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On March 2, 2013, the Emergency Intervention Disclosure Act, S.B.C. 2012, c. 19, was quietly enacted.  This statute had been on the books since 2012 but not in force.  The purpose of the Act is to authorize the involuntary sampling of bodily fluids where those samples are not being offered voluntarily.  For example, it covers situations such as a police officer or medic being spat on while providing treatment to a homeless drug addict who may have HIV or hepatitis.  The underlying concern is exposure to contagious diseases that may not immediately manifest themselves but that may require immediate preventative treatment. 

The Act was originally met with criticism in the press and from special interest groups, largely on the grounds that it grants overly intrusive powers to violate the privacy and bodily integrity of “source individuals” without any practical benefit.  Most first responders follow safety protocols, including getting vaccinations and peremptory treatment, long before any compelled blood test can be obtained to see whether, in fact, they were exposed to any risk.   

The involuntary testing of a person’s bodily fluids is obtained under a “testing order”.  To get such an order, the applicant must have “come into contact with a bodily substance of another individual” in certain circumstances.  Presently, those circumstances are limited to contact “while providing emergency health services” or while performing duties as a first responder (i.e. firefighters, police, paramedics, etc.).  Additional circumstances can be prescribed by regulation but none have been yet.  There is some suggestion it may be extended to victims of crime.

The application is made to the Provincial Court.  It must be made within 30 days of the alleged contact.  Generally, the “source individual” must be given four days’ notice of the application.  This notice requirement can be waived where it is either “impossible or impracticable”.  To obtain a testing order, it must be proven that:

a)      there are reasonable grounds to believe that the applicant has been exposed to “a pathogen that causes a prescribed communicable disease”;

b)      analyzing the applicant’s bodily fluid will not determine any infection in a timely manner;

c)      obtaining a sample will not endanger the life or health of the source individual;

d)      there is no reasonable alternative to obtain the needed information; and

e)      the testing order is necessary to decrease or eliminate the health risk to the applicant. 

The opinion of a physician on the medical issues is required.  If ordered, the sampling is done by a qualified analyst.  The test results are given to the applicant’s physician and to the source individual’s physician (if they have one).  The test results must remain confidential and there are fines for any breach of confidentiality.

While this legislation makes for good optics and publicity, only time will tell whether it is of any practical benefit.   On its face, it only applies to a limited number of possible applicants.  Similar legislation in Alberta is rarely used.  As a practical matter, it may often be difficult to find the “source individual” to do the testing on, let alone serve them with the application. 

For many people, Susan Heyes is something of a folk hero.  Ms. Heyes is the proprietor of Hazel & Co., a woman’s clothing store formerly located at the corner of 16th Avenue and Cambie Street in Vancouver.  Like many other businesses located along the Cambie Street corridor, Ms. Heyes’ business was adversely affected by the construction of the rapid transit Canada Line which was built in advance of the 2010 Olympics to connect the City of Richmond and the Vancouver International Airport with downtown Vancouver.

While many of the business owners complained publicly about the construction and advocated for compensation, Ms. Heyes launched a lawsuit claiming damages in nuisance from Translink, the public transit authority, and the public private partnership chosen to design, construct and operate the project.  In May 2009, Mr. Justice Pitfield of the B.C. Supreme Court found in favour of Ms. Heyes and awarded her $600,000.00 in damages (2009 BCSC 651).  The Court held that the nuisance stemmed not from the decision to construct the Canada Line but rather the construction method chosen which involved “cut and cover” rather than a bored tunnel which was a viable alternative and which would have caused less disruption.  The decision was hailed by many as a victory for the “little person”.

Unfortunately for Ms. Heyes, her victory was short-lived.  Following the trial decision, Ms. Heyes had a public falling out with her original lawyer over the issue of fees (see Vancouver Sun January 14, 2011).  More recently, on February 18, 2011, the B.C. Court of Appeal allowed Translink’s appeal and set aside the decision in favour of Ms. Heyes (2011 BCCA 77).  While the Court of Appeal agreed with the trial judge that the construction caused a nuisance, it found that the nuisance was authorized by the governing legislation and that therefore the defence of statutory authority applied.  The Court of Appeal disagreed that bored tunnel construction was a viable alternative given that it would have cost approximately one-half billion dollars more than the cut and cover method and that the additional cost exceeded the available funding.  The Court also noted that while the use of bored tunnel construction might have lessened the impacts on Ms. Heyes’ business, it would have had a significant impact elsewhere along the construction line.  As the Court of Appeal noted, some disruption or nuisance was the inevitable result of constructing the Canada Line as authorized by the South Coast British Columbia Transportation Authority Act (previously known as the Greater Vancouver Transportation Authority Act).

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The use of confidential sources by journalists – a topic first sensationalized when Washington Post reporters Bob Woodward and Carl Bernstein broke the Watergate scandal – has remained a vexed issue for courts and legislatures ever since.  In R. v. National Post, 2010 SCC 16, the Supreme Court of Canada recently ruled against a constitutional right to protect confidential sources, finding that it did not form part of the guarantee of freedom of the press under section 2(b) of the Canadian Charter of Rights and Freedoms.

Unlike most cases involving confidential sources, the battle in National Post concerned the production of a piece of physical evidence: a Business Development Bank of Canada document, apparently forged, that purported to show that Prime Minister Jean Chretien had acted in a serious conflict of interest. When McIntosh and the Post refused the police’s request to turn over the document and its envelope, the police sought and obtained a search warrant. The warrant was overturned by the Ontario Superior Court, which found that the disclosure of the document would only advance the investigation “minimally, if at all”, while infringing freedom of expression. That decision was overturned by the Ontario Court of Appeal.

On appeal, a majority of the Supreme Court of Canada upheld the decision of the Ontario Court of Appeal.  The Court rejected arguments that the freedom of expression provisions of section 2(b) of the Charter included a constitutional right to protect sources, and also dismissed the notion of a class privilege, similar to that enjoyed by lawyers and their clients.

Instead, the Court held that the issue should be decided on a case-by-case basis, relying on the following four-part test: (a) the communication originated in a confidence that the source’s identity would not be disclosed; (b) confidentiality was essential to the relationship between journalist and source; (c) the relationship was one that should be “sedulously fostered” (that is, consciously encouraged); and (d) the public interest in protecting the source’s identity outweighed the public interest in getting at the truth.

However, the Court lightened the burden of what the media must prove, emphasizing the value of confidential sources and the importance of protecting their identities in most cases.  The majority reviewed a list of notable stories that relied on such sources and made clear that this was an unusual case and that, generally, courts should be reluctant to order the disclosure of confidential sources.

All in all, it was a mixed blessing for investigative journalism but perhaps the best result that could be hoped for by the media, short of a constitutional right to protect confidential sources.

One of the most highly anticipated cases in British Columbia, and likely the country as a whole, is moving towards a hearing in late November 2010.  In Reference Re: Criminal Code s. 293 the BC Supreme Court is being asked to determine the constitutional validity of the criminal prohibition against polygamy.

The reference case was initiated in October 2009 by the provincial government following a failed attempt to lay charges under s. 293 of the Criminal Code against two individuals, Winston Blackmore and James Oler, in respect of allegedly polygamous activity being carried out in the town of Bountiful, B.C.  For many years, police and public officials were concerned that members of the Fundamental Church of Jesus Christ of Latter Day Saints (FLDS) were engaged in the practice of polygamy in Bountiful.  However, the Criminal Justice Branch consistently declined to approve criminal charges due to concerns that s. 293 could not withstand constitutional challenge on freedom of religion grounds.  That view was endorsed by two different independent special prosecutors appointed by the Attorney General, one of whom recommended a reference as the most appropriate means of determining the constitutionality of s. 293.

Since the reference was launched, there have been numerous procedural skirmishes that will impact upon the manner in which the hearing will finally proceed.  For example, in December 2009, the court approved the appointment of an amicus curiae to make submissions opposing the constitutional validity of s. 293.  In April 2010, the court rejected an application by Winston Blackmore to be granted full party status in the reference and for advance costs.  Instead, Mr. Blackmore was granted “interested person” status that entitles him to appear and make submissions.  In addition to Mr. Blackmore, 12 other interested persons will participate in the reference representing a broad range of interests on both sides of the issue.

Most recently, on September 24, 2010, the court granted an application on behalf of the FLDS that its members be permitted to give evidence anonymously on the ground that they would be testifying about their participation in relationships that might later be determined to be criminal in nature.

The s. 293 reference is somewhat unusual in that it is being heard in the BC Supreme Court as opposed to the Court of Appeal or Supreme Court of Canada and the judge hearing the case, anticipated to be Chief Justice Bauman, will be presented with extensive evidence concerning the practice of polygamy.  Much like the seminal Same Sex Marriage reference case of some years ago, the s. 293 reference has the potential to redefine the institution of marriage within Canadian society and, as such, the case will be followed with considerable interest across the country.  We will continue to monitor and report on key developments as they occur.