The drunk driver has no grounds in which to appeal

Rob Ramage won Stanley Cup rings with the Calgary Flames and Montreal Canadiens. He also played for the Colorado Rockies, St. Louis Blues, Toronto Maple Leafs, Minnesota North Stars, Tampa Bay Lightning and Philadelphia Flyers. Ramage retired after the 1993-94 season. Unfortunately, Ramage, like many other sports celebrities, was drunk when he was driving his rental car just north of Toronto in Canada in December 2003 after he and his friend, former NHLer, Keith Magnuson, 56 had attended the funeral of another friend. Ramage’s car veered across the median and smashed head-on into two other vehicles and as a result, he killed his passenger and was subsequently charged with impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm.

In 2007, he was convicted of those charges and sentenced to four years in prison and banned from driving a vehicle for five years. He appealed his conviction and sentence and is requesting a new trial and as a result of his lawyer filing his appeal, the court released him from custody pending the final outcome of his appeal. While waiting for his appeal, he continues to live in the U.S.

His case went before the Ontario Court of Appeal in February 2010, and at the time of this writing, the court has not rendered its decision as of yet.

The main basis of the appeal is truly an interesting one and is one that may have an effect on many people found driving while drunk and who find themselves in a similar situation that Ramage found himself when he was in the hospital. After being brought into the hospital with a head injury, he was given morphine to the dull the pain. After being given the drug, he asked if he could urinate and he was given a container in which to urinate. The police officer standing nearby asked Ramage if he could have a sample of his urine that he was giving to the hospital orderly. Ramage gave the officer his permission.

Urine is a good way to determine how much alcohol is in a suspect’s blood. The blood/alcohol readings of his urine showed that before the accident, Ramage had to have consumed between 15 and 25 drinks. The main questions which must be addressed concerning this seizure are, first, whether it was authorized by law; second, whether the law itself was reasonable; and third, whether the way the seizure was carried out was reasonable.

Ramage wishes to impugn the introduction of the blood/alcohol sample analysis by saying that the sequence of events through which the police ultimately obtained the results of the urine/alcohol sample analysis constituted an unreasonable seizure by the police officer himself. His lawyer, Brian Greenspan representing him on his appeal, argued that his client’s Charter rights were violated because the officer didn’t have a warrant, hadn’t yet given Ramage a chance to speak with a lawyer, didn’t advise him he didn’t have to comply and didn’t determine if Ramage was capable of giving informed consent especially after he was given the morphine, Ramage was not able to give informed consent when the police officer requested a urine sample from him.

Morphine works quickly. It will usually relieve pain within about 30 minutes. The side effects of this drug include feelings of dizziness and euphoria because of its sedative properties. One of the bigger problems when taking this drug is that people can feel disorientated or disconnected from the world. It can lead those being given the drug into a feeling of being almost in a dream-like state. Of course a factor that had to be taken into consideration is at what stage of disorientation was Ramage in when he was asked to give a sample of his urine to the police officer.

Let’s say for argument sake that he was in a stage of disorientation. Now this is where the case becomes really interesting. Can a suspect give an informed consent if he is disoriented or in a dream-like state? The answer is obviously; no he can’t. That being the case, the court would have to presume that his consent was not informed and normally, obtaining such consent would not be proper and any evidence that came about as a result of uninformed consent would not be accepted as evidence in a trial.

Section 24(2) of the Canadian Charter of Rights and Freedoms (also known as the Constitution Act, 1982) states;

“Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

This would also be applicable if section 11(c) was breached. That subsection of the Charter states;

“Any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.”

Being asked to submit a urine sample while the suspect is disoriented or in a dream-like state would in fact be compelling him to submit evidence against himself.

Further, the act of obtaining the urine sample could be considered as being unconstitutional because it constituted an unreasonable seizure, contrary to section 8 of the Canadian Charter of Rights and Freedoms considering that the seizure of the urine was brought about by the uninformed consent of Ramage. That being as it is, the seizure of the urine would be an unreasonable one and therefore, unacceptable at trial.

Is the seizure of urine from a suspect who gives his uninformed consent to the police officer inconsistent with the Charter? The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Obviously, the question that faces the court is, was the seizure of the urine after receiving uninformed consent from Ramage demonstrably justified?

To answer that question, I refer you to a Supreme Court of Canada case heard by that court in 1994. It was R. v. Colarusso. That case is somewhat similar to Ramage’s case.

Colarusso was an impaired driver involved in two serious accidents within the course of a few minutes. He first struck a pick up truck from behind sending it out of control, stopped briefly and then he drove off without stopping to offer aid. Both occupants of the truck received significant injuries. Minutes later, Colarusso's vehicle crossed the centre line of the highway and was involved in a head on collision killing the innocent driver. Colarusso had been driving without headlights at the time of the second accident -- 1:30 a.m. The police arrived shortly after the second accident. Colarusso had been knocked unconscious, was disoriented on regaining consciousness and his breath smelled of alcohol. A formal demand was made for a breath sample, but no sample was taken. The police arrested him and took him to hospital where medical staff took blood and (assisted by a police officer) urine samples as part of a standard "Trauma Protocol Procedure". Although Colarusso was initially uncooperative, he ultimately consented to the samples being taken for medical purposes only.

A lab technician gave samples of the blood and urine to the coroner at the coroner's request pursuant to s. 16(2) of the Coroners Act but only after the coroner wrote a signed note explaining why he wanted the samples. The coroner then turned the samples over to a police officer at the hospital with instructions that they be properly stored and be taken for analysis.

At trial, the analyst's testimony as to Colarusso's blood/alcohol level, as determined by the tests done on the samples, formed an important part of his convictions as the police had not obtained any independent bodily fluid or breathalyzer sample from the appellant. The Court of Appeal upheld appellant's convictions. Here, the constitutional questions queried: (1) whether s. 16(2) of the Coroners Act infringed the Charter guarantee against unreasonable search and seizure (s. 8); (2) and if so, whether it was saved by section 1 of the Charter.

The Supreme Court ruled that the activities of the police after the arrival of the coroner at the hospital could be viewed in two different ways: (1) as amounting to a seizure by the police independent of the prior seizure by the coroner, and (2) as making the originally valid seizure by the coroner unreasonable because that seizure was not confined to the limited statutory purpose but the evidence seized was ultimately used for law enforcement purposes.

The Ontario Court of Appeal hearing Ramage’s appeal is faced with similar questions. However, it doesn’t simply stop there. The court must then decide if the seizure was within a reasonable limit that can be demonstrably justified.

In the Colarusso case, the court ruled that the seizure was reasonable and accordingly did not violate s. 8 of the Charter notwithstanding the absence of prior judicial authorization. The court had to focus on how the police obtained the samples. The coroner obtained the samples pursuant to s. 16(2) of the Coroners Act and turned them over to the police for safekeeping pursuant to s. 16(5). Assuming the constitutionality of section 16(2), no taking by the police of the samples occurred without the person's consent apart from the actions which are consequent upon the coroner's seizure. No complaint was made as to the discovery of the evidence (implicating the law of search) or as to the steps taken to preserve it (implicating the law of seizure). The police knew of the evidence and were not concerned to preserve it apart from fulfilling their duties with respect to the Coroner's Act.

There was no improper cooperation among the coroner, the police and medical personnel so as to cause the police actions to constitute a seizure. The presence of the police officer in the emergency department was quite proper given that the accused was under arrest. The hospital lab technician was initially reluctant to turn over the samples to the coroner and only did so after speaking to the attending physician and obtaining a written note from the coroner.

In the Colarusso case, the court said that it was not necessary to decide if calling the analyst to testify as to the significance of the samples constituted a seizure by the Crown within the meaning of section 8 of the Charter. Even if this is characterized as a seizure within the meaning of section 8, the seizure was reasonable.

Section 8, like other Charter rights, must be broadly and liberally construed to affect its purpose. And that purpose is to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments. The need for privacy can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion. That physical integrity, including bodily fluids, ranks high among the matters receiving constitutional protection. The requirement for seizing items for the purpose of criminal law enforcement has also been set at a high level; not surprisingly; it involves the freedom of the individual. Absent exigent circumstances, there is a requirement of prior authorization by a judge or justice of the peace as a precondition to a valid seizure for the criminal law purposes.

In Ramage’s case, the police officer couldn’t obtain judicial permission to seize the urine because unlike a blood sample, it would have been normally thrown down the toilet within a minute. He could only legally obtain it if he asked Ramage for the sample; which of course he did. Had Ramage refused the officer’s request, the crown would have been out of luck in convicting him on the evidence of the analysis of the urine since no urine would have been analyzed.

The Colarusso case was not a case in which an independent police officer was called in to take custody of the samples to further the coroner's investigation. The samples were released to the very officer who arrested the accused, thereby necessitating no further investigation by police through the proper channels of criminal procedure. Indeed, the arresting officer completed the paperwork for the Centre for Forensic Sciences and specified the tests to be conducted on the samples seized.

Having concluded that the Ramage’s section 8 Charter rights were infringed, should the evidence of the forensic analyst at trial as to the alcohol content of the urine sample be excluded under s. 24(2) of the Charter on the ground that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute? For the reasons that follow, I do not think that it should. The court must consider (1) the effect of admission of the evidence on the fairness of the trial process; (2) the seriousness of the Charter violation; (3) the effect of exclusion on the reputation of the administration of justice.

Factors relevant to the fairness of the trial include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated. The classification of evidence as to whether or not it was either ‘real’ or ‘conscriptive’ is of importance. The mere fact that the impugned evidence is classified as either real or ‘conscriptive’ should not in and of itself be determinative of the admissibility of the evidence.
It is apparent, that the sample was already in existence prior to any seizure by the police officers. The impugned urine sample in Ramage’s case was given to the officer with express consent of Ramage, albeit a consent which was uninformed.

The relative seriousness of the constitutional violation has to be assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence. In Ramage’s case, the latter reason was the real motive on the part of the officer.

In my opinion, in the Ramage case, the officer acted in good faith in taking the samples of Ramage’s urine for a determination as to whether or not Ramage’s driving was impaired by the ingestion of alcohol. Although I have determined in my mind that the action on the part of the officer constituted an unreasonable seizure of Ramage’s urine sample, the officer believed that the seizure was valid and that considering the fact that Ramage’s urine was about to be flushed down the toilet, he had no other choice but to request Ramage to give him a sample of his urine, even if Ramage didn’t know what he was doing and he had not been advised of his right not to be compelled to act in a manner that was in conflict with his own best interests.

Suppose as a result of a man being intoxicated while driving, he accidentally drove his car into a school bus carrying ten children and the bus caught on fire and the ten children and their driver were burned to death and the accused beat the charge because the police officer, after getting uninformed permission from the accused for a sample of his urine, the crown couldn’t use the evidence in court to prove that the man’s driving was impaired when he smashed into the school bus. Would society’s best interests be served if his case was dismissed because the evidence was obtained in a manner that conflicted with his Charter rights? I think not.

Ramage is also appealing his sentence. Through his lawyer, he is saying that four years in prison is too much even if he is guilty of killing his friend because he was too drunk to drive. He says that his sentence is harsh and grossly disproportionate and that his sentence should be reduced. I ask my readers; if it was your child or spouse who was killed by a drunk driver, would his sentence of four years in prison be harsh and grossly disproportionate? Keep it in mind that in Canada, a defendant only has to serve two thirds of his sentence which would mean that if the court denies his appeal, he would only have to serve 32 months in prison instead of 48 months. That amounts to just less than three years in prison for extinguishing a human life.

The Ontario Court of Appeal is impressed by the fact that he has submitted 105 letters of commendation to the court and that he is remorseful and he has stopped drinking since the accident. I am pleased for him but will that bring back to life the man he killed? His lawyer argued that Ramage’s sentence went against the wishes of Magnuson’s family who hoped for a conditional sentence (no prison time but must stay at home in the evenings) and was disproportionate for an upstanding citizen who had no criminal record. It is all very fine for Ramage’s victim’s family to be forgiving but this drunk driver owes a debt to society, a debt that has yet to be paid.

I personally don’t care if in the last six years, Ramage has lived the life of a saint. He killed a human being because he was stupid enough to drive after having ingested a minimum of fifteen ounces of alcohol before he got into his rental car and killed his passenger after veering across a median and smashing into two cars approaching him. If he must serve four years (or more) in prison, it isn’t because since the accident, he lived a proper life and is remorseful, but rather because prior to getting into his car, he was stinking drunk and was a risk not only to himself and his passenger but also to other motorists on the road. That fact didn’t seem to concern him at all when he turned on the ignition of the car and drove it on a highway.

The Crown (prosecutor) was strongly arguing against the conviction and sentence appeals. Ramage’s lawyer also contends that Ramage’s blood sample showing a high blood alcohol level could have been contaminated by an ethanol swab, and the urine containers could have been contaminated, too. The Crown sounded highly skeptical of that position. He wrote in his court document, “What is the likelihood that four discrete analyses of three samples of blood and urine, collected separately at varying times in different containers, would produce (blood/alcohol content) results three times the legal limit?”

The Crown conceded the Charter violation, but he wrote that the trial judge rightly allowed the urine evidence because the officer’s conduct fell short of being ‘flagrant or egregious.’

I should add that the critical evidence would almost certainly have been discovered absent the violation. No one can drink a minimum of fifteen ounces of alcohol and not show some signs of impairment such as glassy eyes, being unsteady on one’s feet or slurring of one’s words and his breath smelling of an alcoholic beverage, and on top of that, veering across a median and slamming into two oncoming cars. That kind of evidence is sufficient enough for a finding of guilt.

If I were a judge in that court, I would dismiss Ramage’s appeal on the basis that, although the seizure of the blood and urine samples violated section 8 of the Charter, the evidence derived therefrom and introduced at trial should not be excluded under section 24(2) of the Charter.

I hope that the Court of Appeal throws out Ramage’s appeal and orders him to serve even more time in prison than a mere four years. Further, his ban from driving should be increased to ten years. The killing of a human being because of drunk driving is so egregious; it deserves a severe sentence of imprisonment. No matter how much time this drunk driver serves in prison, he will eventually get out of prison and begin to enjoy the many joys of life that he has denied his passenger he killed. Does that seem fair? Is that just?