SECTION 8 - NO REASONABLE EXPECTATION OF PRIVACY FOR BREATH

The issue in this case was whether Ms. Daly had a reasonable expectation of privacy in her breath. She was operating her van when she failed to stop at a stop sign, causing a violent collision with another vehicle in an intersection. The four occupants of the other car and Ms Daly were injured. Ms. Daly was taken by ambulance to hospital where she was treated for her injuries. After the doctor completed treating Ms. Daly he had a conversation with the police officer investigating the accident, during which the doctor said he had noted an odour of alcohol emanating from her. At the officer’s request, the doctor provided a brief written statement outlining this observation.  The doctor testified that he did not consider his observation and information to be medical in nature.  It was something anyone could have noted  and not peculiar to the doctor/patient relationship, he said. The officer later used that evidence in an information to obtain a warrant to seize Ms. Daly's medical records. The trial judge found the above steps to be a Charter breach and she was acquitted. The Crown appealed and the Ontario Superior Court allowed the appeal and ordered a new trial:

The consumption of alcohol is not an intimate detail of Ms Daly’s lifestyle or part of her core biographical data that should be kept out of the hands of the state. R. v. Daly, 2014 ONSC 115