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Date:
Docket:
Registry:
20160414
08-14-469
Iqaluit
Respondent:
Applicant:
M.T.
________________________________________________________________________
Before:
Counsel (Respondent):
Counsel (Applicant):
Benjamin Flight
Shannon OConnor
Location Heard:
Date Heard:
Matters:
Iqaluit Nunavut
December 4, 2015; January 29, 2016
Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11, ss. 7, 8, 10(b); Voir Dire;
Common Law: Powers of Police Incident to Arrest
DISCLAIMER PAGE
Anonymized Judgment Disclaimer:
Table of Contents
REASONS FOR JUDGMENT ................................................................................... 1
I. INTRODUCTION........................................................................................................... 4
II. FACTS ........................................................................................................................... 5
III. ISSUES ........................................................................................................................ 6
IV. THE LAW ..................................................................................................................... 6
V. ARGUMENTS .............................................................................................................. 7
A. Applicant ................................................................................................................... 7
B. Respondent .............................................................................................................. 8
VI. ANALYSIS ................................................................................................................... 9
A. Did the warrantless search and seizure of the swab constitute a breach of
sections 7 and 8 of the Charter?................................................................................ 9
B. Did the police violate the applicants section 10 (b) Charter right to counsel?
....................................................................................................................................... 16
VII. CONCLUSION ......................................................................................................... 18
I. INTRODUCTION
[1]
[2]
[3]
The Crown [the respondent] submits that the swab was obtained
lawfully as incident to the arrest of the applicant. Alternatively, the
respondent asserts, among other things, that any Charter breach
does not fit the criteria for the imposition of a stay of proceedings, or
for exclusion of the evidence. Crown counsel also changed during
these proceedings and the second prosecutor filed an amended
written argument. I have read the original written submission, but I
have primarily focused on Mr. Flights oral and written submissions.
[4]
[5]
II. FACTS
[6]
[7]
The applicant spoke to duty defence counsel at about 1:09 a.m. That
call lasted approximately fourteen minutes. Shortly afterward, Cst.
Kerstens told the applicant for the first time that he intended to swab
his penis for evidence. The procedure was explained to the applicant
and it was done in private. The applicants pants and underwear were
lowered only as far as was necessary to facilitate the procedure. The
applicant was allowed to swab himself with a swab moistened with
sterile water. He did so under the Constables guidance and
supervision. The procedure was neither audio nor videotaped. The
swab was seized as evidence and was sent for analysis.
[8]
The parties agree that the search and seizure of the swab at issue
were incidental to a lawful arrest.
III. ISSUES
[9]
Were the applicants section 7 and 8 Charter rights infringed when the
police obtained a swab from him?
[10] Were the applicants section 10(b) Charter rights infringed when the
police demanded the swab only after he had spoken with duty
counsel?
[11] If the answer to either question is yes, what remedies, if any, are
available to the applicant pursuant to section 24(1) of the Charter?
[16] The onus of proof respecting sections 7 and 8 of the Charter lies with
the respondent to prove that the warrantless search was not illegal.
[17] The onus of proof respecting the alleged section 10(b) Charter breach
lies on the applicant.
V. ARGUMENTS
A. Applicant
[18] The crux of the applicants section 8 Charter argument is that the
common law does not permit the police to search for penile swabs
incidental to arrest. Nor, she asserts, should the common law be
extended to permit the seizure of this core DNA. The highly personal
nature of this information is shown by the possibility that swabs could
reveal the DNA not only of the applicant, but also of innocent third
parties who may have previously had consensual sexual relations
with the applicant. She asserts that strict legislative control in this area
is required.
[19] Counsel grounded her application upon the principles enunciated in R
v Stillman, [1997] 1 SCR 607, 113 CCC (3d) 321 [Stillman], and
Saeed. Stillman concerned the non-consensual seizure, from a young
person, of dental impressions, buccal swabs, hair samples, as well as
a tissue used and discarded by the youth. Saeed concerned the
taking of a penile swab from an accused who had been arrested on
an allegation of sexual assault. As I mentioned earlier, leave to appeal
to the Supreme Court of Canada in that case was granted on April 30,
2015. The appeal was argued on December 1, 2015.
[20] Counsel also argued that the search was not conducted reasonably.
The police made no effort to determine whether the applicant had
showered, changed his clothes, or gone to the washroom before he
was arrested. Therefore, the police did not have reasonable and
probable grounds to conduct the search. Counsel asserted that this
approach by the police violated the applicants strong residual
privacy interests. Consequently, the police breached the applicants
section 8 Charter rights.
[21] Furthermore, counsel argued that there was no excuse for the police
to fail to advise the applicant of their intention to conduct this nonroutine procedure before speaking with his lawyer. This was an
egregious failure to respect the law enunciated in R v Sinclair, 2010
SCC 35, 90 WCB (2d) 610 [Sinclair], and a breach of the applicants
section 10(b) Charter right. She noted that the police also failed to file
the requisite Report to Justice until one year and a half had passed.
These two failures of the police to respect the law of the land should
inform the Courts analysis of the unreasonable manner in which the
search was conducted.
[22] At this juncture, counsel says she is not seeking a remedy, but rather
a declaration that the applicants Charter rights were infringed.
B. Respondent
[23] The respondent argued that the taking of a penile swab constitutes a
strip search. He said the search was conducted reasonably as the
police acted in conformity with the requirements set out in R v Golden,
2001 SCC 83, 159 CCC (3d) 449 [Golden], and that these types of
searches are available at common law (R v Harasemow, 2014 BCSC
2287, 16 CR (7th) 32; R v Amey, 2013 ONSC 5108, 108 WCB (2d)
776; Saeed, McDonald, J. in dissent).
[24] The respondent argued further that the police could have sought a
general warrant to search pursuant to section 487.01 of the Criminal
Code, RSC 1985, c C-46 [Criminal Code], but that it was
unnecessary.
[25] In written argument, the respondent stated that the applicants section
10(b) Charter right was not breached. However, in oral argument, he
said the police did breach that right, but that the evidence should be
admitted.
[26] Alternatively, the respondent asserted that a reduction of sentence
upon conviction could be an appropriate Charter remedy.
VI. ANALYSIS
A. Did the warrantless search and seizure of the swab constitute a
breach of sections 7 and 8 of the Charter?
[27] This application turns upon the scope of the common law power
conferred on the police to seize evidence without warrant as incident
to a lawful arrest. There is no suggestion in the present case that the
applicants arrest was unlawful. Nor has any argument been raised
that the search was not incidental to a lawful arrest.
[28] As the applicant relied on Stillman and Saeed, it is necessary to
consider what each case decided. Stillman, as counsel for the
applicant noted correctly, dealt with the seizure without warrant of Mr.
Stillmans own bodily substances. The police took buccal swabs,
samples of his pubic and scalp hair, as well as his dental impressions.
The case made its way to the Supreme Court of Canada where the
majority ruled that the police did not have authority at common law to
seize these categories of samples incident to arrest.
[29] Specifically, counsel cited paragraph 43 of the decision of Cory, J.
writing on behalf of the majority in Stillman. That portion of the
judgment considered Parliaments codification of search and seizure
provisions for a suspects DNA. Of more relevance, I believe, are the
previous portions of Justice Corys judgment:
42 [] It has often been clearly and forcefully expressed that state
interference with a persons bodily integrity is a breach of a persons
privacy and an affront to human dignity. The invasive nature of body
searches demands higher standards of justification[] In addition, La
Forest, J. observed in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 431-32,
the use of a persons body without his consent to obtain information
about him, invades an area of personal privacy essential to the
maintenance of his human dignity. Finally, in R. v. Simmons, [1982]
2 S.C.R. 495, at p. 517, Dickson, C.J. stated:
The third and most highly intrusive type of search is that
sometimes referred to as the body cavity search, in which
customs officers have recourse to medical doctors, to x-rays, to
emetics, and to other highly invasive means.
10
Searches of the third or bodily cavity type may raise entirely
difference constitutional issues for it is obvious that the greater
the intrusion, the greater must be the justification and the
greater the degree of constitutional protection [Emphasis
added].
[30] Central to this analysis is the recognition by Dickson, C.J. that greater
intrusion requires greater constitutional protection. I shall return to that
idea momentarily.
[31] Cory J. addressed the Crowns argument that the taking of dental
impressions was analogous to the routine investigative technique of
fingerprinting. In rejecting that argument, Corey J. cited LaForest, J. in
R v Beare, [1988] 2 SCR 387, [1987] SCJ No 92, on the reduced
expectations of privacy of an accused upon arrest, at paragraph 45:
While some may find [fingerprinting] distasteful, it is insubstantial,
of very short duration, and leaves no lasting impression. There is no
penetration into the body and no substance is removed from it.
11
[34] I now turn to Saeed which considered the taking of a penile swab
incident to arrest and the question of the admissibility of the resultant
DNA analysis.
[35] Writing for the two justice majority in Saeed, Wilson, J. ruled that
Stillman governed the outcome. The majority judges stated:
55 [Stillman] cannot be distinguished on the basis that some of the
seized material there was obtained from within the body, namely the
dental impressions, whereas here the seized material was obtained
from the surface of the body, from the penis. The relevant question is
not whether the seizure occurs from the surface of or from within any
part of the body, but whether the nature of the area from which
material is taken is such that the search and resulting seizure may
infringe upon the persons bodily dignity in such a way as to constitute
the ultimate affront to human dignity[]
62 [] this is an area of the law that must be approached with acute
attention to the rights of the individual even though it must also be
attentive to the quite understandable needs and practicalities of law
enforcement and public protection[]
12
13
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[44] The facts of the present case most closely resemble the
circumstances which surround strip searches as the suspect must
partially undress. There is, of course, the added element that a sterile
swab is applied to the exterior of the suspects genitals once his pants
have been lowered. Seen in this light, it is should be obvious that the
common law principles governing strip searches will apply with due
consideration given to the added application of the sterile swab to the
suspects penis.
[45] The court must balance the interest of the individual to be secure from
arbitrary state interference with his person against the public interest
in securing the safety of police investigators and the preservation of
evidence which otherwise might be lost. As I noted above, a
warrantless search by police of a suspect will survive subsequent
Charter scrutiny by the Court if: it was authorized by law; if the
authorising law is reasonable; and, if the actual search was conducted
reasonably [R v Collins, [1987] 1 SCR 265, [1987] SCJ No 15].
[46] In this case, the parties concede that the applicants arrest was lawful,
and that the search and seizure was incident to his lawful arrest.
Despite the appeal by the Supreme Court of Canada for clear
legislative guidelines in this area, the law respecting strip searches
continues to be that expressed in Golden. I have applied the Golden
factors to the present case, and I have made the following findings of
fact:
a. The applicant had a reduced expectation of privacy having
been arrested lawfully on an allegation of sexual assault;
b. The search and seizure were related directly and logically to
the reason for arrest the police had reasonable and
probable grounds to believe that the DNA of the complainant
would be found on the penis of the applicant;
c. The search was not intended to seize any of the aplicants
bodily substances;
d. The search and seizure were conducted in good faith by the
investigator after he had consulted with the Major Crime Unit
and the Federal Identification Section;
e. The search was conducted at the R.C.M.P. detachment;
f. The search was conducted after the applicant had received
legal advice from duty defence counsel;
g. The search was conducted in private;
h. The search was conducted in the presence of only one
investigator, who was of the same gender as the applicant;
15
16
B. Did the police violate the applicants section 10 (b) Charter right to
counsel?
[50] Counsel for the applicant asserted that the police should have given
the applicant a second chance to consult with his lawyer before
having him submit to the taking of the contested swab. Cited in
support is Sinclair, one of the trilogy of custodial interrogation cases
released by the Supreme Court of Canada at the end of 2010.
Specifically, counsel pointed to the majority judgment authored by the
Chief Justice and Charron, J. where the court stated that non-routine
procedures such as submitting to a polygraph examination or
participation in a line-up will not generally fall within the expectation
of the advising lawyer at the time of the initial Charter section 10(b)
consultation [para 50]. In these situations, the Justices ruled, a
detainee would be entitled to further legal advice. Only in this way
would the detainee be able to make an informed decision whether or
not to co-operate with the police investigation.
[51] Significantly, the Supreme Court in Sinclair highlighted another
situation where the police would be obligated to facilitate further
consultation with counsel: whenever the investigation takes a more
serious turn as events unfold where the initial advice may no longer
be adequate to the actual situation or jeopardy faced by the detainee
[para 51].
[52] The Supreme Court stated further that the category of situations
where further consultation may be required is not closed [para 54].
The applicant invites this Court to extend this protection to this
accused in these circumstances.
[53] Counsel for the applicant reproached the police for not informing the
applicant, before he spoke to duty counsel, of their intention to take
the swab. Sinclair has been the law for over five years, she said, and
police are expected to stay informed of, and to act in accordance with,
developments in the law.
[54] While the respondent took the opposite view in written argument, the
respondent in oral argument conceded that the applicants section
10 (b) Charter right was violated, but that the evidence should be
admitted pursuant to section 24(2) of the Charter.
17
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[59] Having found that the police were permitted under the common law to
search for, and seize, the penile swab incident to the lawful arrest,
they were under no obligation to delay their search until after the
applicant had consulted with counsel. Nor were they required to
advise him of their intentions to do so before he spoke with counsel [R
v Debot, [1989] 2 SCR 1140, [1989] SCJ No 118].
[60] I conclude, therefore, that the police did not breach the applicants
section 10(b) Charter rights by not informing duty defence counsel of
the investigative procedure they intended to employ.
[61] If I am wrong in this Charter analysis, then I would follow the
reasoning of the majority in Saeed and admit the evidence despite
any Charter breach. To exclude the swab and the results of the
forensic testing would, in the words of Wilson, J. in Saeed, contradict
the truth seeking function of the administration of justice in the context
of a very serious offence. Doing so would adversely affect the repute
of justice long term as well as in this case. [para 71]. This ruling
applied the two-part Charter admissibility analysis set out by the
Supreme Court of Canada in R v Grant, 2009 SCC 32, [2009] 2 SCR
353 [Grant].
[62] To admit the evidence in the circumstances of this case would not
signal that this Court will sanction serious police misconduct or
negligence. On the contrary, not to admit the penile swab in this case
would undermine the confidence of Nunavummiut in the
administration of justice. In reaching this conclusion after a Grant
analysis, I have considered that the investigating officer acted in good
faith, the procedure was directly and logically connected to the
reasons for arrest in a very serious case, the search was performed
reasonably, and it was done at a time when there was some case law
affirming the right of the police to act in this fashion.
VII. CONCLUSION
[63] The Court rules that the applicant has not established that the police
violated sections 7, 8, or 10(b) of the Charter when they searched the
applicant incident to his lawful arrest, and when they seized the penile
swab without giving him the opportunity to seek further legal advice.
Therefore, no Charter remedies pursuant to section 24(1) are
available to the applicant.
19
[64] The penile swab and the results of its DNA analysis are admissible as
material and relevant evidence against the applicant at his trial.
___________________
Justice P. Bychok
Nunavut Court of Justice