section 8 as the blood sample was taken for medically necessary reasons. The decision was upheld in the British Columbia Court of Appeal.
The issues before the Supreme Court were:
The Court found that the doctor and hospital were not subject to the Charter. It was also found that the police's conduct was in violation of section 8, was not justified under section 1, and that the evidence should be excluded under section 24(2).
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on the right against unreasonable search and seizure
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
under section 8
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Court held that sharing of personal information of patients, such as blood test results, between health care professionals or law enforcement violates section 8 of the Charter and should be excluded under section 24(2)
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
.
Background
In the evening of October 7, 1987 Wilfred Dersch was driving near Duncan, British ColumbiaDuncan, British Columbia
Duncan is a city on southern Vancouver Island in British Columbia, Canada.-History:The community is named after William Chalmers Duncan . He arrived in Victoria in May 1862, then in August of that year he was one of the party of a hundred settlers which Governor Douglas took to Cowichan Bay...
. His car swerved into oncoming traffic and caused an accident, killing the other driver. When the police arrived Dersch refused the breathalizer. The police noticed that his eyes were glazed and he appeared intoxicated. He was taken to the hospital where the doctor tried to give him an intravenous line which he resisted. Eventually he passed out and the intravenous was given and a blood sample was taken. The doctor tested the blood for alcohol content as it was necessary for treatment.
The police requested a blood sample from Dersche who refused. The police then asked for the medical report which the doctor gave them. It revealed that he was intoxicated at the time of treatment. Later, the police obtained a warrant to seize the blood sample.
At trial the judge found that there was no violation of section 8 as the blood sample was taken for medically necessary reasons. The decision was upheld in the British Columbia Court of Appeal.
The issues before the Supreme Court were:
- whether the doctors and hospital were subject to the Charter.
- whether the police's conduct violated section 8 and if so whether it was saved under section 1.
- if a violation is found whether the evidence could be excluded under section 24(2).
The Court found that the doctor and hospital were not subject to the Charter. It was also found that the police's conduct was in violation of section 8, was not justified under section 1, and that the evidence should be excluded under section 24(2).