Criminal Code of Canada - section 256(4)

section 256(4)

INTRODUCTION AND BRIEF DESCRIPTION

Blood samples may only be taken from a person under warrant if a qualified medical practitioner confirms the conditions for the warrant still exist.

SECTION WORDING

256(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.

EXPLANATION

Section 256(4) of the Criminal Code of Canada outlines the specific procedures that must be followed when obtaining a blood sample from a person suspected of committing a crime involving impaired driving. To obtain a blood sample, a warrant must first be issued pursuant to subsection (1) of the same section. This warrant is only valid during the time period in which a qualified medical practitioner determines that certain conditions specified in subparagraphs (1)(b)(i) and (ii) continue to exist in respect of the person suspected of impaired driving. Subparagraph (1)(b)(i) requires that the person be arrested or detained as part of an impaired driving investigation, and subparagraph (1)(b)(ii) requires that the arresting officer suspects that the person has consumed drugs or alcohol that may cause impairment. These conditions must be met in order for the warrant to be obtained, and they must continue to exist for the duration of the blood sample collection process. By including this subsection in the Criminal Code, Canada has ensured that the collection of blood samples is done in a way that protects the rights of individuals suspected of impaired driving. A qualified medical practitioner must be present to oversee the collection of the sample, and the police must have a valid warrant to obtain the sample. This helps to prevent any potential abuses of power or violations of individuals' rights during the course of an impaired driving investigation. Overall, section 256(4) is an important provision within the Criminal Code that helps to ensure that the process of collecting blood samples during impaired driving investigations is done in a way that is lawful and respectful of individuals' rights.

COMMENTARY

Section 256(4) of the Criminal Code of Canada is a crucial legal provision that permits the taking of blood samples from individuals suspected of driving while impaired. The provision outlines the circumstances under which such blood samples can be taken, and the conditions that must exist for the warrant to be valid. Essentially, this provision plays an essential role in ensuring that the process of obtaining blood samples is lawful, fair, and just. The primary purpose of Section 256(4) is to protect the rights of individuals suspected of driving under the influence of drugs or alcohol. The section requires a warrant to be obtained before the blood sample is taken, and this warrant can only be issued by a judge or justice of the peace in Canada. This means that the legality of the warrant and the blood sample taken is guaranteed, as the decision was made by an independent judicial officer. Moreover, the section also requires that a qualified medical practitioner must be present when the sample is being taken. This is because drawing blood is a medical procedure that requires caution and expertise. The presence of a medical practitioner ensures that the process is carried out safely and without any undue harm to the person whose blood is being taken. The medical practitioner is also responsible for ensuring that the individual is in a state that makes taking the sample possible. The two conditions referred to in subparagraphs (1)(b)(i) and (ii) are critical to the validity of the warrant and the sample taken. The first condition implies that the person's ability to operate the vehicle is impaired by a drug or alcohol. This condition ensures that the warrant is not based on conjecture or speculation but is founded on evidence that indicates that the person may have committed an offence. The second condition refers to the time frame within which the warrant can be issued and the sample taken. It states that the person must have operated a vehicle within the last three hours to be considered under the influence of drugs or alcohol. The condition ensures that the warrant and sample are taken at a time when there is a reasonable chance that the person was driving while impaired. In conclusion, Section 256(4) of the Criminal Code of Canada serves as an important legal provision that protects the rights of individuals suspected of driving while impaired. It ensures that blood samples are taken lawfully, and the process is carried out in a manner that is fair and just. The provision also guarantees that the evidence collected is reliable and admissible in court, thus serving the ultimate goal of ensuring public safety and accountability.

STRATEGY

Section 256(4) of the Criminal Code of Canada can present significant strategic challenges in criminal cases involving impaired driving or other offenses that require a sample of blood to be taken from a suspect. The section places important constraints on the authorities that are issuing warrants and performing blood tests, and these constraints can be used to the advantage of both defense and prosecution counsel. One of the primary strategic considerations when dealing with section 256(4) is timing. The section specifies that blood samples can only be taken during the period when a qualified medical practitioner is satisfied that the conditions outlined in subparagraphs (1)(b)(i) and (ii) continue to exist. This means that there is a limited window of opportunity where a warrant can be successfully executed and a valid blood sample obtained. For defense counsel, this presents an opportunity to carefully scrutinize the timing of the warrant and the blood test. If it can be shown that the test was performed outside of the permissible period, or that there was no reasonable basis for the medical practitioner to conclude that the conditions continued to exist, then the validity of the test and the resulting evidence may be called into question. Prosecution counsel, on the other hand, may wish to ensure that they can get blood samples as quickly as possible, before the conditions referred to in subparagraphs (1)(b)(i) and (ii) change. This may require careful consultation with medical professionals and other experts to determine the optimal timing of the warrant and the test. Another strategic consideration when dealing with section 256(4) is the qualifications of the medical practitioner who will be performing the blood test. The section requires that the practitioner be qualified, which may mean having specific training or certification in the collection and handling of blood samples. This presents an opportunity for both defense and prosecution counsel to scrutinize the qualifications of the practitioner to ensure that they are valid and up-to-date. For defense counsel, this may mean arguing that the medical practitioner was not sufficiently qualified to perform the test and that the evidence obtained should not be admissible in court. Prosecution counsel, on the other hand, may wish to ensure that the practitioner has all the necessary credentials and experience to perform the test effectively. A final strategic consideration when dealing with section 256(4) is the collection and handling of the blood samples themselves. The section specifies that the samples must be taken in accordance with established medical practices and that they must be handled and preserved in a way that preserves their integrity. This presents an opportunity for both defense and prosecution counsel to scrutinize the procedures used to collect and handle the samples to ensure that they were conducted properly. For defense counsel, this may mean arguing that the procedures used were improper or that the samples were handled in a way that compromised their integrity. Prosecution counsel, on the other hand, may wish to ensure that the procedures used were consistent with medical best practices and that the samples were preserved in a way that guarantees their reliability in court. Overall, the strategic considerations when dealing with section 256(4) of the Criminal Code of Canada require a careful understanding of the law and of the nuances of blood testing procedures. Both defense and prosecution counsel must be prepared to carefully scrutinize the timing, qualifications, and handling of blood samples in order to ensure that the evidence obtained is admissible and reliable in court.