Supreme Court Judgments

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R. v. Stillman, [1997] 1 S.C.R. 607

 

William Wayne Dale Stillman                                                           Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and

 

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General of Nova Scotia,

the Attorney General of British Columbia,

the Attorney General for Saskatchewan,

the Attorney General for Alberta,

the Law Union of Ontario,

the Canadian Civil Liberties Association,

the Criminal Lawyers’ Association (Ontario),

and the Association québécoise des avocats

et avocates de la défense                                                                  Interveners

 

Indexed as:  R. v. Stillman

 

File No.:  24631.

 

*1996:  January 26.

 

*Present:  Lamer C.J. and L’Heureux‑Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

 

**Rehearing:  1996:  November 7; 1997:  March 20.

 


**Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for new brunswick

 

Criminal law ‑‑ Power of search incidental to arrest ‑‑ Scope of power ‑‑ Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody ‑‑ Whether common law power incidental to arrest can be extended to permit seizure of bodily samples and impressions.

 

Constitutional law ‑‑ Charter of Rights  ‑‑ Search and seizure ‑‑ Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody ‑‑ Whether accused’s right against unreasonable search and seizure infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 8 .

 

Constitutional law ‑‑ Charter of Rights  ‑‑ Search and seizure ‑‑ Accused in custody not consenting to taking of any bodily samples ‑‑ Police seizing from wastebasket in police station discarded tissue used by accused to blow his nose ‑‑ Whether accused’s right against unreasonable search and seizure infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 8 .

 

Constitutional law ‑‑ Charter of Rights  ‑‑ Security of person ‑‑ Fundamental justice ‑‑ Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody ‑‑ Whether accused’s right to security of person infringed in manner not consistent with principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, s. 7 .

 


Constitutional law ‑‑ Charter of Rights  ‑‑ Admissibility of evidence ‑‑ Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody ‑‑ Police also seizing from wastebasket in police station discarded tissue used by accused to blow his nose ‑‑ Whether evidence obtained in violation of accused’s Charter  rights ‑‑ If so, whether evidence should be excluded ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .

 

Constitutional law ‑‑ Charter of Rights  ‑‑ Admissibility of evidence ‑‑ Proper approach to s. 24(2)  of Canadian Charter of Rights and Freedoms  when evidence affects fairness of trial ‑‑ Whether such evidence must be excluded regardless of other factors.

 


The accused, who was 17 years old at the time, was arrested in 1991 for the brutal murder of a teenage girl.  He was the last person seen with the victim on the night of the  crime.  He arrived at his home around midnight, cold, shaken and wet from the upper thighs down.  He was cut above one eye, and had mud and grass on his pants.  He explained that he had been in a fight with five Indians but this explanation, as well as his account of where he had last seen the victim, varied over time. The victim died from wounds to the head.  Semen was found in her vagina and a human bite mark had been left on her abdomen.  At the police station, the accused’s lawyers informed the police by letter that the accused was not consenting to provide any bodily samples, including hair and teeth imprints, or to give any statements.   Once the lawyers left, police officers took, under threat of force, scalp hair samples from the accused and he was made to pull some of his own pubic hair.  Plasticine teeth impressions were also taken.  A police officer then interviewed the accused for an hour in an attempt to obtain a statement.  The accused sobbed throughout the interview and, after being permitted to call his lawyer, he went to the washroom escorted by an officer where he used a tissue to blow his nose.  He threw the tissue in the wastebasket.  The tissue containing mucous was seized by the officer and used for DNA testing.  The accused was subsequently  released but was arrested again several months later.  At that time, a dentist took new impressions of the accused’s teeth without his consent in a procedure lasting two hours.  More hair was taken from the accused, as well as a saliva sample and buccal swabs.

 

Following a voir dire held to determine the admissibility of certain evidence, the trial judge found that the hair samples, buccal  swabs and teeth impressions had been obtained in violation of s. 8  of the Canadian Charter of Rights and Freedoms  but concluded that the evidence was nevertheless admissible.  With respect to the tissue containing mucous, he found that it had not been obtained in violation of s. 8  and should thus be admitted.  The accused was later convicted by a jury of first degree murder.  The majority of the Court of Appeal upheld the trial judge’s ruling and affirmed the verdict.

 

Held (L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting):  The appeal should be allowed and a new trial ordered at which the hair samples, buccal swabs and dental impressions should be excluded.

 


Per Lamer C.J. and La Forest, Sopinka, Cory and Iacobucci JJ.:  The taking of the hair samples, buccal swabs and teeth impressions infringed s. 8  of the Charter .  The bodily samples and impressions were not seized pursuant to the Criminal Code , which  at the time of the accused’s arrest did not authorize the search of a person or the seizure of parts of the body. Nor were they seized pursuant to the common law power of search incidental to a lawful arrest.  The accused’s arrest was lawful since the police officers, subjectively,  were under the impression that they had reasonable and probable grounds to believe that the accused had committed the murder and, from an objective point of view, there were good and sufficient grounds for the officers to have reached that conclusion.  However, the common law power of search incidental to arrest  does not extend beyond the purpose of protecting the arresting officer from armed or dangerous  suspects or of preserving evidence that may go out of existence or be otherwise lost.   The search conducted in this case went far beyond the typical “frisk” search which usually accompanies an arrest.  The taking of  bodily samples and the making of dental impressions were highly intrusive.  Further, despite the Young Offenders Act requirements that a parent or counsel be present when a suspected young offender is being interviewed, in the absence of any adult counsellor and contrary to the specific instruction of his lawyers the police interviewed the accused at length and by threat of force took bodily samples and dental impressions.  This was the abusive exercise of raw physical authority by the police.  The common law power of search incidental to arrest cannot be so broad as to encompass the seizure without valid statutory authority of bodily samples in the face of a refusal to provide them. These samples are usually in no danger of disappearing.  If that power is so broad, then the common law rule itself is unreasonable, since it is too broad and fails to properly balance the competing rights involved.  It is clear in this case that the accused’s right to be free from unreasonable search and seizure was seriously violated.  Since the search and seizure of the bodily samples was not authorized by either statutory or common law it could not have been reasonable.

 

The taking of the hair samples, buccal swabs and dental impressions also infringed s. 7  of the Charter  since it violated the right to security of the person in a manner not consistent with the principles of fundamental justice.  It was the ultimate invasion of the accused’s privacy and breached the sanctity of the body which is essential to the maintenance of human dignity.  Police actions taken without consent or authority which intrude upon an individual’s body in more than a minimal fashion violate s. 7 .

 


The taking of the discarded tissue  infringed s. 8  of the Charter .  Where an accused who is not in custody discards an item offering potentially valuable DNA evidence, the police may ordinarily collect and test the item without any concern about consent  since, in the circumstances, the accused abandoned the item and ceased to have a reasonable expectation of privacy in it.  The situation is different, however,  when an accused is in custody.  Whether the circumstances are such that an accused abandoned an item and relinquished any privacy interest in it will have to be determined on the particular facts presented in each case.  Here, the accused had announced through his lawyers that he would not consent to the taking of any samples of his bodily fluids.  The police were aware of his decision but nevertheless took possession of the tissue discarded by the accused while he was in custody.  In these circumstances the seizure was unreasonable.  The accused’s expectation of privacy in this instance, although lower after his arrest, was not so low as to permit the seizure of the tissue.  The privacy expectation should not be reduced to such an extent as to justify seizures of bodily samples without consent, particularly for those who are detained while they are still presumed to be innocent.

 


The primary aim and purpose of considering the trial fairness factor in the s. 24(2)  analysis is to prevent an accused person whose Charter  rights have been infringed from being forced or conscripted to provide evidence in the form of confessions, statements or bodily samples for the benefit of the state.  Thus,  when the trial fairness factor is being considered, it is necessary to classify the evidence as conscriptive or non‑conscriptive based upon the manner in which the evidence was obtained.  If the accused was not compelled to participate in the creation or discovery of the evidence, the evidence will be classified as non‑conscriptive.  Its admission will not render the trial unfair and the court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.   If the evidence, obtained in a manner which violates the Charter , involved the accused being compelled to incriminate himself either by a statement or by the use as evidence of his body or of bodily substances, it will be classified as conscriptive evidence.  The unauthorized use of a person’s body or bodily substances is just as much compelled “testimony” that could render the trial unfair as is a compelled statement.  The security of the body is thus as worthy of protection from state intrusion aimed at compelled self‑incrimination as are statements.  If  the evidence is found to be conscriptive evidence, which in the case of statements includes derivative evidence, and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non‑conscriptive means ‑‑ where an independent source exists or discovery was inevitable ‑‑  then its admission will generally not render the trial unfair.  However, the seriousness of the Charter  breach and the effect of exclusion on the repute of the administration of justice will have to be considered.  If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non‑conscriptive means, then its admission will render the trial unfair.  The court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice.  This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.

 


Here, in considering how the admission of the evidence would affect the fairness of the trial, the trial judge erred in concluding that the hair samples, saliva  and dental impressions existed independently of any Charter  breach and were thus admissible.  The accused’s bodily samples and impressions existed as “real” evidence but the police, by their words and actions, compelled the accused to provide evidence from his body.  This evidence constituted conscriptive evidence.  The impugned evidence would not have been discovered had it not been for the conscription of the accused in violation of his Charter  rights and no independent source existed by which the police could have obtained the evidence.  It follows that its admission would render the trial unfair.  This finding is sufficient to resolve the s. 24(2)  issue as the evidence must be excluded.

 

In any event,  the Charter  violations  pursuant to which this evidence was obtained were of a very serious nature.  The police acted with blatant disregard for the fundamental rights of the accused.  Notwithstanding his express refusal to provide bodily samples or to give a statement, the police purposely waited until his lawyers had left to proceed, through the use of force, threats and coercion, to take his bodily samples and to interrogate him in an effort to obtain a statement.  The police were also aware that the accused was a young offender at the time, and that he was entitled to the special protection provided by the Young Offenders Act.   Finally, the fact that the police rode roughshod over a young offender’s refusal to provide his bodily samples would certainly shock the conscience of all fair minded members of the community.  The admission of the evidence would thus bring the administration of justice into disrepute.

 

The tissue containing the mucous, however, should not be excluded.  The police did not force, or even request, a mucous sample from the accused.  Although the police acted surreptitiously in disregard for the accused’s explicit refusal to provide them with bodily samples, the violation of the accused’s Charter  rights with respect to the tissue was not serious.  The seizure did not interfere with the accused’s bodily integrity, nor cause him any loss of dignity.  In any event, the police could and would have obtained the discarded tissue.  It was discoverable and the administration of justice would not be brought into disrepute if the evidence obtained from the mucous sample were to be admitted.

 


Per Major  J.:  Cory J.’s reasons excluding the conscripted evidence obtained from hair samples, buccal swabs and dental impressions were agreed with. The tissue containing the mucous sample, however, was not obtained in violation of s. 8  of the Charter . The accused voluntarily and intentionally threw the tissue into the washroom wastebasket in full view of the officer.  By doing so he abandoned the tissue, and lost any expectation of privacy he might have had in regard to it.  Consent is not an issue where evidence is abandoned even when the accused is in custody.  Where there is no reasonable expectation of privacy, there is no search, and no requirement of informed consent.  Since no violation of the Charter  occurred with regard to the tissue, there is no need to enter into a s. 24(2)  inquiry.

 

Per McLachlin J. (dissenting): The taking of bodily samples falls to be decided under s. 8  of the Charter , not under s. 7 Section 7  of the Charter  does not purport to enlarge the common law principle against self‑incrimination.  The common law as adopted and applied in Canada confined the principle of fundamental justice known as the principle against self‑incrimination to testimonial evidence.  For good and principled reasons, this principle has never extended to physical or “real” evidence.  It follows that the principle against self‑incrimination which may be read by inference into s. 7  does not apply to real evidence,  except in the case of  real evidence derivative from testimonial evidence which would not have been discovered but for the accused’s involuntary testimony.  All other real evidence falls to be treated under the guarantee against unreasonable search and seizure in s. 8 .  To hold otherwise would extend the principle of self‑incrimination not only beyond its recognized ambit in Canada, but beyond its limits in comparable justice systems throughout the world.

 


The taking of the accused’s hair samples, buccal swabs and dental impressions violated s. 8  of the Charter .  While the common law permits relatively non‑intrusive procedures to take evidence from a suspect in custody for purposes of identification,  the invasiveness of the searches and seizures leading to the taking of the bodily samples and dental impressions, and the seriousness of the incursion on his privacy and dignity they entailed, place them outside the scope of lawful search incidental to arrest.  No emergency was alleged in this case and the searches were not necessary to protect the immediate safety of the police or the public.

 

The taking of the tissue, however, did not violate s. 8 .  In discarding the tissue,  the accused abandoned it and lost any privacy interest in the tissue that he may have had.  The taking of the tissue was not a search and the requirement of the accused’s consent did not apply.  Although the tissue was taken while the accused was in custody, his right not to incriminate himself was not violated since the privilege against self‑incrimination does not apply to real evidence.  Unless it is derivative from testimonial evidence, real evidence falls to be considered under the rubric of search and seizure.  While it is true that the samples may necessarily be created as a result of the arrest and detention, the fact remains that the bodily state to which they attest and which gives them their significance is not created by the detention.  It has a real existence apart from the detention, which merely provides an opportunity to ascertain that bodily state.

 


The test for the admission of evidence where a Charter  breach is alleged requires the judge to conduct a two‑part inquiry.  The first step is to determine whether the evidence was taken in a manner which infringed the accused’s Charter  rights.  If so, the judge must go on to consider whether, as a result of the infringement, the evidence should be excluded under s. 24(2)  of the Charter Section 24(2)  introduces a balancing process.  The judge must consider  all the circumstances of the case and, in light of them, balance the effect of admitting the evidence on the repute of the administration of justice against the effect of rejecting it.  In the end the judge must ask which will better serve the repute of the system of justice on the particular facts of the case ‑‑ admission or exclusion.  The three classes of factors set out in Collins ‑‑ factors relevant to the (1) fairness of the trial, (2) seriousness of the violation, and (3) effect of excluding the evidence ‑‑ are simply a convenient way of considering the various “circumstances” which may need to be taken into account in a particular case.  The first two groups relate to disrepute to the administration of justice which may arise from admission, the third group to disrepute which may arise from exclusion of the evidence.  So long as all are considered, the balancing task imposed by s. 24(2)  will be discharged.

 

The framers of the Charter  did not intend s. 24(2)  to act as an automatic exclusionary or quasi‑exclusionary rule and, accordingly, the view that any evidence which affects the fairness of the trial must be excluded under s. 24(2)  should be  rejected.  First, it runs counter to the spirit and wording of s. 24(2) , which requires that judges in all cases balance all factors which may affect the repute of the administration of justice, and elevates the factor of trial unfairness to a dominant and in many cases conclusive status.  Second, it rests on an expanded and erroneous concept of self‑incrimination or conscription which equates any non‑consensual participation by or use of the accused’s body in evidence gathering with trial unfairness.  Third, it erroneously assumes that anything that affects trial fairness automatically renders the trial so fundamentally unfair that other factors can never outweigh the unfairness, with the result that it becomes unnecessary to consider other factors.

 


Here,  the trial judge made a careful review of all relevant factors, applied s. 24(2)  in the fashion directed in Collins and concluded that the accused’s hair, buccal swabs and dental impressions taken contrary to s. 8  of the Charter  were admissible under s. 24(2)  ‑‑ a conclusion affirmed by the majority of the Court of Appeal.  Where the courts below have properly considered all the factors relevant to the s. 24(2)  determination, this Court will not interfere.  In any event,  when all the circumstances are considered together, it cannot be concluded that the trial judge and the majority of the Court of Appeal erred in finding that the exclusion of the evidence would do more harm to the repute of the administration of justice than its admission.

 

Since the taking of the tissue did not violate s. 8  of the Charter , it is unnecessary to consider its admissibility under s. 24(2) .

 


Per L’Heureux‑Dubé J. (dissenting): For the reasons given by Cory J., the arrest was a lawful one.  While the search and seizure at issue was clearly not necessary in order to protect the accused, the police or the public,  they were authorized by law under the common law search power incidental to arrest. The right to secure evidence as an incident of arrest does not depend on the existence of urgency or exigent circumstances and may extend to the taking of bodily samples and impressions. The following guidelines strike a proper balance between society’s interest in detecting and punishing crime and the individual’s interests in personal privacy and autonomy over his own body where the taking of bodily samples or impressions occurs as an incident to arrest:   (1) the police must exercise their discretion to conduct the search given all of the circumstances; (2) the search must be for a valid objective in pursuit of the ends of criminal justice without running counter to the general objectives of the proper administration of justice;  (3) consideration must be given to the intrusiveness involved in the search:  the more intrusive, the higher the threshold for finding that the taking of bodily samples or impressions is both justified and conducted in a reasonable manner in given circumstances; (4) the police must have reasonable and probable grounds to conduct the search; (5) the search must be predicated on sufficiently important circumstances; those circumstances will generally be established where: (a) it is impracticable to obtain a warrant to secure the desired evidence; (b) such evidence cannot be obtained by a less intrusive means; (c) there is no alternative evidence available; (d) the offence for which the arrest was made is a serious one; and (e) public policy is served by the type of search at issue.  Finally, the manner in which the search is conducted must not be abusive or unreasonable given the totality of the circumstances.  A search which does not comply with these requirements could be characterized as unreasonable at common law as well as under s. 8  of the Charter . The determination of whether a search occurred legally as an incident to arrest will depend upon a balancing of these factors.

 


Here,  the search and seizure of the evidence at issue was legal as incidental to arrest and conducted in a reasonable manner in the circumstances of this case given the seriousness of the offence as well as the unavailability of any legal authorization procedure at the time of the accused’s arrest.  The evidence indicates that the police believed that, in all of the circumstances, it was necessary to obtain bodily substances and dental impressions from the accused in order to apply the law effectively. They could not have proceeded with the murder charge without the DNA evidence or the bite‑mark analysis of his teeth impressions.  The search and seizure took place in order to achieve a valid objective ‑‑ the discovery of evidence which could have either incriminated or established the innocence of the accused.  The type of search and seizure at issue constituted minimal affronts to the accused’s bodily integrity.  Although the taking of pubic hair and the making of dental impressions are more intrusive, on the whole, given that the accused was made to pull out some of his own pubic hair himself and that the dental impressions were made by a dentist according to professional standards, the taking of those specimens is not of such an offensive character in the present circumstances that it would constitute an unreasonable search. In this regard, the accused’s refusal to provide any bodily substance and the absence of his lawyers while the specimens were seized are irrelevant in assessing whether the police reasonably exercised their power of search incidental to arrest.  Once a search is found to fall within the scope of such power, the police may, in accordance with these guidelines, proceed to search a lawfully arrested person.  As well, while the accused’s bodily substances and teeth impressions could have been obtained later, this is not a relevant consideration.  Further, the police had reasonable and probable grounds for taking bodily samples and dental impressions, given the results of the victim’s autopsy which revealed semen in her vagina and a human bite mark on her abdomen.  The evidence discloses circumstances of sufficient importance to justify the taking.  The police could not have obtained a warrant to secure the type of evidence they sought and the accused’s hair, saliva and dental impressions could not have been obtained by less intrusive means.  Given the absence of any witness to the murder, there was no alternative evidence that the accused committed this serious offence.   Finally, public policy is served by the type of search at issue.  Where indicia such as bodily fluids or a human bite mark are found on the victim’s body, the possibility of resorting to DNA typing analysis or forensic odontology serves society’s substantial interest in deterring such crimes.  Since there was no breach of the accused’s s. 8  Charter  rights in the obtention of the evidence, such evidence was admissible at trial.

 

Given the conclusion that the manner in which the police obtained the evidence was, in fact, lawful, it follows that the search was also in accord with the principles of fundamental justice and did not violate s. 7  of the Charter .

 

The tissue containing the mucous  was not obtained in violation of s. 8  of the Charter  since the accused could not claim any right of privacy in this specimen.  Consequently, this evidence was also admissible at trial.

 


Although it is not necessary to deal with s. 24(2)  of the Charter , there is general agreement with McLachlin J.’s analysis.  The classification of evidence under the trial fairness aspect of the s. 24(2)  analysis in terms of “non‑conscriptive ‘real’ evidence” and “conscriptive evidence”, which includes “derivative evidence”, with their possible extension to all kinds of unforeseen situations, is an unfortunate development.  Trial fairness concern arises solely where the accused is compelled as a result of a Charter  breach to participate in the creation or discovery of evidence which tends to establish his guilt by his own admission, or based upon his own communication.  Evidence which affects the fairness of the trial must not inevitably be excluded under s. 24(2) .  A proper consideration of “all the circumstances” demands a balancing of each set of factors set out in Collins.

 

Per Gonthier J. (dissenting):  The reasons of L’Heureux‑Dubé J. were concurred in.  There is also agreement with the reasons of McLachlin J. as to the scope of the principle of self‑incrimination and the proper analytical approach to the determination of admissibility of evidence under s. 24(2)  of the Charter .

 

Cases Cited

 

By Cory J.

 


Applied:  R. v. Legere (1988), 89 N.B.R. (2d) 361; R. v. Paul (1994), 155 N.B.R. (2d) 195; not followed:  Schmerber v. California, 384 U.S. 757 (1966); referred to:  R. v. Collins, [1987] 1 S.C.R. 265; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Duguay, Murphy and Sevigny (1985), 18 C.C.C. (3d) 289, aff’d on other grounds, [1989] 1 S.C.R. 93; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Leigh v. Cole (1853), 6 Cox C.C. 329; Bessell v. Wilson (1853), 1 El. & Bl. 489, 118 E.R. 518; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136; R. v. Speid (1991), 8 C.R.R. (2d) 383, leave to appeal refused, [1992] 1 S.C.R. xi; R. v. Smellie (1994), 95 C.C.C. (3d) 9, leave to appeal refused, [1995] 2 S.C.R. ix; R. v. Belnavis (1996), 107 C.C.C. (3d) 195; R. v. Alderton (1985), 17 C.C.C. (3d) 204; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Borden, [1994] 3 S.C.R. 145; R. v. LeBlanc (1981), 64 C.C.C. (2d) 31; R. v. Love, [1994] A.J. No. 847 (QL), aff’d (1995), 102 C.C.C. (3d) 393; R. v. Arp, [1995] B.C.J. No. 882 (QL); R. v. Legere (1994), 95 C.C.C. (3d) 139; R. v. Titian, B.C.S.C., Victoria Reg. No. 70624, May 26, 1994, unreported; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Wiley, [1993] 3 S.C.R. 263; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Wijesinha, [1995] 3 S.C.R. 422; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Black, [1989] 2 S.C.R. 138; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Harper, [1994] 3 S.C.R. 343; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Kokesch, [1990] 3 S.C.R. 3.

 

By Major J.

 

Referred to:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. LeBlanc (1981), 64 C.C.C. (2d) 31; R. v. Mellenthin, [1992] 3 S.C.R. 615.

 

By McLachlin J. (dissenting)

 


R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Hebert, [1990] 2 S.C.R. 151; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Hogan v. The Queen, [1975] 2 S.C.R. 574; Attorney General for Quebec v. Bégin, [1955] S.C.R. 593; Validity of Section 92(4) of the Vehicles Act, 1957 (Sask.), [1958] S.C.R. 608; R. v. Nikolovski, [1996] 3 R.C.S. 1197; R. v. Black, [1989] 2 S.C.R. 138; Holt v. United States, 218 U.S. 245 (1910); Schmerber v. California, 384 U.S. 757 (1966); King v. McLellan, [1974] V.R. 773; Sorby v. Commonwealth of Australia (1983), 152 C.L.R. 281; Howard v. Bates (1994), 72 A. Crim. R. 96; Kuruma v. The Queen, [1955] A.C. 197; Adair v. M’Garry, [1933] S.L.T. 482; R. v. Buckingham (1943), 86 C.C.C. 76; R. v. Hayward (1957), 118 C.C.C. 365; R. v. Nowakowski (1977), 40 C.R.N.S. 144; R. v. McLarty (No. 2) (1978), 40 C.C.C. (2d) 72; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. LeBlanc (1981), 64 C.C.C. (2d) 31; R. v. Love, [1994] A.J. No. 847 (QL), aff’d (1995), 102 C.C.C. (3d) 393; R. v. Arp, [1995] B.C.J. No. 882 (QL); R. v. Legere (1994), 95 C.C.C. (3d) 139; R. v. Titian, B.C.S.C., Victoria Reg. No. 70624, May 26, 1994, unreported; R. v. Mellenthin, [1992] 3 S.C.R.  615; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wiley, [1993] 3 S.C.R. 263; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Elshaw, [1991] 3 S.C.R. 24; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Terry, [1996] 2 S.C.R. 207; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. Duguay, [1989] 1 S.C.R. 93.

 

By L’Heureux‑Dubé J. (dissenting)

 


Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Alderton (1985), 17 C.C.C. (3d) 204; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Legere (1988), 89 N.B.R. (2d) 361; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Smellie (1994), 95 C.C.C. (3d) 9, leave to appeal refused, [1995] 2 S.C.R. ix; R. v. Garcia (1992), 72 C.C.C. (3d) 240; R. v. Lerke (1986), 49 C.R. (3d) 324; R. v. Morrison (1987), 58 C.R. (3d) 63; R. v. Miller (1987), 38 C.C.C. (3d) 252; R. v. Debot (1986), 54 C.R. (3d) 120, aff’d [1989] 2 S.C.R. 1140; R. v. Rao (1984), 12 C.C.C. (3d) 97; R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136; R. v. Schweir, [1993] O.J. No. 3404 (QL); United States v. Weir, 657 F.2d 1005 (1981); Ewing v. State, 310 N.E.2d 571 (1974); Spence v. State, 795 S.W.2d 743 (1990); State v. Cobb, 243 S.E.2d 759 (1978); R. v. Morin (1995), 37 C.R. (4th) 395; R. v. Brezack (1949), 96 C.C.C. 97; Reynen v. Antonenko (1975), 20 C.C.C. (2d) 342; Scott v. The Queen (1975), 24 C.C.C. (2d) 261; R. v. Truchanek (1984), 39 C.R. (3d) 137; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Simmons, [1988] 2 S.C.R. 495; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Burlingham, [1995] 2 S.C.R. 206.

 

Statutes and Regulations Cited

 

Bill C‑104, Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis), 1st Sess., 35th Parl., June 22, 1995, 1994‑95.

 

Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 10 (b), 24(2) .

 

Constitution of the United States, Fifth Amendment.

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 487.05  [ad. 1995, c. 27, s. 1], 487.06(1) [idem].

 

Criminal Justice and Public Order Act 1994 (U.K.), 1994, c. 33, s. 35.

 

Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60.

 

Young Offenders Act, R.S.C., 1985, c. Y‑1, s. 56(2) (c), (d).

 


Authors Cited

 

Archibald, Bruce P.  “The Law of Arrest”.  In Vincent M. Del Buono, ed., Criminal Procedure in Canada: Studies.  Toronto:  Butterworths, 1982, 125.

 

Béliveau, Pierre, Jacques Bellemare and Jean‑Pierre Lussier.  On Criminal Procedure. Montréal:  Yvon Blais, 1982.

 

Canada.  Law Reform Commission.  Report 25.  Obtaining Forensic Evidence.  Ottawa: The Commission, 1985.

 

Canada.  House of Commons Debates, vol. 133, No. 224, 1st Sess., 35th Parl., p. 14489.

 

Chayko, G. M., E. D. Gulliver and D. V. Macdougall. Forensic Evidence in Canada. Aurora, Ont.:  Canada Law Book, 1991.

 

Cohen, Stanley A.  “Search Incident to Arrest” (1989‑90), 32 Crim. L.Q. 366.

 

Herman, Lawrence.  “The Unexplored Relationship Between the Privilege Against Compulsory Self‑Incrimination and the Involuntary Confession Rule (Part I)” (1992), 53 Ohio St. L.J. 101.

 

Hogg, Peter W.  Constitutional Law of Canada, 3rd ed.  Scarborough, Ont.:  Carswell, 1992.

 

LaFave, Wayne R.  Search and Seizure:  A Treatise on the Fourth Amendment, vol. 3, 3rd ed.  St. Paul, Minn.:  West Publishing Co., 1996.

 

Mitchell, Gerard E.  “The Supreme Court of Canada on the Exclusion of Evidence in Criminal Cases under Section 24  of the Charter ” (1987‑88), 30 Crim. L.Q. 165.

 

Paciocco, David M.  “Self‑Incrimination:  Removing the Coffin Nails” (1989), 35 McGill L.J. 73.

 

Paciocco, David M.  “The Judicial Repeal of s. 24(2)  and the Development of the Canadian Exclusionary Rule” (1989‑90), 32 Crim. L.Q. 326.

 

Salhany, Roger E.  Canadian Criminal Procedure, 6th ed. Aurora, Ont.:  Canada Law Book, 1994 (loose‑leaf updated February 1996, release No. 4).

 

Salhany, Roger E.  The Police Manual of Arrest, Seizure & Interrogation, 6th ed. Scarborough, Ont.:  Carswell, 1994.

 

Stuart, Don.  “Burlingham and Silveira:  New Charter Standards to Control Police Manipulation and Exclusion of Evidence” (1995), 38 C.R. (4th) 386.

 

Stuart, Don.  “Questioning the Discoverability Doctrine in Section 24(2)  Rulings” (1996), 48 C.R. (4th) 351.

 

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton.  Boston:  Little, Brown & Co., 1961.


 

 

APPEAL from a judgment of the New Brunswick Court of Appeal (1995), 159 N.B.R. (2d) 321, 409 A.P.R. 321, 97 C.C.C. (3d) 164, dismissing the accused’s appeal from his conviction for first degree murder.  Appeal allowed and new trial ordered, L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.

 

J. C. Marc Richard and Christa A. Bourque, for the appellant.

 

Graham J. Sleeth, Q.C., and John J. Walsh, for the respondent.

 

S. R. Fainstein, Q.C., and George Dolhai, for the intervener the Attorney General of Canada.

 

Renee M. Pomerance, for the intervener the Attorney General for Ontario.

 

Jacques Gauvin, for the intervener the Attorney General of Quebec.

 

William D. Delaney, for the intervener the Attorney General of Nova Scotia.

 

William F. Ehrcke, for the intervener the Attorney General of British Columbia.

 

Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.

 

Jack Watson, Q.C., for the intervener the Attorney General for Alberta.


Michael Code, for the intervener the Law Union of Ontario.

 

Kent Roach, for the intervener the Canadian Civil Liberties Association.

 

Scott K. Fenton, for the intervener the Criminal Lawyers’ Association (Ontario).

 

Guy Cournoyer, for the intervener the Association québécoise des avocats et avocates de la défense.

 

//Cory J.//

 

The judgment of Lamer C.J. and La Forest, Sopinka, Cory and Iacobucci JJ. was delivered by

 

1                        Cory J. -- On this appeal there are two major issues which must be considered.  First, what should be the scope and the appropriate limits of the common law power to search which is incidental to an arrest?  Second, in what circumstances should evidence obtained as a result of a breach of a Charter  right be ruled inadmissible on the grounds that its admission would render the trial unfair?

 

I.  Factual Background

 


2                                   On the evening of April 12, 1991, a group of seven teenagers gathered in the Oromocto area, in New Brunswick.  They walked to a camp in the woods where they drank beer and wine and shared some LSD.  Between 8:00 p.m. and 8:30 p.m. the 17‑year‑old appellant, William Stillman, and the 14‑year‑old victim, Pamela Bischoff, left the group.  When he arrived at his home between 11:45 p.m. and midnight, the appellant was obviously cold, shaken and wet from the upper thighs down.  He was cut above one eye, and had mud and grass on his pants.  The explanation he gave for his condition was that he had been in a fight with five Indians.  This explanation, as well as his account of where he had last seen the victim, varied over time.

 

3                                   The victim’s body was found six days later in the Oromocto River next to a bridge some 300 to 400 metres from where she had last been seen by the group.  An expert placed the time of death between 10:30 p.m. and 11:30 p.m. on April 12, 1991.  A motorist and his passenger saw Pamela on the bridge with a male companion around 10:15 p.m.  Between 11:45 p.m. and midnight, another motorist positively identified the appellant, walking on a public road that led to the bridge.  Mud was observed on the appellant’s pants from above the knees down to his feet.

 

4                                   The autopsy revealed that the cause of death was not drowning but rather a wound or wounds to the head.  Semen was found in the victim’s vagina and a human bite mark had been left on her abdomen.

 

5                                   On April 19, 1991, the appellant was arrested for the murder of Pamela Bischoff.  At the time of the arrest, the appellant retained counsel.  He was transported to the RCMP headquarters in Fredericton where he was met by his lawyers.  The police indicated that they wished to take hair samples and teeth impressions and to question the appellant.  After spending over two hours with the appellant, the two lawyers gave a letter to the police which read as follows:

 

This is to confirm that Bryan Whittaker and I are representing the above young person who we understand has been arrested for murder.

 


This is to confirm that we have advised this young person that he is not to consent to provide any bodily samples whatsoever including hair and or teeth imprints to you or anybody else.

 

This is also to confirm that he has been advised not to give any statements to you or anyone else concerning your investigation into the death of Pam Bischoff.  He is not to talk to you at all without one of the undersigned being present.

 

6                                   Notwithstanding this statement of intention, once the lawyers left, the RCMP took bodily samples from the appellant, under threat of force.  A sergeant took scalp hair samples by passing a gloved hand through the appellant’s hair, as well as by combing, clipping and plucking hairs.  The appellant was made to pull some of his own pubic hair.  Plasticine teeth impressions were then taken.

 

7                                   Then, in the absence of the appellant’s parents or his lawyers, a constable interviewed the appellant for an hour in an attempt to obtain a statement.  Although the appellant did not say anything, he sobbed throughout the interview.  The appellant asked to speak to his lawyer, at which point the interview ended and he was permitted to make the telephone call.  While waiting for his lawyer to arrive, the appellant asked to use the washroom.  Escorted by the constable, he did so.  As the appellant was leaving the washroom, he used a tissue to blow his nose and threw the tissue in the waste bin.  The tissue containing mucous was seized by the constable and subsequently used for DNA testing.

 


8                                   When the appellant’s lawyer arrived at the headquarters he objected to the actions taken by the RCMP with respect to the appellant.  Yet, after the lawyer left, the sergeant brought the appellant into an interview room and, once again, attempted to obtain a statement.  The police thought that they had enough evidence to charge the appellant, but the Crown’s office disagreed.  Accordingly, five days after the arrest, the appellant was released without being charged.

 

9                                   Several months later, after they had received the DNA and odontology analysis, the RCMP again arrested the appellant.  This action was taken in part in order to obtain better impressions of the appellant’s teeth.  A dentist attended at the RCMP detachment for that purpose and, without the appellant’s consent, took impressions of his teeth, in a procedure which took two hours.  More hair was taken from the appellant, as well as a saliva sample and buccal swabs.

 

10                               In mid‑February 1993 a voir dire was held to determine the admissibility of certain evidence:  [1993] N.B.J. No. 625 (Q.B.).  The trial judge found that the hair samples, teeth impressions and buccal swabs had been obtained in a manner which violated the appellant’s Charter  rights, but that the evidence should be admitted.  He found that the tissue containing mucous had not been obtained in a manner which violated the appellant’s Charter  rights.

 

11                               The appellant was convicted, by a jury, of first degree murder and sentenced to life imprisonment with no eligibility for parole for eight years.  The majority of the Court of Appeal of New Brunswick dismissed the appeal but Rice J.A. dissenting, would have allowed the appeal and ordered a new trial, on the ground that the evidence should have been excluded pursuant to s. 24(2)  of the Canadian Charter of Rights and Freedoms :  (1995), 159 N.B.R. (2d) 321, 409 A.P.R. 321, 97 C.C.C. (3d) 164.  The appellant now appeals as of right to this Court.

 


II.  Decisions Below

 

A.  Court of Queen’s Bench of New Brunswick (voir dire)

 

12                               The trial judge found that the bodily samples, which were taken as soon as possible, were seized as part of the search which was a necessary incident to the arrest.  The preliminary findings from the autopsy required further investigation.  As a result, Russell J. found that there were reasonable grounds for the police to arrest the appellant, as well as reasonable grounds to demand pulled hair and to take dental impressions as quickly as possible in order to resolve the questions raised by the autopsy.  He felt that “seizures undertaken following arrest” ranged across a spectrum from extracting blood or pumping a stomach at one end to a simple hair seizure at the other, and that at some point a particular type of seizure could become repugnant.  Wherever the cutoff line might be he found that it was not crossed here.

 

13                               He considered the letter cautioning the police not to take samples from the accused and found that the appellant’s participation was non‑consensual.  Since the samples were taken against his will, and there was no statutory or other authorization which permitted the police to take the samples, he concluded that the seizures violated the appellant’s right to be free from unreasonable search and seizure.

 


14                               The trial judge then considered the criteria set out in R. v. Collins, [1987] 1 S.C.R. 265.  He held that:  the bodily samples were real evidence which existed independently of the Charter  breach; the police had a right to seize samples from the appellant as incident to the arrest; the infringement was as minor as possible; and that the police had acted in good faith.  The trial judge was satisfied that the appellant would not be deprived of a fair trial if the evidence were to be admitted.  He was also of the view that to admit the seized samples, photographs and impressions would not operate so as to condone unacceptable investigatory conduct and that the refusal to admit the evidence flowing from the seizures would bring the administration of justice into greater disrepute than its admission.

 

15                               With respect to the seizure of the tissue from the garbage, Russell J. found that the appellant had abandoned the tissue and ceased to have a reasonable expectation of privacy in it.  There did not exist a sufficient nexus between the questioning of the appellant and the disposal of the tissue to conclude that its seizure violated the appellant’s s. 8  Charter  right, particularly since it was an incidental occurrence.  Russell J. concluded that the tissue was properly taken and that the evidence flowing from that seizure would be admitted.

 

B.  Court of Appeal of New Brunswick

 

(1)  per Hoyt C.J.N.B. (Ayles J.A. concurring)

 

16                               On the issue of the discarded tissue, Hoyt C.J.N.B. agreed with the trial judge that no Charter  right had been violated by its seizure.  He held that when the appellant voluntarily discarded the tissue, which was not being sought by the police, he ceased to have any privacy right in it.  As a result no Charter  right was violated and s. 24(2)  of the Charter  did not come into play.

 


17                               With respect to the other items, Hoyt C.J.N.B. agreed with the trial judge that the appellant’s s. 8  Charter  right was violated.  He also agreed that the evidence was properly admitted despite the violation.  Hoyt C.J.N.B. found that the trial judge had duly reviewed the second group of factors, including the police conduct, and considered to what extent the admission of evidence would condone unacceptable police behaviour.  While the appellant did not consent to providing samples, the police took the samples in a manner which constituted a minimal affront to the appellant’s dignity.  No force had been used and there was no resistance from the appellant.  Hoyt C.J.N.B. held that counsel’s letter to the police requesting them not to take samples cannot be determinative, as the police cannot be required to curtail a criminal investigation by such a letter.  In his view, the trial judge had properly taken into account the letter and the seriousness of the charge against the appellant in arriving at his decision to admit the evidence.

 

18                               The majority of the Court of Appeal found that the trial judge had not made an error as to the applicable principles or rules of law.  Accordingly, it would be inappropriate for the court to undertake an independent analysis with respect to the application of s. 24(2)  of the Charter .

 

(2)  per Rice J.A. (dissenting)

 

19                               Rice J.A. held that the trial judge had erred in his application of the jurisprudence pertaining to the permissible scope of a search and seizure that was incidental to an arrest.  He agreed with the trial judge that the appellant’s Charter  rights had been breached, but he did so for different reasons.  Rice J.A. noted that a search incidental to an arrest was a discretionary power to be used for disarming a suspect or gathering evidence which might otherwise be lost.  In this case there was a total absence of exigent circumstances to substantiate the exercise of the “powers incidental to an arrest”.  This common law power does not empower the state to gather evidence by taking parts of the accused’s body or by taking dental impressions.

 


20                               Where neither legislative nor common law authority exists for a search and seizure, it is generally ruled to be illegal and prima facie unreasonable and contrary to the Charter .  Given the absence of authorization in this case, the interference with the appellant’s body constituted a flagrant violation of his privacy and human dignity.

 

21                               Rice J.A. also found the seizure of the tissue to be in breach of the appellant’s Charter  rights.  The appellant had clearly refused to give the police any bodily specimens.  This surreptitious appropriation of samples while the appellant was in the control of the state constituted a breach of the Charter .  The circumstances presented in this case should be contrasted with those situations in which an accused parted with specimens while not under the control of the state and in circumstances where he had not explicitly refused to provide the samples.

 

22                               Rice J.A. concluded that to admit the evidence would bring the administration of justice into disrepute:  the Charter  violation was serious; the authorities utterly disregarded the decision in R. v. Legere (1988), 89 N.B.R. (2d) 361 (C.A.), which held that plucking a person’s hair without his consent constituted a breach of ss. 7  and 8  of the Charter ; the violations resulted in the appellant incriminating himself; at least part of the evidence could have been obtained in some other way; and the evidence was gathered through the stealthy use of the act of arrest.

 

III.  Relevant Statutory Provisions

 

23                               Canadian Charter of Rights and Freedoms 

 

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.


8.  Everyone has the right to be secure against unreasonable search or seizure.

 

24.  . . .

 

(2)  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.

 

Criminal Code, R.S.C., 1985, c. C‑46 

 

487.05 (1)  A provincial court judge who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe

 

(a)  that a designated offence has been committed,

 

(b)  that a bodily substance has been found

 

(i)  at the place where the offence was committed,

 

(ii)  on or within the body of the victim of the offence,

 

(iii)  on anything worn or carried by the victim at the time when the offence was committed, or

 

(iv)  on or within the body of any person or thing or at any place associated with the commission of the offence,

 

(c)  that a person was a party to the offence, and

 

(d)  that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person

 

and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in writing authorizing a peace officer to obtain, or cause to be obtained under the direction of the peace officer, a bodily substance from that person, by means of an investigative procedure described in subsection 487.06(1), for the purpose of forensic DNA analysis.

 

Young Offenders Act, R.S.C., 1985, c. Y‑1 

 

56.  . . .


(2)  No oral or written statement given by a young person to a peace officer or other person who is, in law, a person in authority is admissible against the young person unless

 

                                                                   . . .

 

(c)  the young person has, before the statement was made, been given a reasonable opportunity to consult with counsel or a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person; and

 

(d)  where the young person consults any person pursuant to paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

 

IV.  Issues on Appeal

 

24                               The issues are as follows:

 

1.    Did the majority of the Court of Appeal of New Brunswick err in law in holding that the search by way of teeth impressions, hair samples and buccal swabs, but not the seizure of the discarded tissue, infringed the appellant’s rights as guaranteed by the Charter ?

 

2.    Did the majority of the Court of Appeal of New Brunswick err in holding that the evidence obtained in a manner which infringed the appellant’s rights and freedoms should not be excluded pursuant to s. 24(2)  of the Charter ?

 


V.  Analysis

 

A.                Was any of the Impugned Evidence Obtained in a Manner that Infringed or Denied the Appellant’s Charter  Rights?

 

(1)  The Hair Samples, Teeth Impressions and Buccal Swabs

 

(a)   Did the Taking of the Hair Samples, Teeth Impressions and Buccal Swabs Contravene Section 8 of the Charter ?

 

25                               There are three requirements which must be met if a search is to be found reasonable:  (a) it must be authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable:  see Collins, supra, at p. 278.  An appropriate starting point, therefore, is to determine whether there existed either a statutory or common law power that authorized the police to search and seize the appellant’s scalp hairs and pubic hairs or to take dental impressions or buccal swabs.

 

26                               At the time that this seizure occurred in 1991, the Criminal Code  only provided a procedure for obtaining a warrant to search a “building, receptacle or place”.  It did not authorize the search of a person, nor the seizure of parts of the body.  It is only with the recent addition of s. 487.05  that this limitation has been removed to the extent of its provisions.  Therefore, the taking of hair and teeth samples was conducted without statutory authority.  The respondent can justify these searches only by demonstrating that they were authorized by a common law power or that the appellant had no reasonable expectation of privacy in the things seized.  To this end, the respondent asserts that the hair samples and teeth impressions were seized pursuant to the common law power of search incident to a lawful arrest.


 

(i)  The Common Law Power of Search Incident to a Lawful Arrest

 

27                               Three conditions must be satisfied in order for a search to be validly undertaken pursuant to the common law power of search incident to a lawful arrest.  First, the arrest must be lawful.  No search, no matter how reasonable, may be upheld under this common law power where the arrest which gave rise to it was arbitrary or otherwise unlawful.  Second, the search must have been conducted as an “incident” to the lawful arrest.  To these almost self‑evident conditions must be added a third, which applies to all searches undertaken by police: the manner in which the search is carried out must be reasonable. Were all three criteria satisfied in this instance?

 

Was the Arrest Lawful?

 

28                               For the arrest to have been lawful, the police officers must have subjectively believed that there were reasonable and probable grounds on which to  arrest the appellant.  As well, those grounds must have been reasonable and probable when viewed objectively.  However, the standard is not so high as to require the police to establish a prima facie case for a conviction before making the arrest:  see R. v. Storrey, [1990] 1 S.C.R. 241.

 


29                               During the voir dire, the officers admitted that, at the time of the appellant’s arrest, they did not have enough evidence to charge him with murder.  They thought his bodily fluids were needed in order to perform a DNA analysis which would then give them the necessary grounds to proceed with the murder charge.  However, one sergeant testified that they believed they certainly had sufficient grounds to arrest the appellant and bring him in for questioning.  He also acknowledged that the sole purpose of the arrest was to obtain evidence from him and to question him.

 

30                               The Ontario Court of Appeal decision in R. v. Duguay, Murphy and Sevigny (1985), 18 C.C.C. (3d) 289, aff’d on other grounds [1989] 1 S.C.R. 93, has been held to stand for the proposition that police officers, lacking reasonable and probable grounds to connect the suspect to the commission of the crime, cannot make an arrest solely to assist in the investigation.  However, the circumstances of this case are very different.  They are more akin to the situation presented in Storrey, supra, where the police did have reasonable and probable grounds for making an arrest, but continued their investigation afterwards.  In that case, it was held at p. 253 that Duguay, supra:

 

. . .goes no further than confirming that an otherwise unlawful arrest cannot be justified on the grounds that it was necessary in order to further the investigation of the crime.  It should not be taken as establishing a principle that whenever a lawful arrest is made, in circumstances where the police intend to do further investigation, that the arrest should then be considered to have been made for an improper purpose.

 


31                               The statements made by the officers involved in the investigation reveal that, subjectively, they were under the impression that they had reasonable and probable grounds to believe that the appellant had committed the murder.  I am also satisfied that, from an objective point of view, there were good and sufficient grounds for the officers to have reached that conclusion.  The supporting facts can be summarized in this way:  (a) the appellant was the last person seen with the deceased on the evening of her disappearance; (b) he could not, or at least did not, account for his whereabouts between 9:00 p.m. and 11:30 p.m. on that evening when he returned to his residence; (c) when the appellant returned home he was wet and cold, his clothes were muddy and he had a scratch over his eye and blood on his face consistent with having been in a scuffle.  When the deceased’s body was found she appeared to have been physically beaten; (d) the appellant claimed to have been in a fight with some “Indians” but this story changed over time; (e) the appellant’s worried and disturbed  reaction to the police helicopter which was searching the river close to where the deceased was found; (f) immediately following the appellant’s observation of the helicopter he left a suicide note and fled; (g) the appellant made a statement to Constable Cole saying, “I tried to stop her from killing herself.  I left her there.”; and (h) the RCMP received a report from two motorists that they had seen the deceased on the bridge crossing the Oromocto River and that she was with a male who met the description of the appellant.

 

32                               In the result, both the subjective and objective requirements were met and the arrest was  lawful.  It must now be ascertained whether the various searches and seizures were conducted as “incidents” to this lawful arrest.

 

Were the Seizures of the Hair Samples, Teeth Impressions and Buccal Swabs Made “Incidental” to the Arrest?

 

The Scope of the Common Law Power of Search Incident to Arrest

 


33                               In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, it was held that a search conducted without prior authorization is presumptively unreasonable.  However, the long‑standing  power of search incident to arrest is an exception to this general rule: see Leigh v. Cole (1853), 6 Cox C.C. 329, and Bessell v. Wilson (1853), 1 El. & Bl. 489, 118 E.R. 518 (Q.B.).  The original rationale for this power was based on (i) the need for the arresting officers to prevent the escape of the person arrested and to protect themselves by removing from the person arrested any weapon or tool that might facilitate escape and (ii) the need to prevent evidence under the control of the detainee from being destroyed.  The common law power is eminently sensible and is essential for the protection of police officers carrying out their all too often dangerous duties.  Yet, reasonable limits of that power have been defined to avoid abuses.

 

34                               In Cloutier v. Langlois, [1990] 1 S.C.R. 158, the scope of the common law power of search upon lawful arrest was considered by this Court for the first time.  The case established that such a search does not require reasonable and probable grounds beyond the grounds that were sufficient to support the lawfulness of the arrest itself.  The reasons set out three limitations to the common law power.  First, the power is a discretionary one and in certain circumstances the officer may properly exercise his or her discretion not to conduct a search.  Second, the search must be for a valid objective in pursuit of the ends of criminal justice.  Third, the search must not be conducted in an abusive fashion.

 

35                               Following Cloutier v. Langlois, the courts gradually broadened the common law power of search incident to arrest.  In R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136 (Ont. H.C.), at p. 145, the scope of the power was extended to include evidence beyond that which might be destroyed by the detainee.  Doherty J. stated that, in his view:

 

. . .in Canada, the justification for a warrantless search as an incident of arrest goes beyond the preservation of evidence from destruction at the hands of the arrested person to include the prompt and effective discovery and preservation of evidence relevant to the guilt or innocence of the arrested person.

 


36                               The common law power was further expanded in R. v. Speid (1991), 8 C.R.R. (2d) 383 (Ont. C.A.), leave to appeal to S.C.C. denied May 7, 1992, [1992] 1 S.C.R. xi.  In that case, a justice of the peace refused to issue a warrant for a search.  The police officers then arrested the accused so that they could nevertheless proceed with a search.  The Ontario Court of Appeal extended Lim, supra, to hold that the police were entitled to search the car driven by the accused since it was still in the immediate vicinity of the arrest even though the search was not undertaken immediately upon the arrest.

 

37                               In R. v. Smellie (1994), 95 C.C.C. (3d) 9 (leave to appeal to S.C.C. denied June 8, 1995, [1995] 2 S.C.R. ix), the British Columbia Court of Appeal expressed agreement with the proposition set out in Lim, namely, that the power of search incidental to arrest is not limited to cases of necessity.

 

38                               In R. v. Belnavis (1996), 107 C.C.C. (3d) 195 (Ont. C.A.), Doherty J.A. carefully considered the powers of search incidental to arrest.  He found that the arrest for outstanding traffic fines did not authorize the search of the trunk of a vehicle.  I agree with his reasoning and conclusion on this issue.

 

39                               It is important to recognize that these cases, which purport to expand the common law power of search incidental to arrest, involve less intrusive searches of motor vehicles and the seizure of evidence found in them.  This type of search is not in issue in this case and I need not express any opinion with regard to them.  Obviously, completely different concerns arise where the search and seizure infringes upon a person’s bodily integrity, which may constitute the ultimate affront to human dignity.

 

40                               The question of whether or not the common law power of search incident to arrest can be extended to permit the seizure of bodily substances has recently been considered by provincial appellate courts, with conflicting results.  In R. v. Alderton (1985), 17 C.C.C. (3d) 204, the Ontario Court of Appeal held at p. 208 that the seizure of scalp hair samples from the accused did not violate s. 8  of the Charter , as

 


[i]t  is settled law that following a valid arrest a police officer may search the person arrested and may seize anything that he reasonably believes will afford evidence of the commission of the offence with which the person arrested is charged and of the arrested person’s connection with it.

 

41                               Conversely, in the more recent case of Legere, supra, the point was made that since the police cannot enter a person’s house to look for hairs without a warrant, they should not be entitled, as part of their investigation, to take hair from an individual they have just arrested.  It was concluded that, on the facts of that case, the hair samples were not seized as an incident to arrest.  Angers J.A., writing for the court, stated, at p. 379, that, “the forcible taking of parts of a person, in the absence of legislation authorizing such acts, is an infringement of the right to security of the person and constitutes an unreasonable seizure”.  This position was affirmed in R. v. Paul (1994), 155 N.B.R. (2d) 195 (C.A.), where Hoyt C.J.N.B. stated, at p. 203, that:

 

Searches made incidentally to an arrest are justified so that the arresting officer can be assured that the person arrested is not armed or dangerous and seizures are justified to preserve evidence that may go out of existence or be otherwise lost.  As neither circumstance existed here, the Crown cannot rely on a power that is incidental to an arrest to justify seizure of the hair samples. . . .  In my opinion, the power to search and seize does not extend beyond those purposes.

 


42                               I agree with that position.  It has often been clearly and forcefully expressed that state interference with a person’s bodily integrity is a breach of a person’s privacy and an affront to human dignity.  The invasive nature of body searches demands higher standards of justification.  In R. v. Pohoretsky, [1987] 1 S.C.R. 945, at p. 949, Lamer J., as he then was, noted that, “a violation of the sanctity of a person’s body is much more serious than that of his office or even of his home”.  In addition, La Forest J. observed in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431‑32, “the use of a person’s 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, [1988] 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.

 

Searches of the third or bodily cavity type may raise entirely different 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.

 

43                               It is certainly significant that Parliament has recently amended the Criminal Code , through the addition of s. 487.05 , so as to create a warrant procedure for the seizure of certain bodily substances for the purposes of DNA testing.  This suggests that Parliament has recognized the intrusive nature of seizing bodily samples.  The section requires that the police have reasonable and probable grounds, as well as authorization from a judicial officer, before they can make such seizures.  If this type of invasive search and seizure came within the common law power of search incident to arrest, it would not have been necessary for the government to create a parallel procedure for the police to follow.  In my view, it would be contrary to authority to say that this is no more than a codification of the common law.

 

(ii)  Application to the Facts of this Case

 


44                               While the appellant was not subjected to a body “cavity” search, the search conducted went far beyond the typical “frisk” search which usually accompanies an arrest.  Sergeant Kennedy passed his gloved hand through the appellant’s hair to remove some hair, combed some more out, and clipped and pulled out still more.  The appellant was then made to pull hair from his own pubic area.  A dentist was called in to take the appellant’s teeth impressions and buccal swabs.  All this was without the appellant’s consent and despite his protests.  The dental procedure involved the placing of several instruments and various substances into the appellant’s mouth.  As well, photographs and a video were taken of his mouth.  The whole procedure took two hours.

 

45                               Counsel for the respondent argued that the taking of dental impressions was analogous to the routine practice of fingerprinting.  The case of R. v. Beare, [1988] 2 S.C.R. 387, was cited as support for the proposition that the common law allowed for the use of such identification procedures upon arrest.  In that case, La Forest J. noted that the reduced privacy expectation upon arrest justifies the fingerprinting.  However, he added this important qualification at p. 413:

 

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.

 

46                               How very different is the making of dental impressions.  It is a lengthy and highly intrusive process.  Further, the taking of the scalp and pubic hair samples involved the forceful removal of hair from the body over the specific objections of the accused.  Significantly, in R. v. Borden, [1994] 3 S.C.R. 145, it was found that where there is no statutory authorization for the seizure of bodily samples, consent must be obtained if the seizure is to be lawful.  Here the police knew they were dealing with a young offender. They were aware that the Young Offenders Act required that a parent or counsel should be present when a suspected young offender was being interviewed.  Nonetheless, in the absence of any adult counsellor and contrary to the specific instruction of his lawyers, the police interviewed the appellant at length and by threat of force took bodily samples and dental impressions.  This was the abusive exercise of raw physical authority by the police.


 

47                               No matter what may be the pressing temptations to obtain evidence from a person the police believe to be guilty of a terrible crime, and no matter what the past frustrations to their investigations, the police authority to search as an incident to arrest should not be exceeded.  Any other conclusion could all too easily lead to police abuses in the name of the good of society as perceived by the officers.  When they are carrying out their duties as highly respected and admired agents of the state they must respect the dignity and bodily integrity of all who are arrested.  The treatment meted out by agents of the state to even the least deserving individual will often indicate the treatment that all citizens of the state may ultimately expect.  Appropriate limits to the power of search incidental to arrest must be accepted and respected.

 

48                               The power to search and seize incidental to arrest was a pragmatic extension to the power of arrest.  Obviously the police must be able to protect themselves from attack by the accused who has weapons concealed on his person or close at hand.  The police must be able to collect and preserve evidence located at the site of the arrest or in a nearby motor vehicle.  As Rice J.A. put it in his dissenting reasons (at p. 360 N.B.R.):

 

The power to search and seize incidental to an arrest is predicated on pragmatic and exigent considerations inherent to the circumstances of an arrest.

 


49                               The common law power cannot be so broad as to empower police officers to seize bodily samples.  They are usually in no danger of disappearing.  Here, there was no likelihood that the appellant’s teeth impressions would change, nor that his hair follicles would present a different DNA profile with the passage of time.  There was simply no possibility of the evidence sought being destroyed if it was not seized immediately.  It should be remembered that one of the limitations to the common law power articulated in Cloutier v. Langlois, supra, was the discretionary aspect of the power and that it should not be abusive.  The common law power of search incidental to arrest cannot be so broad as to encompass the seizure without valid statutory authority of bodily samples in the face of a refusal to provide them.  If it is, then the common law rule itself is unreasonable, since it is too broad and fails to properly balance the competing rights involved.

 

50                               It is clear that the appellant’s right to be free from unreasonable search and seizure was very seriously violated.  Since the search and seizure of the bodily samples was not authorized by either statutory or common law it could not have been reasonable. It is thus unnecessary to consider either the reasonableness of the law or the manner in which the search was conducted.

 

(b)  Did the Taking of the Hair Samples, Teeth Impressions and Buccal Swabs Contravene Section 7 of the Charter ?

 

51                               The taking of the dental impressions, hair samples and buccal swabs from the accused also contravened the appellant’s s. 7  Charter  right to security of the person.  The taking of the bodily samples was highly intrusive.  It violated the sanctity of the body which is essential to the maintenance of human dignity.  It was the ultimate invasion of the appellant’s privacy.  See Pohoretsky, supra.  In Dyment, supra, at pp. 431‑32, La Forest J. emphasized that “the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity”.  Quite simply, the taking of the samples without authorization violated the appellant’s right to security of his person and contravened the principles of fundamental justice.

 


(2)  The Discarded Tissue

 

(a)   Did the Taking of the Discarded Tissue Contravene Section 8 of the Charter ?

 

52                               The appellant had advised the police, through the letter from his lawyers, that he refused to provide any bodily samples whatsoever.  Despite this express refusal, the police seized a tissue, used by the appellant to blow his nose, from the garbage bin in the washroom of the RCMP headquarters.  In other words, the police obtained surreptitiously that which the appellant had refused to provide them voluntarily; namely a sample from which his DNA profile could be obtained.

 

53                               The majority of the Court of Appeal found that when the appellant discarded the unwanted tissue he abandoned it and in so doing, ceased to have a reasonable expectation of privacy in it.  In Dyment, supra, the concept of “abandoning” something in which one usually has a privacy expectation was considered.  Reference was made to the case of R. v. LeBlanc (1981), 64 C.C.C. (2d) 31 (N.B.C.A.), by way of illustration.  There, the police, after taking the accused to hospital, obtained a sample of his blood from the front seat of the vehicle.  The court held that the police were “gathering” as opposed to seizing the evidence.  The accused was said to have abandoned his blood and, in the result, ceased to have a reasonable expectation of privacy with regard to it.

 


54                               That situation was contrasted with the facts presented in Dyment where the doctor who treated the appellant gave the police a sample of the appellant’s blood, which he had taken for medical purposes, without the appellant’s knowledge or consent.  It was found that the appellant retained an expectation of privacy in the sample which continued past the time of its taking and therefore, in seizing the sample, the officer breached the appellant’s privacy interests.

 

55                               There have been a number of cases supporting the proposition that, where a suspect or an accused, while in the presence of the police, discards an item offering potentially valuable DNA evidence, the officers may “gather” that evidence and it will not be considered an unlawful seizure.  In R. v. Love, [1994] A.J. No. 847 (Q.B.), the RCMP conducted an undercover operation with the aim of obtaining bodily samples from the accused.  On one occasion, the undercover officer and the accused were in a motel.  When the officer saw the accused blow his nose and throw the tissue in the garbage can, he retrieved it and submitted it for testing.  In admitting the evidence, Cairns J., of the Alberta Court of Queen’s Bench, held (at para. 102) that “[t]he retrieval of the tissue paper from the newly lined garbage can did not amount to a seizure from the accused ‑‑ he had discarded the tissue paper ‑‑ and the policeman simply retrieved what I would describe as ‘potentially valuable waste’”.  The Court of Appeal agreed that the seizure of the tissue did not involve a Charter  breach:  (1995), 102 C.C.C. (3d) 393.

 

56                               A further example of this reasoning can be found in R. v. Arp, [1995] B.C.J. No. 882 (S.C.).  In that case, following an interview of the accused at the police station, a constable returned to the interview room and gathered the cigarette butts which the accused had discarded in an ashtray provided by the police.  The court held that the accused had abandoned the evidence and, in the circumstances, had no reasonable expectation of privacy with respect to these items:  see also R. v. Legere (1994), 95 C.C.C. (3d) 139 (N.B.C.A.); R. v. Titian, B.C.S.C., Victoria Reg. No.70624, May 26, 1994 (Warren J.), unreported.

 


57                               In the instant case, counsel for the respondent argued that the mucous sample was obtained by “happenstance”, that it was “purely an accidental happening and was not being sought by the police”.  Counsel for the respondent submitted further that:

 

Not only is this not a case where the police engineered the taking it is not even a case where the police, by design, deliberately afforded themselves the opportunity to make such observations.  What the police did was take advantage of an otherwise unforeseen occurrence.  [Emphasis in original.]

 

58                               The difficulty with this argument is that when an accused person is in custody, the production of bodily samples is not an unforeseen occurrence.  It is simply the inevitable consequence of the normal functioning of the human body.  The police are only able to profit from the production of the samples because the accused is continuously under their surveillance.  For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody.

 


59                               The appellant had been arrested at the time the tissue was seized, and was being detained.  He had exercised his right to refuse to provide the police with bodily samples for the purposes of DNA analysis.  Without that consent, the police had no right to take these samples from him.  However, in the course of his five‑day detention, it is reasonable to presume that, among other things, the appellant would blow his nose, use the toilet, possibly cut himself and bleed, and eat from a spoon.  In other words, through “happenstance” the police would be able to take advantage of the appellant’s imprisonment to obtain all the samples they needed, but which they could not legally seize in the absence of a valid search warrant.  In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples?  He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”.

 

60                               R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 624, set out the requirements for a consent to be considered valid in the context of a search and seizure.  Specifically it is, “incumbent upon the Crown to adduce evidence that the person detained had indeed made an informed consent to the search based upon an awareness of his rights to refuse to respond to the questions or to consent to the search” (emphasis added).  It follows that for consent to be validly given, the accused must have the ability to prevent the police from conducting a search or seizure by withholding his consent.  Where the accused is in custody, his announced refusal to consent to providing bodily samples becomes meaningless if, because he is incarcerated,  he cannot prevent those samples from being taken.

 

61                               Obviously an accused person will have a lower expectation of privacy following his or her arrest and subsequent custody.  That expectation of privacy will be even lower when serving a sentence after conviction.  Therefore, it may well be that certain kinds of searches and seizures may validly be performed on a person in custody which could not validly be performed on persons who have not yet been arrested or convicted.  Nevertheless, I am of the view that the appellant’s expectation of privacy in this instance, although lower after his arrest, was not so low as to permit the seizure of the tissue.  The privacy expectation should not be reduced to such an extent as to justify seizures of bodily samples without consent, particularly for those who are detained while they are still presumed to be innocent.

 


62                               Thus, where an accused who is not in custody discards a kleenex or cigarette butt, the police may ordinarily collect and test these items without any concern about consent.  A different situation is presented when an accused in custody discards items containing bodily fluids.  Obviously an accused in custody cannot prevent the authorities from taking possession of these items.  Whether the circumstances were such that the accused had abandoned the items and relinquished any privacy interest in them will have to be determined on the particular facts presented in each case.

 

63                               However, in this case, the accused had announced through his lawyers that he would not consent to the taking of any samples of his bodily fluids.  The police were aware of his decision.  Despite this they took possession of the tissue discarded by the appellant while he was in custody.  In these circumstances the seizure was unreasonable and violated the appellant’s s. 8  Charter  rights.

 

(b)  Did the Taking of the Discarded Tissue Contravene Sections 7 and 10(b) of the Charter ?

 

64                               The appellant raised the alternative argument that it was the conduct of the RCMP officers, which violated the appellant’s ss. 7  and 10 (b) Charter  rights, which, in turn, made possible the seizure of the tissue.  Notwithstanding the appellant’s refusal to speak to the police without one of his counsel present, the police persisted in questioning him after his lawyers left.  It was argued that it was in the context of this wilful disregard of the appellant’s right to have the questioning cease, or to have his lawyer present, as required by s. 56(2)(d) of the Young Offenders Act, that the police were able to obtain this self‑incriminating evidence from him.  The appellant advanced the position that were it not for the police having interrogated him for an hour, he would not have sobbed and therefore, would not have needed to blow his nose.


 

65                               It is difficult for me to accept that the seizure of the tissue resulted in a breach of either s. 7  or s. 10 (b) of the Charter .  However, as I have already found that the seizure of the tissue constituted a s. 8  Charter  violation there is no need to consider this alternative argument.

 

66                               It is now necessary to consider whether the lower courts were correct in admitting the evidence of the hair samples, dental impressions and tissue containing mucous pursuant to the provisions of s. 24(2)  of the Charter .

 

B.  Section 24(2)  of the Charter 

 

(1)  The Hair Samples, Dental Impressions and Buccal Swabs

 

67                               It is clear that the seizures of the hair samples, dental impressions and buccal swabs violated s. 8  of the Charter .  In my view, they also breached s. 7  since they violated the right to security of the person in a manner not consistent with the principles of fundamental justice.  The evidence was obtained as a result of the Charter  violation and s. 24(2)  is thereby triggered.

 

68                               It has been held that appellate courts should only intervene with respect to a lower court’s s. 24(2)  analysis when that court has made “some apparent error as to the applicable principles or rules of law” or has made an unreasonable finding:  R. v. Duguay, [1989] 1 S.C.R. 93, at p. 98; Mellenthin, supra.  The majority of the Court of Appeal of New Brunswick found that, in admitting the impugned evidence, the trial judge considered the appropriate principles and performed a correct analysis of the factors outlined in Collins, supra.  With respect, I cannot agree.


 

69                               The factors outlined by this Court in the trail blazing decision of Collins can be divided into three groups based on their effect on the repute of the administration of justice.  The first of these categories includes those factors which relate to the fairness of the trial; the second group pertains to the seriousness of the Charter  violation; and the third group concerns the possibility that the administration of justice could be brought into disrepute by excluding the evidence even though it was obtained in violation of the Charter .  In my view, the trial judge erred in his consideration of the first two factors.

 


70                               In considering how the admission of the evidence would affect the fairness of the trial, the trial judge erred in concluding that the hair samples and dental impressions existed independently of any Charter  breach and were thus admissible.  Certainly the appellant’s hair samples, dental patterns and saliva existed as “real” evidence.  However, the trial judge failed to appreciate the significance of the inescapable conclusion that, in violation of his Charter  rights, the appellant was conscripted or forced by the police to provide evidence from his body thus incriminating himself.  I have used the term “conscripted” to describe the situation where the police have compelled the accused to participate in providing self‑incriminating evidence in the form of a confession or providing bodily samples.  It is a term that has been used in other decisions of the Court, including Collins, to describe self‑incriminating evidence obtained as a result of a Charter  breach.  In the circumstances, it was unnecessary and inappropriate to consider the seriousness of the breach.  However, when he did so, the trial judge focussed exclusively on the conduct of the police.  While police conduct is certainly one factor to be considered under this heading, it is not the only consideration.  Here it was essential that other factors be considered.  It is thus apparent that the trial judge erred in his appreciation and application of the proper legal principles to be considered in applying s. 24(2) , and that the admissibility of the impugned evidence must be reconsidered.

 

71                               There can be no question that the Collins decision was the pathfinder that first charted the route that courts should follow when considering the application of s. 24(2) .  However, subsequent decisions of this Court and their interpretations by the courts below indicate that a further plotting of the course for courts to follow is required, while maintaining the basic principles outlined in Collins.  For example, confusion has arisen as to what constitutes “real” evidence and in what circumstances its exclusion or admission would render the trial unfair.  Perhaps the ensuing review of some decisions and proposed procedure for classifying evidence will be of some assistance.

 

(a)  Fairness of the Trial

 

72                               A consideration of trial fairness is of fundamental importance.  If after careful consideration it is determined that the admission of evidence obtained in violation of a Charter  right would render a trial unfair then the evidence must be excluded without consideration of the other Collins factors.  A fair trial for those accused of a criminal offence is a cornerstone of our Canadian democratic society.  A conviction resulting from an unfair trial is contrary to our concept of justice.  To uphold such a conviction would be unthinkable.  It would indeed be a travesty of justice.  The concept of trial fairness must then be carefully considered for the benefit of society as well as for an accused.  In discussing the aspect of trial fairness and its application under s. 24(2) , Lamer J., as he then was, in Collins, supra, stated, at p. 284 that:

 


It is clear to me that the factors relevant to this determination will 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.  Real evidence that was obtained in a manner that violated the Charter  will rarely operate unfairly for that reason alone.  The real evidence existed irrespective of the violation of the Charter  and its use does not render the trial unfair.  However, the situation is very different with respect to cases where, after a violation of the Charter , the accused is conscripted against himself through a confession or other evidence emanating from him.  The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination.  [Emphasis added.]

 

73                               It is apparent from this passage that the primary aim and purpose of considering the trial fairness factor in the s. 24(2)  analysis is to prevent an accused person whose Charter  rights have been infringed from being forced or conscripted to provide evidence in the form of statements or bodily samples for the benefit of the state.  It is because the accused is compelled as a result of a Charter  breach to participate in the creation or discovery of self‑incriminating evidence in the form of confessions, statements or the provision of bodily samples, that the admission of that evidence would generally tend to render the trial unfair.   That general rule, like all rules, may be subject to rare exceptions.

 

74                               Thus, as a first step in the trial fairness analysis it is necessary to classify the type of evidence in question.  Evidence to be considered under “fairness” will generally fall into one of two categories: non‑conscriptive or conscriptive. The admission of evidence which falls into the “non‑conscriptive” category will, as stated in Collins, rarely operate to render the trial unfair.  If the evidence has been classified as non‑conscriptive the court should move on to consider the second and third Collins factors, namely, the seriousness of the Charter  violation and the effect of exclusion on the repute of the administration of justice.  The key, then, is how to distinguish between “non‑conscriptive” and “conscriptive” evidence.

 


(i)  Classification of the Evidence

 

Non‑Conscriptive Evidence

 

75                               If the accused was not compelled to participate in the creation or discovery of the evidence (i.e., the evidence existed independently of the Charter  breach in a form useable by the state), the evidence will be classified as non‑conscriptive.  The admission of evidence which falls into this category will, as stated in Collins, supra, rarely operate to render the trial unfair.  If the evidence has been classified as  non‑conscriptive the court should move on to consider the second and third of the Collins factors, namely, the seriousness of the Charter  violation and the effect of exclusion on the repute of the administration of justice.

 

76                               What has come to be referred to as “real” evidence will not necessarily fall into the “non‑conscriptive” category.  There is on occasion a misconception that “real” evidence, referring to anything which is tangible and exists as an independent entity, is always admissible.  It is for this reason that blood, hair samples or the identity of the accused are often readily, yet incorrectly, classified as “real evidence existing independently of the Charter  breach”.  It is true that all of these examples “exist” quite independently of a Charter  breach.  Yet, it is key to their classification that they do not necessarily exist in a useable form. For example, in the absence of a valid statutory authority or the accused’s consent to take bodily samples, the independent existence of the bodily evidence is of no use to the prosecution since there is no lawful means of obtaining it.

 


77                               The crucial element which distinguishes non‑conscriptive evidence from conscriptive evidence is not whether the evidence may be characterized as “real” or not.  Rather, it is whether the accused was compelled to make a statement or provide a bodily substance in violation of the Charter .  Where the accused, as a result of a breach of the Charter , is compelled or conscripted to provide a bodily substance to the state, this evidence will be of a conscriptive nature, despite the fact that it may also be “real” evidence.  Therefore, it may be more accurate to describe evidence found without any participation of the accused, such as the murder weapon found at the scene of the crime, or drugs found in a dwelling house, simply as non‑conscriptive evidence; its status as “real” evidence, simpliciter, is irrelevant to the s. 24(2)  inquiry.

 

78                               The concept of “real” evidence without any further description is misleading.  It will be seen that, in certain circumstances, evidence such as the gun in R. v. Burlingham, [1995] 2 S.C.R. 206, may come into the state’s possession as a result of the accused’s compelled participation or “conscription” against himself.  Thus, while the evidence is “real” it is nevertheless conscriptive evidence.

 


79                               The recent case of R. v. Evans, [1996] 1 S.C.R. 8, provides an example of what I will call non‑conscriptive evidence.  Without any valid grounds the police knocked on the door which was opened by Mr. Evans.  They smelled marijuana, arrested Mr. Evans and searched the premises.  The evidence obtained by the police consisted of 41 marijuana plants, and other drug‑related paraphernalia and growing equipment.  It was found that the impugned evidence was real evidence that existed irrespective of a Charter  violation.  Once it had been established that the discovery of the evidence was not contingent on the accused’s participation, it became unnecessary to consider whether the evidence would have been discovered in the absence of (but for) the unlawful search.  The admission of the evidence would not render the trial unfair since the accused was not conscripted against himself in the creation or discovery of it.  Accordingly, the trial fairness factor was satisfied and the Court moved on to consider the seriousness of the violation.  See also: R. v. Grant, [1993] 3 S.C.R. 223, R. v. Wiley, [1993] 3 S.C.R. 263, and R. v. Plant, [1993] 3 S.C.R. 281.

 

Conscriptive Evidence

 

80                               Evidence will be conscriptive when an accused, in violation of his Charter  rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples.  The traditional and most frequently encountered example of this type of evidence is a self‑incriminating statement made by the accused following a violation of his right to counsel as guaranteed by s. 10 (b) of the Charter .  The other example is the compelled taking and use of the body or of bodily substances of the accused, such as blood, which lead to self‑incrimination.  It is the compelled statements or the conscripted use of bodily substances obtained in violation of Charter  rights which may render a trial unfair.

 

81                               In considering the application of s. 24(2) , courts will be rightly concerned that there has been a breach of the rights of the accused which led to the compelled self‑incrimination of the accused.  Historically, the judicial misgivings relating to self‑incrimination came from the abhorrence of conscripting an accused to incriminate himself by means of a confession.  When the rule against self‑incrimination first emerged, there was a very real concern that a confession sometimes obtained by torture or threats could well be unreliable.  Over the years, forms of compulsion other than torture were recognized as being just as compulsive, just as insidious and just as abhorrently unfair.  At the time when the principle against enforced self‑incrimination evolved,  a confession or statement was often the only evidence tendered by the state to prove the crime.

 


82                               It is only in recent times that the compelled use of the body of the accused has been considered.  Yet, it cannot be forgotten that in Collins, supra, Lamer J. astutely observed that “the situation is very different with respect to cases where, after a violation of the Charter , the accused is conscripted against himself through a confession or other evidence emanating from him.  The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination” (p. 284).  The carefully worded phrase “or other evidence emanating from him” gives a clear indication that the compelled or conscripted use of bodily substances in violation of the Charter  will tend to render the trial unfair.

 

83                               It is contended that the taking of bodily substances should not be subject to the same protection as statements or confessions.  Statements, it is said, are a product of the mind which would not exist but for the Charter  violation.  Bodily substances on the other hand already exist.  Thus it is said that the body itself or identifying marks on it may always be used for identification.  As a result, it is argued that bodily substances should always be available for testing and identification.

 


84                               Those who take this position rely upon the decision of the U.S. Supreme Court in Schmerber v. California, 384 U.S. 757 (1966).  There, a blood sample was taken without the consent of the accused.  It was contended that the taking infringed his right against self‑incrimination.  It was conceded that the state compelled him to submit to the taking to discover evidence that might be used to prosecute him.  In a 5 to 4 decision the majority found the right against self‑incrimination only guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will” (p. 760).  The minority were of the view that taking the blood constituted a breach of the right against self‑incrimination.  I must say I prefer the view of the minority.  Black J. in his dissenting reasons stated at p. 778:

 

How can it reasonably be doubted that the blood test evidence was not in all respects the actual equivalent of “testimony” taken from  petitioner when the result of the test was offered as testimony, was considered by the jury as testimony, and the jury’s verdict of guilt rests in part on that testimony?  The refined, subtle reasoning and balancing process used here to narrow the scope of the Bill of Rights’ safeguard against self‑incrimination provides a handy instrument for further narrowing of that constitutional protection, as well as others, in the future.  Believing with the Framers that these constitutional safeguards broadly construed by independent tribunals of justice provide our best hope for keeping our people free from governmental oppression. . . .

 

85                               Douglas J. in his dissenting reasons wrote at pp. 778‑79:

 

We are dealing with the right of privacy which, since the Breithaupt case, we have held to be within the penumbra of some specific guarantees of the Bill of Rights.  Griswold v. Connecticut, 381 U.S. 479.  Thus, the Fifth Amendment marks “a zone of privacy” which the Government may not force a person to surrender.  Id., 484.  Likewise the Fourth Amendment recognizes that right when it guarantees the right of the people to be secure “in their persons.” Ibid.  No clearer invasion of this right of privacy can be imagined than forcible bloodletting of the kind involved here.

 

86                               It has, for a great many years, been considered unfair and indeed unjust to seek to convict on the basis of a compelled statement or confession.  If it was obtained as a result of a breach of the Charter  its admission would generally tend to render the trial unfair.  Similarly, to compel an accused to use his body or to provide bodily substances in order to incriminate himself would generally render the trial unfair.  This is so because the compelled production of bodily parts or substances is just as great an invasion of the essence of the person as is a compelled conscripted statement.  The unauthorized use of a person’s body or bodily substances is just as much compelled “testimony” that could render the trial unfair as is a compelled statement.


 

87                               Canadians think of their bodies as the outward manifestation of themselves.  It is considered to be uniquely important and uniquely theirs.  Any invasion of the body is an invasion of the particular person.  Indeed, it is the ultimate invasion of personal dignity and privacy.  No doubt this approach was the basis for the assault and sexual assault provisions.  The body was very rightly seen to be worthy of protection by means of criminal sanctions against those who assault others.  The concept of fairness requires that searches carried out in the course of police investigations recognize the importance of the body.

 

88                               Traditionally, the common law and Canadian society have recognized the fundamental importance of the innate dignity of the individual.  There is little likelihood of maintaining any semblance of dignity where, without consent and in the absence of any statutory authorization, intrusive procedures are employed to take bodily substances.  For example, can there be any respect demonstrated for an individual if against their will women and men accused of a crime can be compelled to provide samples of their pubic hair to the police?

 


89                               It is repugnant to fair-minded men and women to think that police can without consent or statutory authority take or require an accused to provide parts of their body or bodily substances in order to incriminate themselves.  The recognition of the right to bodily integrity and sanctity is embodied in s. 7  of the Charter  which confirms the right to life, liberty and the security of the person and guarantees the equally important reciprocal right not to be deprived of security of the person except in accordance with the principles of fundamental justice.  This right requires that any interference with or intrusion upon the human body can only be undertaken in accordance with principles of fundamental justice.  Generally that will require valid statutory authority or the consent of the individual to the particular bodily intrusion or interference required for the purpose of the particular procedure the police wish to undertake.  It follows that the compelled use of the body or the compelled provision of bodily substances in breach of a Charter  right for purposes of self‑incrimination will generally result in an unfair trial just as surely as the compelled or conscripted self‑incriminating statement.

 

90                               So soon as that is said, it is apparent that a particular procedure may be so unintrusive and so routinely performed that it is accepted without question by society.  Such procedures may come under the rare exception for merely technical or minimal violations referred to earlier.  For example, assuming that fingerprinting is conscriptive, it is minimally intrusive and has been recognized by statute and practice for such an extended period of time that this Court readily found that it was acceptable in Canadian society.  See the carefully crafted reasons of La Forest J. in Beare, supra.  Similarly, the Criminal Code  provisions pertaining to breath samples are both minimally intrusive and essential to control the tragic chaos caused by drinking and driving.

 


91                               In the case at bar to proceed in the face of a specific refusal to compel the accused to submit to the lengthy and intrusive dental process, to force the accused to provide the pubic hairs and to forcibly take the scalp hairs and buccal swabs was, to say the least, unacceptable behaviour that contravened both s. 7  and s. 8  of the Charter .  It was a significant invasion of bodily integrity.  It was an example of the use of mental and physical action by agents of the state to overcome the refusal to consent to the procedures.  It serves as a powerful reminder of the powers of the police and how frighteningly broad they would be in a police state.  If there is not respect for the dignity of the individual and the integrity of the body then it is but a very short step to justifying the exercise of any physical force by police if it is undertaken with the aim of solving crimes.  No doubt the rack and other stock in trade of the torturer operated to quickly and efficiently obtain evidence for a conviction.  Yet repugnance for such acts and a sense of a need for fairness in criminal proceedings did away with those evil practices.  There must always be a reasonable control over police actions if a civilized and democratic society is to be maintained.

 

92                               In my view, police actions taken without consent or authority which intrude upon an individual’s body in more than a minimal fashion violate s. 7  of the Charter  in a manner that would as a general rule tend to affect the fairness of the trial.  Those opposed to this position may argue that it leads to the requirement that the state will have to justify legislation permitting bodily intrusion.  Yet, I do not find that to be an unduly onerous requirement when dealing with bodily intrusions.  Although the issue was not raised it would seem that the recent provisions of the Code permitting DNA testing might well meet all constitutional requirements.  The procedure is judicially supervised, it must be based upon reasonable and probable grounds and the authorizing judge must be satisfied that it is minimally intrusive.  It cannot be forgotten that the testing can establish innocence as readily as guilt as the Guy‑Paul Morin case so vividly demonstrates.  It seems to me that the requirement of justification is a reasonable safeguard which is necessary to control police powers to intrude upon the body.  This is the approach that I would favour.

 


93                               However, it should be recognized that there is an alternative approach which reaches the same result.  It could be said that intrusive searches of the body, such as those which occurred here, were so unreasonable and constituted such a serious violation of s. 8  that to admit the evidence obtained from the search would bring the administration of justice with disrepute.  This result would be based upon the seriousness or gravity of the breach, the second factor referred to in Collins, supra.  My concern with this approach is that it fails to recognize the fundamental importance of the innate dignity of the individual.  That dignity is, to a large extent, based upon the integrity and sanctity of the body.  That sanctity is violated if individuals are prevented from exercising their free will as to the use to be made of their own body by agents of the state.  It is the security of the person which is recognized by s. 7  of the Charter .  The security of the body should be recognized as being just as worthy of protection from state intrusion aimed at compelled self‑incrimination as are statements.  Evidence obtained by a significant compelled intrusion upon the body without consent or statutory authorization should be considered, as a general rule, to adversely effect the fairness of the trial.

 

94                               The compulsion which results in self‑incrimination by a statement or the taking of bodily substances or the use of the body itself may arise in a number of ways such as the forced participation in a line‑up identification (R. v. Ross, [1989] 1 S.C.R. 3); providing a breath sample (R. v. Bartle, [1994] 3 S.C.R. 173); providing DNA samples ‑‑ blood (Borden, supra); telling the police where to find evidence (Burlingham, supra); and making an incriminating statement (R. v. Manninen, [1987] 1 S.C.R. 1233).

 

95                               In Ross, supra, the accused were denied their right to counsel and were subsequently asked to participate in a line‑up without being told that they were not obliged to do so.  The Court assessed the impact of the identification evidence on the fairness of the trial and made the following comments (at p. 16):

 

It is true that, as a general matter, the identity of the accused is not evidence emanating from the accused, nor is it evidence that cannot be obtained but for the participation of the accused. . . .

 


However, the identification evidence obtained through a line-up is not simply pre-existing “real evidence” in this sense.  The purpose of a line-up is two-fold.  First, a line-up is designed to identify the detainee as the author of the crime.  But second, and most important to the discussion here, the procedure of a line-up is designed to reinforce the credibility of identification evidence.  In this sense the object of the line-up is to construct evidence that the accused was picked out from among a similar group of people, by a witness who was not prompted in any way to make that choice, and to settle the memory of the witness for the purpose of the trial.  When participating in a line-up, the accused is participating in the construction of credible inculpating evidence.

 

96                               On the other hand, an example of a situation where evidence obtained in violation of a Charter  right was admitted because there was no compulsion is R. v. Wijesinha, [1995] 3 S.C.R. 422.  In that case, the accused, a lawyer, had set up a scheme whereby police officers, for a fee, would refer to him individuals caught driving while impaired.  Part of the evidence against the accused were certain statements he made at a meeting he had arranged with a police officer who, unbeknownst to him, was wearing a “body pack” which recorded the conversation.  This surreptitious recording was undertaken without a warrant, and hence violated s. 8  of the Charter .  Obviously, the accused was not detained at the time he made these statements.

 

97                               With respect to the first branch of the Collins test, it was held at para. 55 that:

 

On the first question, it seems readily apparent that the admission of the evidence did not affect the fairness of the trial.  The appellant could not by any stretch of the imagination be said to have been conscripted into incriminating himself in these conversations.  [Emphasis added.]

 

98                               Thus, it can be seen that the admission of evidence, which was obtained following the breach of an accused’s Charter  rights resulting in the accused being compelled or conscripted to incriminate himself by a statement or the use as evidence of his body or bodily substances will, as a general rule, be found to render the trial unfair.

 


Derivative Evidence

 

99                               A subset of conscriptive evidence is “derivative evidence”.  This is a term frequently used to describe what is essentially conscriptive “real” evidence.  It involves a Charter  violation whereby the accused is conscripted against himself (usually in the form of an inculpatory statement) which then leads to the discovery of an item of real evidence. In other words, the unlawfully conscripted statement of the accused is the necessary cause of the discovery of the real evidence.

 

100                           An example is provided by Burlingham, supra.  There the accused, who was charged with murder, was subjected to an intensive and manipulative interrogation by the police in violation of his right to counsel.  The questioning ultimately led to the accused giving a full confession, including a statement that the murder weapon could be found at the bottom of a frozen river.  It was found that nothing would have been said had the accused not been improperly conscripted by the police to provide evidence against himself.  The gun, which was ultimately seized from the river, was “real” evidence.  However, its seizure was derived from the conscripted statement.  This decision demonstrates that the gun should not be treated as “real” evidence “which will rarely render the trial unfair”, but rather, it should be viewed as conscriptive or self‑incriminating evidence discovered as a result of the accused being conscripted to provide the evidence following a breach of his Charter  rights.   As Sopinka J. aptly put it (at paras. 144‑45):

 

. . .it is unfair for the Crown to make out its case in whole or in part by the use of evidence that it obtained in breach of the rights of the accused and involving his or her participation. . . .

 


The participation of the accused in providing incriminating evidence involving a breach of Charter  rights is the ingredient that tends to render the trial unfair as he or she is not under any obligation to assist the Crown to secure a conviction.

 

101                           If the evidence under consideration is classified as conscriptive, that is to say self‑incriminating, which in the case of statements includes derivative evidence, then it will be necessary to take the second step of the analysis and determine whether the admission of the evidence would render the trial unfair.

 

(ii)  The Discoverability or “But For” Principle

 

102                           The admission of self‑incriminating evidence in the form of statements or bodily substances conscripted from the accused in violation of the Charter  and evidence derived from unlawfully conscripted statements will, as a general rule, tend to render the trial unfair.  Nevertheless, in recent cases it has been held that the admission of conscriptive evidence will not render the trial unfair where the impugned evidence would have been discovered in the absence of the unlawful conscription of the accused.  There are two principal bases upon which it could be demonstrated that the evidence would have been discovered.  The first is where an independent source of the evidence exists.  The second is where the discovery of the evidence was inevitable.

 

Where the Evidence Would Have Been Discovered Absent the Unlawful Conscription of the Accused

 

Independent Source

 


103                           In certain circumstances, the police may have had an alternative non‑conscriptive means by which they could have obtained the impugned evidence, notwithstanding the fact that they obtained it by conscriptive means.  Evidence which would have been obtained without the accused’s participation yet, the accused was still compelled to participate, will nonetheless be classified as conscriptive evidence.  The existence of an alternate means of obtaining the evidence has no bearing on how the evidence is classified.  Nevertheless, where an alternative non‑conscriptive means exists and the Crown has established on a balance of probabilities that the police would have availed themselves of it, the admission of the evidence would not effect the fairness of the trial.

 

104                           In R. v. Colarusso, [1994] 1 S.C.R. 20, the accused, whose impaired driving resulted in a motor vehicle accident, refused to give samples of his blood and urine for anything other than medical purposes.  Notwithstanding the lack of consent, a lab technician gave the accused’s bodily samples to the coroner, who then turned them over to a police officer.  The results of the analysis of the samples were used against the accused at trial.  It was held that the independent and prior existence of the sample, completely apart from any s. 8  infringement by the state, meant that the evidence was discoverable in any event.  The police could have obtained a warrant to seize the sample and therefore a non‑conscriptive means or independent source for the evidence existed.

 

105                           In those cases where it is determined that a non‑conscriptive means existed by which the evidence would have been obtained, the admission of the evidence may not render the trial unfair.  However, the fact that an alternate means existed for obtaining the evidence may well also be relevant to the consideration of the seriousness of the violation.  It is important to bear in mind what was said about such a situation in Collins, supra, at p. 285:

 


. . .the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter  tend to render the Charter  violation more serious.  We are considering the actual conduct of the authorities and the evidence must not be admitted on the basis that they could have proceeded otherwise and obtained the evidence properly.  In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter , which is a factor supporting the exclusion of the evidence.

 

Inevitable Discovery

 

106                           R. v. Black, [1989] 2 S.C.R. 138, involved a breach of the accused’s s. 10 (b) rights.  Following the Charter  violation, the police officer improperly questioned the accused about the details of the offence.  This led to the accused making an inculpatory statement.  She was then escorted to her apartment where she produced a knife from a kitchen drawer and handed it over to the officers indicating that it was the murder weapon.  The Court excluded the accused’s statement on the basis that its admission would infringe her right against self‑incrimination and thus render the trial unfair.  The knife was held to be derivative evidence obtained as a direct result of the conscripted statement made by the accused.  The Court then applied the discoverability principle.  It concluded that there was no doubt that the police would have conducted a search of the accused’s apartment where the killing occurred.  During that search, the police, even without her assistance, would have discovered the knife.  In other words, the discovery of the knife was inevitable and therefore its admission would not render the trial unfair.  The Black case, then, provides an example of how this two‑step process prevents all conscripted evidence from being automatically excluded.  I should note, in passing, that “inevitably” discoverable evidence may be subsumed in the consideration of evidence obtained by alternative non‑conscriptive means.

 


107                           In summary, where it is established that either a non‑conscriptive means existed through which the evidence would have been discovered or that its discovery was inevitable, then the evidence was discoverable; it would have been discovered in the absence of the unlawful conscription of the accused.  The Crown must bear the onus of establishing discoverability on a balance of probabilities.  Where the evidence was “discoverable”, even though it may be conscriptive, its admission will not, as a general rule, render the trial unfair.  The Court should therefore proceed to consider the seriousness of the violation.

 

Where the Evidence Would Not Have Been Discovered in the Absence of the Unlawful Conscription of the Accused

 

108                           There will be cases where the evidence would not have been discovered in the absence of the unlawful conscription of the accused.  That is to say there will be no independent source of evidence nor could it be established that it would inevitably have been discovered.  The Burlingham case illustrates a situation where the discovery of the murder weapon was anything but inevitable.  It would be safe to say that the police would never have found the gun but for the accused’s conscripted statement.  Their investigation would not have led them to discover the weapon at the bottom of a frozen river.  To admit the gun in evidence would render the trial unfair.

 

109                           Another example is provided by Borden, supra.  A sample of the accused’s blood was taken in order to link him to a sexual assault.  In the process his ss. 8 , 10 (a) and (b) Charter  rights were violated.  The evidence was conscriptive and was not discoverable in any event.  The accused had no legal obligation to provide the blood sample and the police could not obtain it without his consent or his unlawful conscription.  Accordingly, the evidence was excluded on the basis that its admission would render the trial unfair.

 


110                           Thus it can be seen that in situations where the evidence would not have been discovered in the absence of the conscription of the accused in violation of the Charter , its admission would render the trial unfair.  In those circumstances it is not necessary to consider the seriousness of the violation or the repute of the administration of justice since a finding that the admission of the evidence would render the trial unfair indicates that the administration of justice would necessarily be brought into disrepute if the evidence were not excluded under s. 24(2) .

 

111                           Perhaps it would be helpful to set out a summary of the approach that should be taken when the trial fairness factor is being considered.

 

(iii)  Trial Fairness Summary

 

112                           A simple method by which trial judges may approach the trial fairness factor is to divide the analysis into two steps.  First, the evidence must be classified as either “conscriptive” or “non‑conscriptive”.  The classification will be based on the manner in which the evidence was obtained.

 

Classification

 


113                           If the evidence, obtained in a manner which violates the Charter , involved the accused being compelled to incriminate himself either by a statement or the use as evidence of the body or of bodily substances it will be classified as conscriptive evidence.  See Manninen, supra; Ross, supra, and Bartle, supra.  On the other hand, if the evidence, obtained in a manner which violates the Charter , did not involve the accused being compelled to incriminate himself either by a statement or the use as evidence of the body or of bodily substances it will be classified as non‑conscriptive evidence.  See R. v. Silveira, [1995] 2 S.C.R. 297, and Evans, supra.

 

114                           Conscripted or self‑incriminating evidence may lead to what has been termed derivative evidence.  This phrase has been used to describe “real” evidence which has been “derived” from, that is to say found as a result of, the conscriptive evidence.  The evidence discovered should be classified as conscriptive, since the accused’s compelled statement was a necessary cause of its discovery.  In those cases, the courts must carefully review the events leading up to the finding of the evidence rather than simply considering whether the ultimate piece of evidence which the Crown is seeking to introduce is “real” evidence.  As an example of derivative evidence that was conscripted from the accused, see Burlingham, supra.

 

115                           Where evidence is determined to be non‑conscriptive, its admission generally will not render the trial unfair and the court should proceed to consider the seriousness of the violation.  However, where evidence is found to be of a conscriptive nature the court must proceed to the second step, which involves an assessment of whether the evidence would have been discovered in the absence of (but for) the Charter  violation.

 

Discoverability

 


116                           There are two bases upon which it may be demonstrated that the evidence would have been discovered absent a Charter  violation:  (a) if the evidence would have been obtained, in any event, from an independent source; in other words, there were alternative non‑conscriptive means by which the police could have seized the evidence and the Crown has established, on a balance of probabilities, that the police would have availed themselves of those means (see, for example, Colarusso, supra); or (b) if the evidence would inevitably have been discovered.  See, for example, Black, supra, and R. v. Harper, [1994] 3 S.C.R. 343.  In both circumstances, even though it is conscriptive evidence, the probability of its discovery means that its admission will not render the trial unfair.  However, in determining the admissibility of the evidence that would have been discovered by the alternative means, the court will have to consider the seriousness of the Charter  breach and the effect of exclusion on the repute of the administration of justice.

 

117                           On the other hand, there will be cases where the evidence would not have been discovered in the absence of the conscription of the accused in violation of the Charter .  In those situations it will be apparent that the police could not have obtained the evidence in the absence of the unlawful conscription of the accused.  See as examples, Burlingham, supra, and Borden, supra.

 

118                           Therefore, where the conscriptive evidence would not have been discovered in the absence of the unlawful conscription of the accused, its admission would generally tend to render the trial unfair.  In those circumstances it is not necessary to consider the seriousness of the violation, or the repute of the administration of justice, as a finding that the admission of the evidence would render the trial unfair means that the administration of justice would necessarily be brought into disrepute if the evidence were not excluded under s. 24(2) R. v. Hebert, [1990] 2 S.C.R. 151; Mellenthin, supra.

 

119                           The summary itself can be reduced to this short form:

 


1.    Classify the evidence as conscriptive or non‑conscriptive based upon the manner in which the evidence was obtained. If the evidence is non‑conscriptive, its admission will not render the trial unfair and the court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.

 

2.    If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non‑conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice.  This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.

 

3.    If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non‑conscriptive means, then its admission will generally not render the trial unfair.  However, the seriousness of the Charter  breach and the effect of exclusion on the repute of the administration of justice will have to be considered.

 

(iv)  Application of the Principles Discussed to this Case

 

The Samples of Hair, the Dental Impression and Buccal Swabs:  Was this Evidence Conscripted From the Appellant?

 

120                           The police had no right to obtain the hair samples, teeth impressions or buccal swabs from the appellant without his informed consent.  The appellant clearly expressed his refusal to provide bodily samples.  Yet, by threat of force the police obtained the sample of scalp hair, buccal swabs and compelled the appellant to pluck his pubic hair to provide as a sample.  They proceeded with the lengthy and intrusive process of taking impressions of his teeth.  There can be no doubt that the police, by their words and actions, compelled the appellant to participate in providing the evidence.  Equally there can be no doubt that the evidence of bodily samples  constituted conscriptive evidence.

 


121                           As Iacobucci J. noted in R. v. S. (R.J.), [1995] 1 S.C.R. 451: “Physical objects, observations, and bodily fluids may exist prior to a Charter  breach, but they do not exist as evidence unless the state has a means to acquire them for trial” (para. 188 (emphasis in original)).

 

Would the Evidence Have Been Discovered in the Absence of the Unlawful Conscription of the Accused?

 

122                           It is apparent that the impugned evidence would not have been discovered had it not been for the conscription of the accused in violation of s. 7  and s. 8  of the Charter .  The appellant was not obliged to provide the hair samples, teeth impressions or buccal swabs.  His Charter guarantee of security of the person and the inviolability of his body meant that in the absence of statutory authority the Crown could not undertake the impugned procedure.  Quite simply, the police could not, in the absence of valid statutory authority, lawfully obtain the samples without his consent.  No independent source existed by which the police could have obtained the impugned evidence.  Since the appellant expressly refused to consent to provide samples, the evidence was not discoverable by the state without the conscription of the accused in violation of the Charter .  It follows that the admission of the evidence would render the trial unfair.  This finding is sufficient to resolve the s. 24(2)  issue as the evidence must be excluded:  Hebert, supra.  However, something should be said of the seriousness of the Charter  violation which occurred in this case.

 

(b)  Seriousness of the Charter Violation

 


123                           The violations of ss. 7  and 8  of the Charter , pursuant to which this evidence was obtained, were of a very serious nature.  The police acted with blatant disregard for the fundamental rights of the appellant.  Notwithstanding the appellant’s express refusal to provide bodily samples or to give a statement, the police purposely waited until the appellant’s lawyers had left and then immediately proceeded, through the use of force, threats and coercion to take his bodily samples and to interrogate him in an effort to obtain a statement.  They pulled and cut samples of the appellant’s scalp hair and made him pull his own pubic hair.  They forced a plasticine mold into his mouth in order to obtain dental impressions and later, had a dentist conduct a two-hour procedure to take more accurate impressions.

 

124                           Reprehensible as these actions were in themselves they become intolerable in these circumstances when the police were aware that the appellant was a young offender at the time, and that he was entitled to the special protection provided by the Young Offenders Act.  The police knew the Act provides that a young person must be given a reasonable opportunity to have a lawyer, a parent, or a chosen adult present when the police seek to take a statement.  All this was flagrantly disregarded.

 

125                           The respondent argued that the police acted in good faith since they asked the Crown Attorney whether they had authority to seize bodily samples.  I cannot accept this submission.  The police were aware that, without the DNA evidence, they did not have enough to charge the appellant with murder.  Under the circumstances, the comments of Sopinka J. in R. v. Kokesch, [1990] 3 S.C.R. 3, at p. 28, are apposite:

 

. . .the unavailability of other, constitutionally permissible, investigative techniques is neither an excuse nor a justification for constitutionally impermissible investigative techniques.

 

(c)  The Administration of Justice

 


126                           The Charter  rights of the accused were infringed by the actions of the police.  Those actions could be taken to be abusive.  It is easy to understand the sense of frustration of the police officers.  They were attempting to obtain evidence implicating the person they suspected had murdered a young girl.  Yet Charter rights are the rights of all people in Canada.  They cannot be simply suspended when the police are dealing with those suspected of committing serious crimes.   Frustrating and aggravating as it may seem, the police as respected and admired agents of our country, must respect the Charter  rights of all individuals, even those who appear to be the least worthy of respect.  Anything less must be unacceptable to the courts.  The words of Iacobucci J. in Burlingham, supra, at para. 50, bear repeating:

 

. . .we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter .  Short‑cutting or short‑circuiting those rights affects not only the accused but also the entire reputation of the criminal justice system.  It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2) .

 

127                           In this case, it would certainly shock the conscience of all fair minded members of the community that the police rode roughshod over a young offender’s refusal to provide his bodily samples.  As a result, the evidence of the hair samples, dental impressions and buccal swabs must be excluded.

 

(2)  The Tissue Containing Mucous

 


128                           In contrast to the hair samples, teeth impressions and buccal swabs, the police did not force, or even request, a mucous sample from the appellant.  He blew his nose of his own accord.  The police acted surreptitiously in disregard for the appellant’s explicit refusal to provide them with bodily samples.  However, the violation of the appellant’s Charter  rights with respect to the tissue was not serious.  The seizure did not interfere with the appellant’s bodily integrity, nor cause him any loss of dignity.  In any event, the police could and would have obtained the discarded tissue.  They would have had reasonable and probable grounds to believe that the tissue would provide evidence in their investigation and therefore would have sealed the garbage container and obtained a search warrant in order to recover its contents.  Quite simply, it was discoverable.  In my view, the administration of justice would not be brought into disrepute if the evidence obtained from the mucous sample were to be admitted.

 

VI.  Disposition

 

129                           The appeal is allowed and a new trial is ordered in which the hair samples, dental impressions and buccal swabs are to be excluded, while the mucous sample may be admitted.

 

//L’Heureux-Dubé J.//

 

The following are the reasons delivered by

 

130             L’Heureux-Dubé J. (dissenting) --  This case concerns the brutal murder of Pamela Bischoff, a 14-year-old girl.  Her body was located in the Oromocto River on April 18, 1991, not far from where she had last been seen alive six days earlier in the company of the appellant.  The circumstances of the killing and the horrendous details of the state in which the body of the victim was discovered are fully set out in the dissenting opinion of Rice J.A. in the judgment of the Court of Appeal of New Brunswick: (1995), 159 N.B.R. (2d) 321, 409 A.P.R. 321, 97 C.C.C. (3d) 164 (Hoyt C.J.N.B., Rice and Ayles JJ.A.), and need not be recounted here.

 


131                    The autopsy of the victim revealed a blunt trauma to her head which caused her death, semen in her vagina and a human bite mark on her abdomen which had apparently been placed at or after the time of death.

 

132                    In relation to the killing of Pamela Bischoff, the appellant was charged with and convicted, before a judge and jury, of first degree murder and sentenced to life imprisonment with no eligibility for parole for eight years, mainly on the basis of four pieces of evidence obtained at the time of appellant's arrest: mucous found in a discarded tissue, hair samples, buccal swabs and teeth impressions.  On a voir dire,  such evidence was found to be admissible at trial: Court of Queen’s Bench of New Brunswick, March 8, 1993, [1993] N.B.J. No. 625 (Russell J.).  The DNA extracted from the appellant’s mucous and hair samples was found to match the DNA of the semen found in the victim’s vagina.  Although the odontology results were inconclusive, the dental impressions and the bite mark found on the teenager’s body were found to be somewhat consistent.  That evidence is at the crux of this case.

 

133                    On appeal against the appellant’s conviction, the majority of the Court of Appeal of New Brunswick dismissed the appeal and this case comes to us as of right on account of the dissent on appeal.

 

134                    The appellant argues that the tissue found to contain mucous and the hair samples as well as the buccal swabs and the teeth impressions have been obtained in breach of his rights under ss. 7 , 8  and 10 (b) of the Canadian Charter of Rights and Freedoms  and, contrary to the trial judge's ruling on the voir dire and the judgment of the majority of the Court of Appeal, should have been excluded at trial.  The Crown submits that no such Charter  violations occurred and, if so, that the evidence was nevertheless admissible under s. 24(2)  of the Charter .


135                    The issue of whether the evidence in dispute was admissible at trial involves questions of fact as well as questions of law.  My colleague Cory J. concludes that, except for the tissue found to contain mucous, such evidence is not admissible and would accordingly allow the appeal and order a new trial.  I dissent for the following reasons.

 

136                    The starting point of the analysis is the arrest.  Was the arrest lawful?  If so, was the search and seizure of the evidence at issue legal?  If not, was such evidence admissible?

 

I.  Was the Arrest Lawful?

 

 137            My colleague Cory J., for the reasons he gives, concludes that the arrest was a lawful one.  I agree.

 

II.  Was the Search and Seizure Legal?

 

138                    The search and seizure of the tissue containing mucous and the hair samples as well as the buccal swabs and the teeth impressions was accomplished while the appellant was lawfully under arrest.  My colleague Cory J. concludes that such search and seizure was not legal at common law on the basis that it does not fall within the police’s power of search incidental to arrest given its impact on the bodily integrity of the appellant and the absence of urgency or exigent circumstances, such as the risk of destruction of evidence, which might have otherwise served as a justification  (Cloutier v. Langlois, [1990] 1 S.C.R. 158).  My colleague is further of the view that, if the power of search incidental to arrest authorizes the seizure of such bodily samples and impressions,  the common law rule itself is unreasonable within the meaning of s. 8  of the Charter  (R. v. Collins, [1987] 1 S.C.R. 265).  I do not agree.


139                    As a preliminary matter, it must be underlined that the law, as it stands today, gives courts jurisdiction to issue a warrant authorizing, albeit under strict guidelines and for designated offences only, “(a) the plucking of individual hairs from the person, including the root sheath; (b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells” (s. 487.06(1)  of the Criminal Code, R.S.C., 1985, c. C-46 ).  At the time of the appellant's arrest, however, the police could not have obtained such a warrant.  While the police had reasonable and probable grounds to arrest the appellant, they did not have enough evidence to lay a charge of murder against him.  In light of the absence of an alternative investigative technique for the purposes of securing the type of evidence they were seeking, it comes as no surprise, therefore, that the police had to rely on their common law search power.

 

140                    The police did so after consultation with Crown counsel who provided them with three decisions: R. v. Alderton (1985), 17 C.C.C. (3d) 204 (Ont. C.A.), which supports the proposition that the police have the power to take hair samples from a lawfully arrested person; Cloutier v. Langlois, supra, which recognizes the police’s power to conduct a “frisk” search incidently to a lawful arrest; and R. v. Beare, [1988] 2 S.C.R. 387, in which the legislation authorizing the fingerprinting of a person in lawful custody was upheld.  Perhaps inadvertently, the decision of the New Brunswick Court of Appeal in R. v. Legere (1988), 89 N.B.R. (2d) 361, which stands for the proposition that the seizure of a person’s hair without his or her consent violates ss. 7  and 8  of the Charter , was not brought to the police’s attention.  As pointed out by my colleague Cory J., the question of whether or not the common law power of search incidental to arrest extends to allow the taking of bodily substances and impressions is controversial.  The recent relevancy of DNA analysis and forensic odontology vouches for the uncertainty of the law and the conflicting, albeit limited, jurisprudence as regards the legality of the taking of bodily substances and impressions.


141                    A proper analysis, in my view, starts with the premise that, upon lawful arrest, the police have certain obligations, such as that of preventing danger to the person under arrest, the police and the public, but also certain rights.  One of those rights is the right to secure evidence.  In Cloutier v. Langlois, supra, at pp. 180-81, this Court unanimously recognized that the common law power of search incidental to arrest was a legitimate means by which those rights and obligations were to be carried out:

 

In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide evidence against him.  The common thread in this line of authority is the objective of guaranteeing safety and applying the law effectively.  [Emphasis added.]

 

142                    The right to secure evidence as an incident of arrest flows from the pivotal function of the police in the investigation of crime, the discovery of evidence and the effective application of the law.  This crucial function was underscored by Cory J., for the Court, in R. v. Storrey, [1990] 1 S.C.R. 241, at p. 254:

 

The essential role of the police is to investigate crimes.  That role and function can and should continue after they have made a lawful arrest.  The continued investigation will benefit society as a whole and not infrequently the arrested person.  It is in the interest of the innocent arrested person that the investigation continue so that he or she may be cleared of the charges as quickly as possible.

 

In fact, in deciding whether the police may exercise its power to arrest, one of the factors to be considered is “the need ...to secure or preserve evidence of or relating to the offence” (R. E. Salhany, Canadian Criminal Procedure (6th ed. 1994 (loose-leaf)), at para. 3.50).

 


143                    Clearly, the search and seizure at issue here was not necessary in order to protect the appellant, the police or the public.  The only question at this point relates to the scope of the police's right to secure evidence upon lawful arrest in light of the nature of the evidence at issue, namely hair, saliva and mucous samples as well as dental impressions.

 

A.  Scope of the Power of Search Incidental to Arrest

 

144                    In Cloutier v. Langlois, supra, this Court had the occasion to review the scope of the police’s common law power to search a lawfully arrested person.  That case, however, only dealt with the “frisk” search of a person initially stopped by the police for violating a traffic municipal by-law and then identified as having unpaid traffic fines.  Since the “frisk” search was conducted in order to ensure police safety, it was not necessary for this Court to elaborate on the extent of the right to secure evidence.  The question in the present case is whether the recognition of the power of search as an incident of arrest in Cloutier v. Langlois extends to cover the search and seizure at issue here which, admittedly, raises different concerns.

 

145                    The appellant proposes a narrow definition of the right to secure evidence by restricting it to the seizure of objects which may be destroyed or otherwise lost, thereby excluding from its scope bodily samples and impressions.  The Crown submits that, as least as far as dental impressions are concerned, the common law power of search incidental to arrest allowed for such kind of evidence to be taken.  If, however, it was found that bodily samples and impressions were not envisioned at common law as permissible evidence to be obtained by the police upon arrest, the Crown urges us to accept the view that the right to secure evidence should extend to that kind of evidence.

 


146                    The determination of the limits of the police’s  power to search a lawfully arrested person, like other police powers derived from the common law, requires a balancing of the competing interests involved.  Those interests were identified in  Cloutier v. Langlois, supra, at pp. 182-83:

 

The system depends for its legitimacy on the safe and effective performance of this function by the police.  In the context of an arrest, these requirements entail at least two primary considerations.  First, the process of arrest must be capable of ensuring that those arrested will come before the court.  An individual who is arrested should not be able to evade the police before he is released in accordance with the rules of criminal procedure, otherwise the administration of justice will be brought into disrepute....  Further, the process of arrest must ensure that evidence found on the accused and in his immediate surroundings is preserved.  The effectiveness of the system depends in part on the ability of peace officers to collect evidence that can be used in establishing the guilt of a suspect beyond a reasonable doubt.  The legitimacy of the justice system would be but a mere illusion if the person arrested were allowed to destroy evidence in his possession at the time of the arrest....

 

However, while the common law gives the police the powers necessary for the effective and safe application of the law, it does not allow them to place themselves above the law and use their powers to intimidate citizens.  This is where the protection of privacy and of individual freedoms becomes very important.  [Emphasis added.]

 

In Cloutier v. Langlois, the minimal intrusion involved in a frisk search was held to reconcile the public's interest both in the effective and safe enforcement of the law and in protecting the freedom and dignity of individuals.

 


147                    At the outset, as my colleague Cory J. notes, the search and seizure in dispute may not be validated by considerations of urgency or the existence of exigent circumstances.  In my view, however, the right to secure evidence at the time of arrest should not be confined to cases of urgency or necessity.  To hold otherwise would be completely at odds with the ultimate purpose of the criminal justice system which is precisely to convict those found guilty beyond a reasonable doubt (Cloutier v. Langlois, supra, at p. 182).  By so muzzling the ability of the police to secure evidence without any further inquiry into the manner in which it is obtained or the need for such evidence in order to establish the guilt of a suspect beyond a reasonable doubt, or, conversely, to create such a doubt, we are in fact undermining the effectiveness and the fairness of the criminal justice system which largely depends on the active role of the police in the investigation of crime.

 

148                    The view that the right to secure evidence as an incident of arrest does not depend on the existence of urgency or exigent circumstances and may be extended to include securing any evidence which may assist the police in the investigation and the eventual prosecution of the arrested person has been recently expressed by the British Columbia Court of Appeal in R. v. Smellie (1994), 95 C.C.C. (3d) 9, at pp. 23-24 (leave to appeal to the S.C.C. refused June 8, 1995, [1995] 2 S.C.R. ix). See also R. v. Garcia (1992), 72 C.C.C. (3d) 240 (Que. C.A.), at p. 251; R. v. Lerke (1986), 49 C.R. (3d) 324 (Alta. C.A.), at p. 335; R. v. Morrison (1987), 58 C.R. (3d) 63 (Ont. C.A.), at p. 68; R. v. Miller (1987), 38 C.C.C. (3d) 252 (Ont. C.A.), at p. 257; R. v. Debot (1986), 54 C.R. (3d) 120 (Ont. C.A.), at p. 136 (affd without reference to this point [1989] 2 S.C.R. 1140); R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), at p. 110; R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136 (Ont. H.C.); P. Béliveau, J. Bellemare and J.‑P. Lussier, On Criminal Procedure (1982), at p. 200; B. P. Archibald, The Law of Arrest, in V. M. Del Buono, ed., Criminal Procedure in Canada (1982), 125, at pp. 157-58; R. E. Salhany, The Police Manual of Arrest, Seizure & Interrogation (6th ed. 1994), at p. 75.  Further support may be found in cases which have held the seizure of bodily samples to fall within the common law power of search upon lawful arrest: Alderton, supra, at p. 208; R. v. Schweir, [1993] O.J. No. 3404 (Gen. Div.), at para. 40.

 


149             There is no reason, in my view, to limit the right to secure evidence to situations of necessity such as to exclude, in all cases, the taking of bodily samples and impressions from a lawfully arrested person.  Indeed, just as “[t]he legitimacy of the justice system would be but a mere illusion if the person arrested were allowed to destroy evidence in his possession at the time of the arrest” (Cloutier v. Langlois, supra, at pp. 182-83), “[s]imilar illegitimacy would ensue if an arrested person was able to isolate his hair, saliva and blood from the justice system’s search for the truth” (Schweir, supra, at para. 42 (per McIsaac J.)).

 

150             In addition to the case law noted above on the taking of bodily substances, such as hair, saliva or mucous, intended for DNA typing comparison, a compelling analogy may be also drawn with fingerprinting as a commonly accepted investigative tool at common law (Beare, supra, at p. 405).  As in the case of fingerprinting, the methods by which hair and saliva samples may be obtained are quite straightforward and involve little if any inconvenience.  Vigorous combing will generally suffice to obtain root sheath hair and saliva samples may be secured by such simple means as a buccal swab or a piece of gum chewed by the person.  As well, the genetic code contained in DNA found in every human cell is specific to each individual, like fingerprints, but much more precise (G. M. Chayko, E. D. Gulliver and D. V. Macdougall, Forensic Evidence in Canada (1991), at pp. 302-5).  As such, the powerful value of DNA evidence may assist the criminal justice system in identifying with greater certainty those who have committed serious offences and, in some cases, in establishing a person’s innocence (R. v. Morin (1995), 37 C.R. (4th) 395 (Ont. C.A.)).  Indeed, “[p]romptitude and facility in the identification and the discovery of indicia of guilt or innocence are of great importance in criminal investigations” (Beare, supra, at p. 404 (per La Forest J.)).

 


151                    In Alderton, supra, for instance, hair samples, both pulled and already fallen, had been seized upon an arrest for break, enter and sexual assault.  Martin J.A., delivering the unanimous judgment of the Ontario Court of Appeal, wrote, at p. 209:

 

In this case, Detective Ashton had reasonable grounds to believe that the analysis of hair samples from the appellant would connect him with the offence.  The taking of hair samples was not accomplished by violence or threats of violence and we are all of the view that the taking of the hair samples, in the circumstances of this case, and having regard to the serious nature of the offence, did not contravene s. 8   of the Charter .

 

See also Schweir, supra.  It is also worth noting that, in the United States, a variety of types of bodily samples have been validly admitted as evidence seized pursuant to a search incident to arrest: see, for example, with regard to hair samples, United States v. Weir, 657 F.2d 1005 (8th Cir. 1981); urine samples, Ewing v. State, 310 N.E.2d 571 (Ind. 1974); dental impressions, Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990); and pubic hair, State v. Cobb, 243 S.E.2d 759 (N.C. 1978); W. R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996), vol. 3, at pp. 132-34.

 

152                    As in the case of bodily substances obtained for DNA testing purposes, the recent importance of bite-mark analysis in forensic sciences is illustrated by the absence of judicial authority on the scope of the power of search incidental to arrest as regards dental impressions (Chayko, Gulliver and Macdougall, supra, at p. 377).  Like fingerprinting, no bodily substance is removed and minimal discomfort is involved in the taking of dental impressions, which are made by placing certain materials in the persons mouth for a short period of time; but contrary to fingerprinting, as the taking of saliva samples, it does involve an intrusion into a body cavity.

 


153                    Admittedly, plucking hair or taking buccal swabs or dental impressions from a person is of a more intrusive character than, say, subjecting a person to a frisk search.  It is striking to note, however, that more offensive investigative procedures have been permitted at common law, despite their serious impact on the bodily integrity of the person, on the basis of the underlying law enforcement objective of the search power upon arrest.  As La Forest J. commented in Bearesupra, at pp. 403-4, in the context of the power to fingerprint a lawfully arrested person:

 

It should be observed that the common law permitted a number of other, in my view more serious, intrusions on the dignity of an individual or persons in custody in the interest of law enforcement.  As an incident to a lawful arrest, a peace officer has a right to search the person arrested and to take any property the officer reasonably believes is connected with the offence charged, or any weapon found upon such person; see R. v. Morrison (1987), 20 O.A.C. 230.  This authority is based on the need to disarm an accused and to discover evidence.  In the course of custodial arrest an accused may be stripped.  Of particular relevance, height, weight and natural or artificial marks on the body, such as birth marks or tattoo marks, may be used for purposes of identification; see Adair v. MGarry, [1933] S.L.T. 482 (J.)

 

 

These procedures have been permitted because of the felt need in the community to arm the police with adequate and reasonable powers for the investigation of crime.

 


154                    For instance, given that it is generally the possession of drugs which constitutes the commission of drug-related offences and in light of the difficulty to control the drug trade, mouth and rectal searches have been recognized as justified exercises of the polices power of search incidental to arrest in that context: R. v. Brezack (1949), 96 C.C.C. 97 (Ont. C.A.); Reynen v. Antonenko (1975), 20 C.C.C. (2d) 342 (Alta. S.C.T.D.), at pp. 348-49; Scott v. The Queen (1975), 24 C.C.C. (2d) 261 (F.C.A.); R. v. Truchanek (1984), 39 C.R. (3d) 137 (B.C. Co. Ct.).  If such intrusive investigative procedures have been held to fall within the scope of the search power incidental to arrest, I fail to understand why the taking of bodily samples and impressions for DNA testing should be treated differently.  The taking of such samples and impressions should be allowed, albeit under strict guidelines, in the case of highly reprehensible crimes, such as murder or sexual abuse, where the identity of the person may be difficult to establish otherwise, considering the fact that such crimes may typically occur in private.

 

155                    The fact that Parliament chose to create a statutory warrant procedure for the seizure of certain bodily substances for DNA analysis purposes does not, in my view, militate against the proposition that the common law does permit the taking of bodily substances and impressions as an incident of arrest.  The purpose of the Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis) (Bill C-104) was not to introduce the practice of DNA typing as a new investigative tool which would otherwise be prohibited, but rather to clarify the state of the law as to the circumstances in which it is to take place.  This was clearly stated by the Hon. Allan Rock, Minister of Justice, in the House of Commons Debates, vol. 133, No. 224, 1st Sess., 35th Parl., June 22, 1995, at p. 14489:

 

In examining what the bill will accomplish, it is important to be clear regarding the present state of the law in Canada.  What we are proposing is not in any sense revolutionary nor is it an ill-prepared step into unchartered territory.

 

Section 487.1  of the Criminal Code , a general warrant provision, currently allows for this type of procedure to take place.  DNA samples are used in the courtrooms in this country on a regular basis.  As I have previously said, they have figured in more than 1,000 cases.

 

The difficulty has been in the absence of an expressed authority in the criminal law to remove any doubt about the legitimacy of the practice, leaving room for challenge, leaving uncertainty in the law about the circumstances in which samples can be taken and the manner in which they can be put to use as proof.

 


See also: Law Reform Commission of Canada, Report 25, Obtaining Forensic Evidence (1985), at p. 12.

 

156                    Obviously, however, the legitimate needs of law enforcement may not, in every case, justify the exercise of the right to secure evidence, particularly where interference with the bodily integrity of the person is involved.  The question, as I see it, is not so much whether bodily substances and impressions may be taken from a person upon his or her arrest, but rather concerns the circumstances and the manner in which evidence of that nature may legally be obtained.  For instance, it is generally accepted that the police may seize hair found on a lawfully arrested persons clothing or, where consent is given, pluck a persons hair.  In line with this distinction, this Court has repeatedly recognized the importance of protecting the individuals privacy from state interference, but only to the extent that such interference is unreasonable.  This Court has also acknowledged the corresponding need for clear rules guiding not prohibiting police conduct in the sensitive areas where law enforcement objectives and privacy interests interplay (Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Simmons, [1988] 2 S.C.R. 495).

 

157                    Given the variety of circumstances in which bodily samples and impressions may be obtained, concerns relating to the protection of the bodily integrity of the person should be considered in determining the validity of the exercise of the power of search incidental to arrest rather than in delimitating the scope of such power.  This brings us to the factors which must guide the police in deciding whether they may legally obtain bodily samples and impressions from a person under their power of search incidental to arrest.


B.  Exercise of the Power of Search Incidental to Arrest

 

158                    The distinction between the scope of the power of search incidental to arrest and its exercise was clearly drawn in Cloutier v. Langlois, supra.  Although reasonable and probable grounds were not held to be a prerequisite to the existence of the polices power of search as an incident of arrest, the validity of the exercise of such power at common law was nevertheless carefully circumscribed by three general propositions (at p. 186):

 

1.  This power does not impose a duty.  The police have some discretion in conducting the search.  Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search.  They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.

 

2.  The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.  The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.

 

3.  The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.  [Emphasis added.]

 

159                    By contrast with the relatively non-intrusive nature of a frisk search (Cloutier v. Langlois, supra, at p. 185), a search more seriously interfering with the bodily integrity of the person, such as the taking of bodily substances and impressions, requires a higher degree of justification (Hunter v. Southam Inc., supra, at p. 168; Simmons, supra, at p. 517).  More precisely, as S. A. Cohen puts it, in Search Incident to Arrest (1989-90), 32 Crim. L.Q. 366, at p. 375:


As one proceeds along this escalator of progressively more intrusive forms of search, the requirement that the officer possess reasonable grounds to search becomes ever more important.  Whatever may be the merits of recognizing the right of the officer to carry out the search as a mere incident of the arrest and without additional justification or cause in cases involving minimally intrusive searches, the requirement of cause to search surely becomes more acute as the degree of intrusion inherent in the search increases.  [Emphasis added.]

 

Although acknowledging that the justification for allowing more intrusive searches without a warrant may be weakened, the author suggests, at p. 377:

 

An alternative approach would be to dispense with the need for a warrant but to subject the police conduct to greater scrutiny by imposing a higher degree of persuasion or justification in cases of intrusive searches.   This approach would avoid overburdening the process with the need to seek the approval of a judicial officer.

 

160                    Since the common law must be developed in a manner consistent with Charter  values (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 603; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at pp. 878 and 911; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paras. 91 and 206), this Court has held that, consistent with s. 8  of the Charter , a search will not be wrongful if it is authorized by law, if the law itself is reasonable and if the search is conducted in a reasonable manner (Collins, supra, at p. 278).  I have already demonstrated that the search in question here was authorized by law under the common law search power incidental to arrest.  The next hurdle relates to the requirement that the guidelines for the exercise of such power survive Charter  scrutiny.

 


161                    The purpose of s. 8  of the Charter  is to protect the individual, not against all state intrusions as such, but only against those intrusions which are unreasonable.  As Dickson J. (as he then was), for the Court, wrote in Hunter v. Southam Inc., supra, at pp. 159-60:

 

The guarantee of security from unreasonable search and seizure only protects a reasonable expectation [of privacy].  This limitation on the right guaranteed by s. 8  . . . indicates that an assessment must be made as to whether in a particular situation the publics interest in being left alone by government must give way to the governments interest in intruding on the individuals privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original.]

 

The Court further held (at p. 161) that, where it is feasible to obtain prior authorization, a warrantless search and seizure is prima facie unreasonable and the Crown has the burden of rebutting that presumption (Collins, supra, at p. 278).  In this respect, as I already noted, at the time this case was investigated, it was not feasible to obtain prior authorization since the police had no recourse to a warrant procedure to secure the type of evidence they sought. Had it in fact been possible to secure a warrant for the search at issue, this factor would have had a substantial effect upon the assessment of the reasonableness of the warrantless search in this case.  

 


162                    It follows that, in order to meet the constitutional reasonableness requirement under s. 8 , the polices discretion in exercising their search power incidental to arrest must be informed by clear guidelines which strike a proper balance between societys interest in detecting and punishing crime and the individuals interests in personal privacy and autonomy over his or her own body.  Such guidelines should provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them (Hunter v. Southam Inc., supra, at p. 167).  Moreover, the situations in which the taking of bodily samples or impressions will be constitutionally permissible should be limited and narrowly defined in order to ensure that resort to such investigative techniques without prior authorization remain the exception, not the rule.  See generally Cohen, supra, at pp. 374-78; LaFave, supra, at pp. 130-41.

 

163                    The following guidelines, which incorporate the three general propositions outlined in Cloutier v. Langlois, properly weigh and safeguard the competing interests at issue where the taking of bodily samples or impressions occurs as an incident to arrest.  Such guidelines, in my view, are thus reasonable within the meaning of s. 8  of the Charter .

 

164                    1.  The police must exercise their discretion, given all of the circumstances, in deciding whether to conduct a search for the purpose of obtaining bodily samples and impressions from a lawfully arrested person.

 

165                    2.  The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of evidence which might either incriminate or establish the innocence of the person under arrest, without running counter to the general objectives of the proper administration of justice.

 


166                    3.  Consideration must be given to the intrusiveness involved in the search: the more intrusive, the higher the threshold for finding that the taking of bodily samples or impressions is both justified and conducted in a reasonable manner in given circumstances.  This is a matter of degree as well as common sense.  While I agree with my colleague Cory J. that particular concerns arise where a search involves a persons bodily integrity, it must also be underscored that those concerns vary along the spectrum of possible investigative tools in respect of the person.  Obviously, seriously intrusive procedures such as extracting blood or pumping the content of a persons stomach should not be permissible as a mere incident to arrest.  By contrast, the states law enforcement interests in undertaking more commonplace or routine procedures, which involve virtually no risk, trauma or pain for the person, may, exceptionally and in light of the totality of the circumstances, prevail over the privacy interests of the individual.  In this respect, it must be remembered that a person who is lawfully arrested must expect a significant loss of personal privacy (Beare, supra, at p. 413 (per La Forest J.)).

 

167                    4.  The police must have reasonable and probable grounds to conduct a search for the purpose of obtaining bodily samples or impressions from a lawfully arrested person.  In other words, the police must reasonably believe that the taking of such bodily samples or impressions is likely to yield highly relevant and probative evidence of, or in relation to, the offence for which that person is arrested.

 

168                    5.  The search must be predicated on sufficiently important circumstances in order to restrict the taking of bodily samples or impressions to situations where the states significant law enforcement interests might otherwise be jeopardized.  Those circumstances will generally be established where: (a) it is impracticable to obtain a warrant to secure the desired evidence; (b) such evidence cannot be obtained by a less intrusive means; (c) there is no alternative evidence available; (d) the offence for which the arrest was made is a serious one; and (e) public policy is served by the type of search at issue.

 

169                    6.  The manner in which the search is conducted must not be abusive or unreasonable given the totality of the circumstances.

 


170                    A search which does not comply with these requirements could be characterized as unreasonable at common law as well as under s. 8  of the Charter .  The determination of whether a search occurred legally as an incident to arrest will depend upon a balancing of these factors, and I stress that the result will not inevitably be that the search was, in fact, a lawful one.  To take one obvious example, seriously intrusive searches incident to arrest, as aforementioned, will generally be classified as unlawful even in circumstances similar to the case at bar.

 

171             Having determined the factors which should guide the exercise of the polices power to obtain bodily samples and impressions upon arrest and found that such factors satisfy the constitutional reasonableness requirement, the remaining question is whether such power was reasonably exercised in the circumstances.  Since different considerations arise from both the nature of the evidence in dispute and the manner in which it was obtained, I will deal separately with the tissue containing mucous and the other pieces of evidence.

 

C.  Application to the Facts

 

(1) The Tissue Containing Mucous

 

172                    I agree with my colleagues McLachlin and Major JJ. that the mucous sample was not obtained in violation of s. 8  of the Charter , since the appellant could not claim any right of privacy in this specimen.  Consequently, this evidence was admissible at trial.

 

(2) The Hair Samples, the Buccal Swabs and the Dental Impressions

 


173                    Applying the legal standard to the facts of this case, the evidence indicates that the police believed that, in all of the circumstances, it was necessary to obtain bodily substances and dental impressions from the appellant in order to  apply the law effectively.  Indeed, the police testified that, at the time of the appellants arrest, they could not have proceeded with the murder charge without the DNA typing evidence obtained from the appellants bodily substances or the bite-mark analysis of his teeth impressions.  Second, the search and seizure here in question took place in order to achieve a valid objective, that is the discovery of evidence which could have either incriminated or established the innocence of the appellant in relation to the murder with which he was charged.

 

174                    Third, the type of search and seizure at issue constituted, in my opinion, minimal affronts to the appellants bodily integrity.  Combing or plucking scalp hair is a procedure most people submit to daily without any risk, trauma or pain.  The same can be said for the taking of buccal swabs which involves even less, if any, discomfort.  The seizure of pubic hair, on the other hand, is more intrusive given it involves an intimate part of the body.  Similarly, because of the variable length of the procedure, the level of discomfort involved in the making of dental impressions may render such procedure more intrusive.  On the whole, however, given that the appellant was made to pull out some of his own pubic hair himself and that the dental impressions were made by a dentist according to professional standards, the taking of those specimens is not, in my view, of such an offensive character in the circumstances of this case that it would constitute an unreasonable search.

 


175                    In this regard, the appellants refusal to provide any bodily substance and the absence of his lawyers while the specimens here in question were seized, in my view, are irrelevant in assessing whether the police reasonably exercised their power of search incidental to arrest.  Once a search is found to fall within the scope of such power, as it is the case here, the police may, in accordance with the guidelines previously set out, proceed to search a lawfully arrested person, whether or not that person consents and whether or not his or her lawyer is present.  In the same line of thought, while it is true that the appellants bodily substances and teeth impressions could have been obtained later, this is not a relevant consideration.

 

176                    Fourth, I agree with the trial judge that the police had reasonable and probable grounds for taking bodily samples and dental impressions from the appellant.  The police had reasonable and probable grounds to believe that the appellant had murdered a young girl and did in fact believe that they had the authority to seize such evidence.  Given the results of the autopsy of the victim which revealed semen in her vagina and a human bite mark on her abdomen, the taking of the appellants bodily substances and teeth impressions was clearly not done in a vacuum or without a precise forensic reason.  In light of the reliability of the DNA typing evidence which would be obtained from the appellants bodily samples as well as the specificity of the appellants teeth impressions, such evidence was highly relevant and probative for the purpose of establishing whether or not the appellant was the murderer.

 


177                    Fifth, I believe that the evidence discloses circumstances of sufficient importance to justify the taking of bodily substances and dental impressions from the appellant.  The police could not have obtained a warrant to secure the type of evidence they sought and the appellants hair (with root sheaths), saliva and dental impressions could not have been obtained by less intrusive means than those that were used by the police.  Given the absence of any witness to the murder, there was no alternative evidence that the appellant committed the extremely serious offence for which he was arrested. 

 

178             I am further of the view that public policy is served by the type of search at issue.  The appellant was arrested in relation to the death of a young girl who had been viciously beaten and possibly sexually assaulted in the course of events.  Because crimes of this nature typically occur in private, the identity of the perpetrator is often very difficult to establish.  Where indicia such as bodily fluids or a human bite mark are found on the victims body, the possibility of resorting to DNA typing analysis or forensic odontology serves, in my opinion, societys substantial interest in deterring such crimes.

 

179                    For these reasons, I would conclude that the search and seizure of the evidence at issue was legal as incidental to arrest and conducted in a reasonable manner in the circumstances of this case given the seriousness of the offence as well as the unavailability of any legal authorization procedure at the time of the appellants arrest.  I wish to re-emphasize that had there been a procedure available in which the police could have obtained a warrant, it is highly likely that, given those circumstances, the search could indeed have been found to be an unreasonable one.

 

D.  Section 7  of the Charter 

 


180             The appellant has also argued that the taking of the dental impressions and hair samples violated his rights under s. 7  of the Charter  in that the intrusion  upon his person did not take place in accord with the principles of fundamental justice.  Given my conclusion that the manner in which the police obtained the evidence was, in fact, lawful, it follows that the search was also in accord with the principles of fundamental justice.  Had I concluded, however, that the polices conduct was unlawful, I would have agreed with Cory J. that a violation of s. 7  was the inevitable result.   

 

E.  Conclusion

 

181             In conclusion, I find that there was no breach of the appellants Charter  rights in the obtention of the evidence here in question, and that the trial judge and the majority of the Court of Appeal, albeit for different reasons, were correct in finding that such evidence was admissible at trial.

 

182                    Consequently, it is not strictly necessary to deal with a s. 24(2)  inquiry.  Nevertheless, given the importance of this issue in the reasons of Cory and McLachlin JJ., some comment is in order.

 

 

III.  Section 24(2)  of the Charter 

 


183             At the outset, I must say that I could not agree more with Cory J. that an invasion of a persons body is a serious intrusion which goes to that individuals personal dignity and privacy.  While I do not consider the bodily invasions which took place in the case at bar to have been of such a magnitude as those invoked by Cory J., I agree that in other circumstances, these types of searches could result in breaches of s. 8  and in certain cases s. 7  and thus necessitate a remedy under s. 24(2)  of the Charter .  Where I disagree with my colleague is what test would then apply under s. 24(2) .  In my view, the test set out by this Court in Collins mandates a consideration of all the factors and circumstances of an individual case, and this inquiry should not stop after examining the first of these factors: the effect of the admission of the evidence on the fairness of the trial.  In that regard, I completely agree with the analysis of McLachlin J.

 

184                    The framework set out in Collins, in my opinion, represents the proper approach to s. 24(2)  and efforts since then to explain, clarify, refine, extend, add to or distinguish Collins, have only served to further muddy the waters.  See, for instance, R. v. Ross, [1989] 1 S.C.R. 3; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Burlingham, [1995] 2 S.C.R. 206.  The inquiry has now become such a complicated exercise that I wonder how trial judges will ever be able to resolve the issues arising under s. 24(2)  in order to ensure that justice is done.  I am strongly of the view, in particular, that the classification of evidence proposed by my colleague Cory J., under the trial fairness aspect of the s. 24(2)  analysis, in terms of non-conscriptive real evidence and conscriptive evidence (which includes derivative evidence), with their possible extension to all kinds of unforeseen situations, is, in my view, an unfortunate development.  As I said in Burlingham, supra, where I expressed my concerns at length, at paras. 108-9:

 

The thrust of my criticism of this Court's recent jurisprudence on s. 24(2)  is that we may be digging ourselves into a hole.  If we are to create a test of absolute exclusion to further the purposes of s. 24(2) , then I believe that we must not define that test so broadly as to risk frustrating the text of s. 24(2) , which calls upon courts to evaluate all of the circumstances in preserving the reputation of the justice system.  I therefore prefer to formulate any absolute exclusionary rules more narrowly than most of my colleagues. 

 


In my view, it is most consistent both with our common law approach to exclusion and with the purposes of s. 24(2)  of the Charter  to confine an absolute exclusionary rule to circumstances in which the unconstitutional conduct of state authorities is responsible for evidence which may possibly be unreliable.  I do not feel that the nature of the evidence (real vs. self-incriminatory, or discoverable vs. undiscoverable) should be determinative of absolute exclusion.  For my part, I believe that a viable distinction can and must be drawn between evidence whose admission potentially touches upon the adjudicative fairness of the hearing and evidence which is obtained in a manner which does violence to the integrity of the judicial system.  Whereas the former must almost inevitably be excluded, the latter must be evaluated having regard to all of the circumstances.  [Emphasis added.]

 

185                    Under the classification put forward by my colleague, evidence will be found to be conscriptive if the accused is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples (para. 80), or if other types of evidence are discovered because of a statement by the accused.  Applying this criterion to the facts of this case, since the police, by their words and actions, compelled the appellant to participate in providing the evidence (para. 120), my colleague concludes that the hair samples, the buccal swabs and the dental impressions constitute conscriptive evidence.  Pursuant to this reasoning, I fail to imagine a situation in which, absent the accuseds informed consent, bodily samples seized while the accused is under the control of the state would not be conscriptive evidence.  Indeed, the detention itself is a clear form of state compulsion.  In that perspective, any bodily substance emanating either naturally or by accident from the accused while he or she is under the states control would qualify as conscriptive evidence since the accused has no means of preventing such emanations.

 

186             In the course of their reasons, my colleagues Cory and McLachlin JJ. have concentrated upon two issues concerning the application of s. 24(2) .  The first concerns what types of evidence will tend to render a trial unfair, under the first branch of factors as set out in Collins; the second is whether evidence which attracts the trial fairness designation must automatically be excluded.  I propose to briefly address each of these issues.

 


187             Regarding the first point, I have consistently maintained that the trial fairness concern arises solely where the accused is compelled as a result of a Charter  breach to participate in the creation or discovery of self-incriminating evidence, and that this protection against self-incrimination is confined to testimonial evidence.  In a number of my dissenting opinions, beginning with Ross, supra, at p. 19, and R. v. Duguay, [1989] 1 S.C.R. 93, at p. 126, and continuing more recently in R. v. Bartle, [1994] 3 S.C.R. 173, at p. 227, I have repeatedly advocated this approach.  In this respect, in S. (R.J.), supra, albeit in the context of fundamental justice, this Court had occasion to discuss the purpose and the scope of the principle against self-incrimination.  The comments I made then, at para. 260, also remain apposite in the present case:

 

Both the common law and the Charter  draw a fundamental distinction between incriminating evidence and self‑incriminating evidence:  the former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his own admission, or based upon his own communication.  The s. 7  principle against self‑incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused's guilt on the basis of the latter grounds, but not the former. [Emphasis in original.]

 

188             In addition, as I stated in Burlingham, supra, at paras. 88 and 94:

 


In my opinion, evidence is capable of affecting "trial fairness", as that term is employed in the first branch of Collins, where its admission could give rise to concerns analogous to, or falling within, the rubric of the Reliability Principle, outlined above.  Where, by contrast, the complaint about the impugned evidence is, for instance, that it would not have been obtained "but for" the rights violation, then this complaint relates more fundamentally to the Fairness Principle.  The objection to the admission of the evidence is not that it has the potential to mislead a trier of fact or convict an innocent person, but rather that the manner in which the authorities obtained the evidence was fundamentally unfair, and erodes values that are fundamental to our society.  I therefore believe that the fact that the evidence could not have been obtained "but for" the rights violation is more accurately viewed as a relevant consideration to the second branch of the Collins framework: the impact of the seriousness of the rights violation on the reputation of the justice system.

 

                                                                    ...

 

As I have already mentioned, the first set of factors relates to the exclusion of evidence which may offend the Reliability Principle.  Where anything done by the authorities casts some doubt as to the accused's having been induced to make a possibly unreliable statement, then the evidence obtained under such circumstances touches upon the Reliability Principle.  This set of factors relates to any circumstances under which a person may be convicted of an offence of which he or she is innocent.  As such, they relate to the fairness of the trial and its corollary, the right to make full answer and defence.  The admission of unconstitutionally obtained evidence which may render the trial unfair in this manner could bring the administration of justice into disrepute in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances. [Third emphasis added.]

 

 

189                    As a consequence, I do not disagree with McLachlin J. and her analysis on this point. Therefore, inasmuch as the nature of the evidence is relevant under s. 24(2) , I am of the view that it is only where the accused is compelled to participate in the creation or discovery of “evidence which tends to establish the accused's guilt by his own admission, or based upon his own communication” that the admission of such evidence could, under some circumstances, bring the administration of justice into greater disrepute than its exclusion. 

 

190             With regard to the second question, as to whether evidence which affects the fairness of the trial must inevitably be excluded under s. 24(2) , I would respond in the negative.  Like McLachlin J., I am of the view that a proper consideration of all the circumstances demands a balancing of each set of factors  set out in Collins.

 

191             This is an approach I believe is consistent with the wording, as well as  the principles upon which s. 24(2)  is based.  As Professor Stuart has recently stated:

 


Accepting that the court is committed to the Collins test, it should insist that, even where the evidence affects trial fairness in the sense that the accused were conscripted against themselves in the creation of evidence, there must be a full consideration of the other Collins factors of seriousness of violation and repute of the administration of justice. 

 

Discoverability of the evidence may be a factor under these inquiries but it should only be one of the factors and it should not be determinative.  Section 24(2)  calls for discretion in all circumstances rather than a simplistic rule.

 

 

D. Stuart, Questioning the Discoverability Doctrine in Section 24(2)  Rulings (1996), 48 C.R. (4th) 351, at pp. 355-56.  See also D. Stuart, Burlingham and Silveira: New Charter Standards to Control Police Manipulation and Exclusion of Evidence (1995), 38 C.R. (4th) 386, at p. 395.   On this issue at least, Professor Stuart and I are in agreement.  This is the approach I have consistently advocated for s. 24(2) .  For further comment on this point, see: Ross, supra; Duguay, supra; Burlingham, supra.

 

192             This being said, since the admissibility in evidence of the discarded tissue containing mucous, the hair samples, the buccal swabs and the dental impressions, all of which I find to be admissible, was the only ground of appeal raised by the appellant, I would dismiss the appeal.

 

//Gonthier J.//

 

The following are the reasons delivered by

 


193             Gonthier J. (dissenting) -- I concur with Justice LHeureux-Dubé and also expressly agree with the reasons of Justice McLachlin as to the scope of the principle of self-incrimination and the proper analytical approach to the determination of admissibility of evidence under s. 24(2)  of the Canadian Charter of Rights and Freedoms 

 

//McLachlin J.//

 

The following are the reasons delivered by

 

194                           McLachlin J. (dissenting) -- The appellant was arrested following the brutal sexual murder of a teenage girl.  The police took samples of his hair,  buccal swabs, dental impressions and a tissue containing mucous fluid from him while he was in custody.  DNA tests on these items linked the appellant to the murder.  The trial judge held that the evidence pertaining to the hair samples, buccal swabs and dental impressions had been taken in violation of the appellant’s Charter  rights, but ruled the evidence nevertheless admissible under s. 24(2)  of the Canadian Charter of Rights and Freedoms  on the ground that its admission would not bring the administration of justice into disrepute:  [1993] N.B.J. No. 625 (Q.B.).  The appellant was convicted.   The New Brunswick Court of Appeal, Rice J.A. dissenting, upheld the trial judge’s ruling and the conviction:  (1995), 159 N.B.R. (2d) 321, 409 A.P.R. 321, 97 C.C.C. (3d) 164.  The majority of this Court would reverse these rulings, set aside the conviction, and order a new trial.  With respect, I cannot agree.  I find no error in the rulings of the New Brunswick courts.  I agree with them that while taking the hair samples, the buccal swabs, and the dental impressions  violated  the appellant’s freedom from unreasonable search and seizure, admission of the evidence would not bring the administration of justice into disrepute.  I would affirm the appellant’s conviction.

 

I.  Did the Conduct of the Police  Violate the Appellant’s Charter  Rights?

 


A.  What Rights Are at Stake?

 

195  It is first necessary to determine what Charter  rights are at stake in this case.   The New Brunswick courts treated the taking of the hair, buccal swabs, dental impressions and tissue as seizures, to be dealt with under s. 8  of the Charter  which guarantees the individual freedom from unreasonable search and seizure.

 

196  The appellant accepts that the taking of  the hair, buccal swabs, dental impressions and tissue are most naturally  examined under the principles that govern searches and seizures.  The appellant was searched.  These things were taken.  Similar police conduct has traditionally been considered under the rubric of search and seizure.

 


197  The appellant argues, however, that the searches and seizures also violated s. 7  of the Charter , which provides that a person’s life, liberty and security of the person may be violated only in accordance with the principles of fundamental justice. The searches and seizures affected his “liberty” because they were used to assist in his prosecution.  It is more doubtful whether they affected his “security of person”, which has not to date been extended beyond medical treatment:  R. v. Morgentaler, [1988] 1 S.C.R. 30; P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992), at p. 1029. However, establishing a state act that affects liberty or security of person does not necessarily  violate  s. 7 .   The act must also have been carried out in contravention of  a principle  of fundamental justice for s. 7  to be invoked.  The  principle of fundamental justice  engaged here, the appellant argues, is the privilege against self-incrimination.  The searches and seizures at issue, it is argued,  required the appellant to incriminate himself.  Therefore a conviction based on this evidence violates a principle of fundamental justice and hence s. 7  of the Charter .  Another way of making the same argument is to say that it is a principle of fundamental justice that the accused have a fair trial.  The use of evidence taken in violation of the privilege against self-incrimination renders the trial unfair.  The appellant asserts that this violates a principle of fundamental justice and hence s. 7  of the Charter 

 

198  Both variations of the argument rest on the premise that the searches and seizures here at issue engage the principle of fundamental justice known as the privilege against self-incrimination.  In my view, this premise is faulty.  The  privilege against self-incrimination is confined to testimonial evidence.  It has never extended to the search of persons or premises or to the seizure of physical evidence, except in the case of physical evidence derived from testimonial evidence.

 

199  Section 7  of the Charter  does not purport to enlarge the common law principle against self-incrimination.   The framers of the Charter , when they used the term “principles of fundamental justice”, must be taken to have had in mind the principles of fundamental justice which actuated the common law system into which the Charter  was introduced: R. v. Hebert, [1990] 2 S.C.R. 151.  The more specific language of some of the other sections of the Charter  may permit the inference that the framers of the Charter  intended to alter common law rights and amplify the principles of fundamental justice.  The Charter , however, makes no mention of a general right against self-incrimination, much less of expanding it.  We are therefore cast back to the common law.  The question is this: what was the extent of the privilege against self-incrimination at common law?

 


200  The privilege against self-incrimination at common law found expression in the confessions rule, the right to silence, and rules protecting witnesses from the use of their testimony against them in other proceedings.  All these rules were concerned exclusively with testimonial evidence.  The confessions rule held that involuntary statements made to persons in authority were inadmissible.  The right to silence prevented the state from forcing a person suspected or accused of a crime to give a statement to the police or the court.  Finally, statutory provisions protecting witnesses from subsequent use of their statements against them sought to give protection equivalent to the right to silence to persons not on trial.  These rules find their origin in the abhorrence of the coercive “Star Chamber” practices which characterized British justice as late as the 16th century:  L. Herman, “The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part I)” (1992), 53 Ohio St. L.J. 101.  They rest on the premise that a suspect cannot be coerced to give evidence against himself or herself.  The suspect has the right to choose whether to make a statement or not.   The right to choose whether or not to make a statement which may be used in evidence against oneself is a right that lies at the heart of the principle against self-incrimination.  It was this right that  led this Court in Hebert, supra, to conclude that the confessions rule at common law could reasonably be viewed as excluding statements obtained through police trickery.  It was not suggested, however, that the principle against self-incrimination had any application outside the realm of testimonial evidence.

 


201  The common law “carved a sharp and clear line between cases where accused persons were compelled to answer allegations made against them and cases where they were forced to participate in the provision of physical evidence”: D. M. Paciocco, “Self-Incrimination:  Removing the Coffin Nails” (1989), 35 McGill L.J. 73, at p. 85.  Professor Paciocco notes at pp. 85-86 that “[p]re-Charter Supreme Court judgments denied consistently that the concept of self-incrimination had anything to do with the obtainment of real evidence from accused persons, even where the obtainment of the evidence required a degree of forced co-operation such as where the accused was compelled to participate in a line-up” (Marcoux v. The Queen, [1976] 1 S.C.R. 763) “or to provide breath or blood samples” (Hogan v. The Queen, [1975] 2 S.C.R. 574).  See also Attorney General for Quebec v. Bégin, [1955] S.C.R. 593 (blood samples);  Validity of Section 92(4) of the Vehicles Act, 1957 (Sask.), [1958] S.C.R. 608 (breath samples).  Professor Paciocco concludes (at p. 77):

 

Often, accused persons are asked or even required to participate in their own prosecutions through the provision of real evidence, such as breath or blood samples, or fingerprints.  Traditionally, real evidence obtained from accused persons was left unprotected by the principle against self-incrimination, and it was much more likely to be admitted than compelled testimonial evidence.  This dichotomy of protection was a principled one and should continue to be mirrored in the Charter  jurisprudence.  [Emphasis added.]

 

 

202  Professor Paciocco offers three reasons for the distinction that the common law has drawn between testimonial evidence and real evidence.  The first relates to the reliability of the information provided.  The primary function of evidence is to produce correct determinations of fact.  Testimonial evidence is more likely to be misleading than real evidence.  The prohibition of threats and promises running throughout the confessions cases is frequently linked to the danger that confessions obtained by these means may be inaccurate and may lead to the ultimate bane of any civilized system -- the conviction of an innocent person.  Additional dangers of testimonial evidence include the possibility that the witness was mistaken, that the witness’s recollection may be faulty, that misunderstanding may arise through incomplete or inarticulate wording of testimony, and that the witness may be deliberately lying.  None of these dangers exist with real evidence, where the physical thing is available for examination and, in many cases, may be directly observed by the trier of fact: R. v. Nikolovski, [1996] 3 S.C.R. 1197, per Cory J.  It is thus not surprising, Professor Paciocco opines, “to find absolute rules of exclusion related to compelled testimonial evidence, but not to rules about the proof of real evidence” (p. 87).


 

203  The second reason for the common law’s refusal to extend rules protecting against self-incrimination to non-testimonial evidence concerns the causal connection between improper police conduct and the evidence.  In the case of testimonial evidence, the causal connection is direct.  The confession would not have existed “but for” the improper pressure, inducement or exploitation of the accused.  The wrongful act, in a very real sense, creates the information, which would not have existed without it.  This is not the case with real evidence.  Real evidence -- be it the murder weapon or the accused’s blood -- exists independently of the police conduct.  Even where real evidence  would not have been found “but for” the improper conduct of the police, the evidence it reveals is usually there to be discovered.  For example, in the case at bar, had the police not taken the appellant’s hair, dental imprint or discarded tissue, the DNA evidence and the evidence of his bite which they produced  would have still existed, and quite possibly have been discovered by the police in a more legitimate way.   This Court has held that the independent existence and ultimate discoverability of real evidence may lead to its admission when a statement taken in similar circumstances is excluded: R. v. Black, [1989] 2 S.C.R. 138, per Wilson J. for the unanimous Court.  The distinction is necessary since to exclude the real evidence in such a case would “accomplish more than perfect restitutio in integrum between the parties; by causing the state to lose the evidence completely, it may well be put in a position that is worse than if the constitutional violation had never occurred” (Paciocco, supra, at p. 88).  Where the real evidence is obtained as a result of an involuntary statement it may attract derivative testimonial privilege provided it would not have been otherwise discoverable.  But this does not negate the fact that real evidence generally exists independently of police misconduct.

 


204  To these two reasons for the common law’s refusal to extend the self-incrimination principle to real evidence, Professor Paciocco adds a third, the heightened degree to which compelled testimonial evidence violates personal autonomy and privacy of mind (at p. 88):

 

... there is something in the nature of the seizure of the information stored in the memory of an accused person which makes it more reprehensible than the taking of real or physical evidence from his or her person.  By its very nature that which is in the mind of the accused person is more private than that which is physically possessed.  It is certainly less accessible.  What exists can usually be observed by a third party without a willed act of participation by the accused.  Physical characteristics used to identify an accused and the possession of objects by the accused can be observed without his or her participation.  Even bodily specimens can be forcibly taken from an accused who continues to resist.  Information stored in the recesses of the mind can become available for use against the accused, however, only through an act of the accused.  He or she must be a full participant in its creation by making a conscious decision to speak.  In this sense, the seizure of involuntary statements involves an overbearing of the will of the individual to resist and conscripts the accused in a way that the seizure of physical evidence does not.  It is an act of the self which ultimately leads to the evidence.  The privacy of the mind, the last refuge of the individual, is invaded with the enforced complicity of the accused.

 

 


205  These reasons for the common law confinement of the principle against self-incrimination to testimonial evidence may be supplemented by a fourth.  To render illegal the compelled use of the accused’s body in gathering evidence against the accused would be to render inadmissible many kinds of evidence which have long been routinely admitted.  The identification witness who says, “I recognize the man in the prisoner’s box as the person I saw at the scene of the crime”, is using the accused’s body against him.  Standard police techniques such as photographing the accused or requiring him to appear in an identification line-up similarly depend on using the accused’s body against him, usually without consent.  The principle against self-incrimination provides no means to distinguish between the police photo and more serious incursions of the suspect’s body.  The principle of protection against unreasonable search and seizure, on the other hand, provides such means.  The principle against self-incrimination applied to physical evidence is a blunt tool, requiring either distortion or supplementation if it is to operate fairly and practically.  The principle against unreasonable search and seizure, by contrast, evokes a body of jurisprudence aimed at aiding the court in making the necessary distinctions between permissible use of the suspect’s body and impermissible use of the suspect’s body.  For this reason, Holmes J. in Holt v. United States, 218 U.S. 245 (1910), referred to the argument that evidence of an accused’s non-consensual modelling of a blouse violated the privilege against self-incrimination as “an extravagant extension of the Fifth Amendment” (p. 252).

 

206  That great chronicler of the common law of evidence, Wigmore, offers a detailed discussion of the fundamental distinction that the common law drew between compelled testimonial evidence and compelled real evidence. He begins by asking the question which occupies us at this point:

 

 

Does [the privilege] apply only (1) to self-incriminating disclosures which are testimonial (i.e., communicative, or assertive) in nature?  Or (2) to self-incriminating disclosures which, whether or not testimonial, involve cooperative participation by the witness? Or (3) to all evidence obtained from a witness which incriminates him, whether or not his cooperation is involved?  [Emphasis in original.]

 

(Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), §2263, at p. 378.)

 

 

He concludes that the answer is the first; the privilege against self-incrimination is confined to testimonial disclosures (at pp. 378-79):

 


It should be agreed, at least, that evidence satisfying only the third description -- evidence obtained from a witness without compelling his cooperation, testimonial or otherwise, is not within the privilege.  E.g., viewing, measuring, placing a hat on and even moving a limb of the relaxed body of the individual do not offend the policies of the privilege ... and are not the sort of things which historically gave rise to the privilege....  There is an understandable difference of opinion, however, as to whether it is the first or the more inclusive second description which correctly circumscribes the form of disclosure protected.  Compare, e.g., (1) requiring the witness to make a verbal communication of an incriminating fact (testimonial cooperation), with (2) requiring him to write a sample of his handwriting for comparison purposes (nontestimonial cooperation).

 

The history of the privilege ... -- especially the spirit of the struggle by which its establishment came about -- suggests that the privilege is limited to testimonial disclosures.  It was directed at the employment of legal process to extract from the person’s own lips an admission of guilt, which would thus take the place of other evidence.  That is, it was intended to prevent the use of legal compulsion to extract from the person a sworn communication of his knowledge of facts which would incriminate him.  Such was the process of the ecclesiastical court, as opposed through two centuries -- the inquisitorial method of putting the accused upon his oath in order to supply the lack of the required two witnesses.  Such was the complaint of Lilburn and his fellow objectors, that he ought to be convicted by other evidence and not by his own forced confession upon oath.

 

Such, too, is the main thrust of the policies of the privilege....  While the policies admittedly apply to some extent to nontestimonial cooperation, it is in testimonial disclosures only that the oath and private thoughts and beliefs of the individual -- and therefore the fundamental sentiments supporting the privilege -- are involved.

 

In other words, it is not merely any and every compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion.  The latter idea is as essential as the former.  [Italics in original; underlining added.] 

 

207  In a subsequent passage, Wigmore addresses more directly the question of bodily condition (§2265, at pp. 386 et seq.) covering 11 categories of which the first six were easily considered as not covered by the privilege against self-incrimination.  Wigmore acknowledges that the remaining categories are  more difficult to analyse since they demand the co-operation of the accused person.  However, he concludes that they  nevertheless do not engage the privilege against self-incrimination because they generally do not compel communication.  The 11 categories are as follows:

 

(1) Routine fingerprinting, photographing or measuring of a suspect.

 

(2) Imprinting of other portions of a suspect’s body (e.g., foot in mud, nose and cheek on window) for purposes of identification.


(3) Examination of the body of a suspect for identifying characteristics.

 

(4) Examination of the body of a suspect, including his private parts, for evidence of disease or crime.

 

(5) Extraction of substance from inside the body of a suspect for purposes of analysis and use in evidence.

 

(6) Removing from or placing on a suspect shoes or head coverings or other clothing.

 

                                                                    ...

 

(7) Requiring a suspect to speak for identification.

 

(8) Requiring a suspect to write for identification.

 

(9) Requiring a suspect to appear in court, stand, assume a stance, walk or make a particular gesture.

 

(10) Requiring a suspect to submit to an examination for sanity.

                                                                    ...

(11) Requiring a suspect to submit to the use of truth serum or the lie detector....

 

All the samples in this appeal fall within two of the first six categories.

 

208  To summarize, the common law as adopted and applied in Canada confined the principle of fundamental justice known as the principle against self-incrimination to testimonial evidence.  For good and principled reasons, it refused to extend it to physical or “real” evidence.  It follows that the principle against self-incrimination which may be read by inference into s. 7  of the Charter  does not apply to real evidence.  The only exception is real evidence derivative from testimonial evidence which would not have been discovered but for the accused’s involuntary testimony.  Otherwise,  real evidence falls to be treated under the search and seizure guarantee of the Charter 

 


209  To hold otherwise would extend the principle against self-incrimination not only beyond its heretofore recognized ambit in Canada, but beyond its limits in comparable justice systems throughout the world.  The United States Constitution, unlike the Charter , contains an express and unqualified guarantee of protection from self-incrimination.  The Fifth Amendment provides, in part, that “[n]o person shall ... be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”.  Yet despite its broad and emphatic wording, American courts have refused to apply the Fifth Amendment to the use of the accused’s body to produce evidence against the accused.  In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court of the United States ruled that the privilege against self-incrimination applies only to testimonial evidence.  It was argued that by taking the accused’s blood and seeking to use it in evidence against him, the state was compelling the accused “to be a witness against himself” (p. 761).  Although acknowledging that the privilege against self-incrimination seeks to protect the values of dignity and integrity of citizens, the majority of the court, per Brennan J., held that “the privilege has never been given the full scope which the values it helps to protect suggest” (p. 762).  Both history and lower court decisions had restricted the privilege to circumstances where the evidence was obtained from the accused’s own mouth (at p. 763):

 

“(T)he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.  The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.” [Holt v. United States] 218 U.S., at 252-253.

 

 

 

The majority went on (at p. 764):

 

 

 


. . . both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.  The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it. [Emphasis added.]

 

 

In the result, the majority was of the view that (at p. 761):

 

. . . the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.

 

 

210  The majority went on to consider the taking of the accused’s blood under the guarantee against unreasonable search and seizure found in the Fourth Amendment.  Here the values of  human dignity and privacy found full expression in the context of searches beyond the body’s surface:  the “human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained” (p. 770).  Reasonable and probable grounds that evidence would be obtained were required, normally attested to by the grant of a search warrant.  However, since in Schmerber the blood was reasonably taken in a situation of emergency, it was admitted in the absence of a warrant as “an appropriate incident to petitioner’s arrest” (p. 771).  At the same time, the majority sounded a caution that more serious intrusions into an individual’s body might not be found reasonable, resulting in rejection of the evidence.  Instead of the all or nothing approach to exclusion required by the principle against self-incrimination, the use of the search power permitted a sensitive case-specific approach to the issue of the use of the accused’s body against him, one calibrated to the seriousness of the invasion.

 


211  Despite emphatic dissents from four justices, Schmerber has stood the test of time.  In the 30 ensuing years it has been affirmed, reaffirmed and applied by the Supreme Court and courts below.  The most eloquent testament to its unquestioned authority is the fact that despite the admissibility of DNA evidence in the U.S. since 1988, a search reveals no case in which its use has been challenged under the Fifth Amendment.  Moreover, discussion in the plethora of scholarly comments on DNA, DNA testing methods, identification by DNA, and legislation authorizing DNA databanks,  proceeds entirely in the context of the Fourth Amendment guarantee against unreasonable search and seizure.

 


212  In Great Britain, the use of the accused’s body to provide evidence against the accused was traditionally governed by the common law, which, as discussed above, refused to extend the principle against self-incrimination to physical evidence, preferring to treat it under the rubric of search and seizure.   More recently, legislation has been adopted:  Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, and the Criminal Justice and Public Order Act 1994 (U.K.), 1994, c. 33.  Both Acts classify bodily samples as either intimate or non-intimate.  Consent of the accused is required for intimate body samples but not for non-intimate samples.  Non-intimate samples  include  saliva, mouth swabs, hair other than pubic hair, samples taken from a nail or from under a nail, a swab taken from any part of a person’s body other than a body orifice, and a footprint or a similar impression of any part of a body other than a part of the hand.  Fingerprints and palm prints may be taken under other legislation.  Dental impressions and swabs from orifices other than the mouth are classified as intimate samples, for which the accused’s consent is required.  Limits, by way of authorization from a superior officer,  are imposed on taking non-intimate samples.  What is important for our discussion here is that the principle against self-incrimination has not been held to confer protection against the taking and use of bodily samples in the United Kingdom.  Indeed, that principle has been narrowed within the domain of testimonial evidence, since the traditional common law right to silence has been severely curtailed by recent legislation: Criminal Justice and Public Order Act 1994, s. 35.  Far from extending the principle against self-incrimination as proposed by the majority in this case, the direction in the United Kingdom is the reverse.  At the same time, significant protection against the improper seizure and use of bodily samples is provided through legislation updating the common law of search and seizure.  This legislation takes the form of a short-hand classification of  what type of searches and seizures are regarded as “reasonable” for the United Kingdom. 

 

213  In Australia, as in Great Britain, there is no written constitutional guarantee against self-incrimination.  Nevertheless, the common law principle that no person can be compelled to incriminate himself or herself is accepted as fundamental.  At the same time, Australian courts have confined the principle to testimonial evidence and refused to apply it to evidence of bodily samples.  In King v. McLellan, [1974] V.R. 773, the Supreme Court of Victoria rejected the argument that compelled provision of a breath sample violates the principle against self-incrimination.  It quoted (at pp. 776-77) the aforementioned passage from Wigmore:

 

“The history of the privilege -- especially the spirit of the struggle by which its establishment came about -- suggests that the privilege is limited to testimonial disclosures.  It was directed at the employment of legal process to extract from the person’s own lips an admission of his guilt which would thus take the place of other evidence. . . . In other words, it is not merely any and every compulsion that is the kernel of the privilege, in  history and in the constitutional definitions, but testimonial compulsion”. . . .

 

 

214  Pointing out that unlike statements, “a fingerprint or some physical feature is already in existence; it exists as a physical fact, and is not susceptible of misrepresentation in any relevant sense”, the court continued (at p. 777):


 

The alcoholic content of the blood of a person is no less a physical fact than a fingerprint.  There would seem to be no valid ground for saying that the furnishing of a blood sample under s. 80d or a breath sample under s. 80f which upon analysis may indicate a particular quantity of alcohol in the suspect’s blood is in any way different in principle from the taking of a fingerprint, for if any alcohol is in the suspect’s blood, it is of a particular concentration whether sampled or not, and the procedures laid down by the Act do no more than bring to light by analysis what is hidden but already in existence.

 

 

215  In Sorby v. Commonwealth of Australia (1983), 152 C.L.R. 281, at p. 292, per Gibbs C.J., the High Court of Australia referred with approval to the conclusion in King v. McLellan that the principle against self-incrimination was confined to testimonial evidence.  In Howard v. Bates (1994), 72 A. Crim. R. 96 (F.C.), it was held unequivocally that bodily samples, whether fingerprints or DNA, do not enjoy the privilege against self-incrimination.  In summary, the rule in Australia appears to be that the protection against self-incrimination is confined to testimonial evidence and does not apply to evidence of bodily samples.

 

216  I conclude that as a matter of principle and accepted jurisprudence, the taking of bodily samples falls to be decided under the guarantee against unreasonable search and seizure found in s. 8  of the Charter .

 

B.  Did the Police Conduct Violate Section 8 of the Charter ?

 

(1)  The Hair Samples, Buccal Swabs and Dental Impressions

 


217  Before the police can conduct a search they must have reasonable and probable grounds to believe that the search will yield evidence material to the commission of a crime.  As a general rule, the police must persuade a judicial officer that they have such grounds and obtain a search warrant before proceeding with the search.  If the police do not obtain a warrant, the search is presumptively unreasonable.  In certain exceptional cases, the absence of a warrant will not in and of itself establish that the search was unreasonable.   In  all cases, however, the search must have been based on reasonable and probable grounds.  The two established exceptions are search incidental to arrest (for the purpose of protecting the public or police or securing evidence) and search in emergency circumstances which preclude the obtaining of a search warrant.  No emergency is alleged in the case at bar.  Nor were the searches necessary to protect the immediate safety of the police or the public.  The only question therefore is  whether the searches were required to secure the evidence.  In my view, they were not.

 

218  A preliminary question in the examination of this point is whether the police were excused from obtaining a warrant because, at the time of the appellant’s arrest,  no warrant procedure existed with respect to the obtaining of hairs, buccal swabs and dental impressions.  The absence of a procedure for obtaining a warrant to search for and seize such items reflects the absence of authority in the common law for such searches.  The common law as it existed in Canada prior to the Charter  had recognized the right of the police to take photographs, fingerprints and require the suspect to participate in a line-up.  But at the time of the  appellant’s arrest, it had not addressed the issue of hair samples and bodily fluids and Parliament had not enacted a specific procedure by which police could obtain a warrant to seize such samples.  While such evidence was sometimes admitted at an accused’s trial on the basis that it was reliable, the common law did not expressly condone the methods by which it was gathered: Kuruma v. The Queen, [1955] A.C. 197 (P.C.); Attorney General for Quebec v. Bégin, supra.

 


219  Therefore, the highest claim that can be made for the police here is that they were  acting by virtue of a purported extension of common law powers to take evidence from a suspect in custody for purposes of  identification.  Yet the intrusive nature of the procedures casts doubt on this claim. Taking hair samples, buccal swabs or dental impressions is far more intrusive than fingerprinting or photographing.  The common law has never permitted such methods of identification.  Having acted outside the apparent authority of the law, it is difficult to contend that the police acted reasonably.

 


220  The common law permitted relatively non-intrusive procedures such as photos,  fingerprinting and police line-ups; see, for example, the Scottish case of Adair v. M’Garry, [1933] S.L.T. 482 (H.C.J.), and similar Canadian cases, including R. v. Buckingham (1943), 86 C.C.C. 76 (B.C.S.C); R. v. Hayward (1957), 118 C.C.C. 365 (N.B.C.A.); R. v. Nowakowski (1977), 40 C.R.N.S. 144 (B.C.S.C.); and R. v. McLarty (No. 2) (1978), 40 C.C.C. (2d) 72 (Ont. Ct. S.P.);  see also Marcoux, supra.   But one searches in vain for common law support for more invasive uses of the suspect’s body.  This distinction is related to the common law concern for the protection of the dignity and privacy of the individual.  Searches and seizures aimed at establishing identity are seen as reasonable incidents of arrest provided they do not trench too seriously on the dignity and privacy of the individual.  These searches may secure evidence but they also serve another important interest -- determining the nexus if any between the suspect and the crime alleged.  When an individual is arrested it is important to ascertain what connection if any he or she really has with the crime.  As is not infrequently the case with fingerprint, line-up and DNA evidence, the suspect may be cleared and the way opened for the police to pursue the real offender.  Provided the incursion on individual privacy and dignity is not too serious, the public interest requires that the police be permitted to conduct preliminary tests involving the accused’s body to confirm or negate his involvement with the alleged crime.  Such conduct is reasonable, and hence does not violate s. 8  of the Charter .

 

221  I conclude that the invasiveness of the searches and seizures leading to taking of the hair samples, buccal swabs and dental impressions, and the seriousness of the incursion on the accused’s privacy and dignity they entailed place them outside the scope of lawful search incidental to arrest.  It follows that they violated s. 8  of the Charter .

 

(2)  The Tissue

 

222  The appellant blew his nose and threw the tissue into the trash can.  Later the police retrieved the tissue and used it for proof of DNA linking the appellant to the crime.

 

223  In my view, the police action in taking the tissue did not violate s. 8  of the Charter .  The tissue was not obtained as a result of a search of the appellant.  Nor was it seized from him; he had discarded it.  To put it another way, the appellant had abandoned any privacy interest in the tissue that he may have had.  The police may find and use a gun thrown away by a killer as evidence against the killer.  In my view, so may they find and use a tissue that he has discarded.  The purpose of s. 8  is to protect the person and property of the individual from unreasonable search and seizure.  This purpose is not engaged in the case of property which the accused has discarded.

 


224  Many cases have held that property abandoned by a suspect does not attract the protection of s. 8  of the Charter .  This Court accepted the concept of abandonment in R. v. Dyment, [1988] 2 S.C.R. 417, referring to R. v. LeBlanc (1981), 64 C.C.C. (2d) 31 (N.B.C.A.), where it was held that the accused had abandoned a sample of his blood left in the front seat of a vehicle.  In R. v. Love, [1994] A.J. No. 847 (Q.B.), aff’d (1995), 102 C.C.C. (3d) 393 (C.A.), Cairns J. held that an undercover officer’s retrieval of a tissue into which the accused had blown his nose from a garbage can “did not amount to a seizure from the accused -- he had discarded the tissue paper -- and the policeman simply retrieved what I would describe as ‘potentially valuable waste’” (para. 102).  Similarly, discarded cigarette butts taken from a police ashtray were held to have been abandoned by the accused and hence not to attract s. 8  protection in R. v. Arp, [1995] B.C.J. No. 882 (S.C.).  See also R. v. Legere (1994), 95 C.C.C. (3d) 139 (N.B.C.A.), and R. v. Titian, B.C.S.C., Victoria Reg. No. 70624, May 26, 1994, unreported.  There appear to be no cases holding otherwise.

 

225  The majority of this Court on this appeal would reject the unanimous view of all other judges who have considered the matter on the ground that “it is somewhat misleading to speak of ‘abandonment’ in the context of evidence obtained from an accused who is in custody” (para. 58).  Cory J. argues that abandonment depends on consent; and is a question of fact for the judge in each case.  He relies on R. v. Mellenthin, [1992] 3 S.C.R. 615, which holds that in order to justify an unlawful search, it is incumbent on the Crown to show that the accused consented to the search.

 

226  With respect, this is to assume the very point in issue.  The issue is whether the taking of the discarded tissue was a search at all.  If it was not, the requirement of consent as per Mellenthin does not apply.  A suspect  need not consent to the police taking what is no longer his.  If the police find a murder weapon the accused has thrown away, they need not ask his consent to take it or use it in evidence.  No more should they be required to obtain his consent to taking and using a tissue he has thrown away.  There simply is no search of the suspect’s person or property. 


 

227  It is argued,  however, that this case is different because the tissue was discarded in the police station while the appellant was in custody.  A suspect in custody, it is submitted, cannot prevent samples, like the tissue here at issue, from being created and taken while he or she is in custody.  Moreover,  police conduct may abet the production of the samples:  questioning may provoke tears and the need for a tissue; the offer of a cigarette may produce a butt coated with saliva.  In short, the suspect is deprived of the choice of whether to give evidence or not.

 

228  This argument is  a self-incrimination argument.   It rests on the premise that the accused has no option but to incriminate himself or herself while in custody, and infers from this that his right not to incriminate himself has been violated.   If the evidence at stake was testimonial, the argument might be pertinent:  Hebert, supra.   But the privilege against self-incrimination does not apply to real evidence, as discussed above.  Unless it  is derivative from testimonial evidence,  real evidence falls to be considered under the rubric of search and seizure.  In short, the argument is misplaced.  It has no application to the tissue.

 

229  All the reasons cited earlier for not applying the principle against self-incrimination to determine whether the seizure of real evidence violates the Charter  apply to the tissue taken by the police in this case.  The information produced is highly reliable.   Its taking represents no violation of the suspect’s privacy of person, much less the heightened invasion of  privacy of the mind.  There has been no overbearing of the will or conscription of the mental processes of the suspect that justifies the heightened stringency associated with testimonial evidence.   Finally, the DNA that the tissue revealed exists independently of any police action.

 


230  While it is true that the samples may necessarily be created as a result of the arrest and detention, the fact remains that the bodily state to which they attest and which gives them their  significance is not created by the detention.  It has a real existence apart from the detention.  The detention merely provides an opportunity to ascertain that bodily state.  Just as a police officer confronted with a drunken suspect in custody may later testify as to his apparent drunkenness, so a police officer who finds a discarded tissue may testify to that.  The body tells its own story.  Had the suspect not been in custody, the story would not have been told the same way, although it might well have been told through other witnesses by other means.  The fact that it was told while the suspect was in custody does not violate any of the suspect’s rights and so render the evidence potentially inadmissible.

 

231  I conclude that the taking of the tissue did not violate the protection against unreasonable search and seizure granted by s. 8  of the Charter .

 

(3)  Summary of Violations

 

232  I conclude that the police violated the appellant’s protection from unlawful search and seizure guaranteed by s. 8  of the Charter  in seizing his body hair, taking the buccal swabs and taking the dental impressions.  They did not violate his rights in taking the discarded tissue, since he had abandoned it.  I turn next to whether the New Brunswick courts erred in admitting the evidence taken in violation of the Charter  under s. 24(2)  of the Charter .

 

II.                Was the Evidence Obtained in Violation of Section 8  of the Charter  Properly Admitted Under Section 24(2) of the Charter ?                                                       

 


A.  The Test for Admission

 

233  The test for the admission of evidence where a Charter  breach is alleged requires the judge to conduct a two-part inquiry.  The first step is to determine whether the evidence was taken in a manner which infringed the accused’s Charter  rights.  If so, the judge must go on to consider whether, as a result of the infringement, the evidence should be excluded under s. 24(2)  of the Charter , which provides that “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”.

 

234  How does the judge determine whether the admission of the evidence would bring the administration of justice into disrepute?  This Court has addressed this question in many cases.  While there is general agreement on the factors to be considered, doubt has arisen as to whether one of them -- potential trial unfairness arising from the fact that the accused has been required to incriminate himself -- is conclusive in the sense that if established, it mandates exclusion of the evidence regardless of any other factors or circumstances.  In order to deal with this issue afresh should it prove necessary to do so, this Court adjourned the first hearing of this appeal and rescheduled a second hearing before a full bench.  We are thus in a position to reassess the jurisprudence under s. 24(2) .  As will become apparent, I adhere essentially to the position adopted in R. v. Collins, [1987] 1 S.C.R. 265.   I depart, however, from some of the more legalistic interpretations which have been placed on Collins and hence on s. 24(2)  of the Charter .  The choice, as I see it, is between a pragmatic evaluation of all the factors touching on whether admission of the evidence will bring the administration of justice into disrepute,  and an automatic exclusionary rule for evidence affecting trial fairness.  In my view, the weight of this Court’s jurisprudence and the wording of s. 24(2)  support a flexible multi-factored approach.


 

235  The discussion that follows begins by looking at s. 24(2)  and the early jurisprudence favouring a flexible, multi-factored approach.  It proceeds to contrast this with later decisions suggesting an automatic exclusionary rule based on the notion of self-incrimination or conscription.  Finally, it asks which approach is most consistent with the philosophy of the Charter  and the furtherance of an effective and fair system of justice. 

 

(1)  The History of Section 24(2)  of the Charter  and the Early Cases --                 The Balancing Approach

 

 

 

236  When constitutional rights are established, the question arises: what will be the consequences of their breach?  One alternative is to hold that evidence obtained as a result of the violation will be inadmissible.  This approach, with some exceptions, has been adopted in the United States.  It is referred to as the “automatic exclusionary rule”.  A second alternative is to hold that the manner of obtaining the evidence should never result in its exclusion, provided it is relevant and otherwise admissible.  The second alternative prevailed in Canada prior to enactment of the Charter Section 24(2)  of the Charter  may be seen as a compromise between the “automatic exclusionary” rule of the United States, and the “no exclusion” rule prevailing in Canada in 1982 prior to the Charter s adoption.

 


237  The first public draft of the Charter  expressly denied exclusion of evidence as a remedy for Charter  breaches: s. 22 (b) (the August 28th Draft).  Various public interest groups made strong submissions against this position.  In compromise, s. 24(2)  was settled upon.  It was seen as striking a balance between the fears of many that an exclusionary clause might unduly benefit accused persons and serious criminals on the one hand, and, on the other, the concerns of civil libertarians that more flagrant Charter  violations should be attended by meaningful consequences, in order better to maintain the integrity of the justice system.

 

238  The language of s. 24(2)  charts a mean course between strict exclusion and no exclusion.  The criterion for exclusion is not breach, as in the case of a strict exclusionary rule, but the repute of the administration of justice.  The repute of the administration of justice embraces both the concerns of those seeking an exclusionary remedy and those against it.  Those favouring an exclusionary remedy typically  point to the need to maintain fair police conduct and court proceedings if the repute of the administration of justice is to be maintained.  Those fearing excessive exclusion, on the other hand,  typically point to the harm done to the repute of the administration of justice by routinely “letting the guilty  off” because of procedural violations.  In making the admission of evidence which has violated rights dependent on the repute of the administration of justice, “having regard to all the circumstances”, the framers of the Charter  adopted a test which requires the judge to consider both these points of view, and decide whether the repute of the administration of justice favours exclusion or admission of the evidence.  The repute of the administration of justice, thus viewed, is not determined by simple reference to the barometer of current public opinion.  Rather it requires the judge to balance the factors weighing for and against exclusion with a view to maintaining the integrity and repute of the justice system.

 


239  It is difficult to escape the conclusion that the framers of s. 24(2)  were seeking to avoid a rule of automatic exclusion.  As Professor Paciocco puts it: “[t]he spirit of the provision, if not [the] very language, calls into question the legitimacy of developing even quasi-automatic principles for exclusion”:  “The Judicial Repeal of s. 24(2)  and the Development of the Canadian Exclusionary Rule” (1989-90), 32  Crim. L.Q. 326, at p. 354.  Quasi-automatic principles of exclusion necessarily preclude a decision made on the basis of all the circumstances of the case, since no rule can embrace all of the various circumstances which may arise in a given case.  In place of a principle of automatic exclusion, s. 24(2)  asks judges to determine on a case-by-case basis whether, in the circumstances before them, admission of the evidence would bring the administration of justice into disrepute. 

 

240  Section 24(2) introduces a balancing process.  The judge must consider how admission of the evidence would impact on the repute of the administration of justice.  Would its use be so unfair to the accused or amount to condonation of police conduct so reprehensible that the respect for justice would be diminished?  The judge must then go on to consider the effect of the exclusion of the evidence on the repute of the administration of justice and weigh this against the disrepute that may inure from the admission of the evidence.  In the end the judge must ask which will better serve the repute of the system of justice on the particular facts of the case -- admission or exclusion?  As one scholar puts it:

 

Before deciding to exclude evidence, a court should weigh any disrepute to the administration of justice that might result from the exclusion itself.  It would not be consistent with the purpose of s. 24(2)  to exclude evidence where the act of exclusion would bring the administration of justice into greater disrepute than would the admission of the evidence.  Thus evidence essential to substantiate a charge, particularly a serious one, should not be excluded where the breach of the Charter  is trivial and the admission of the evidence would not result in an unfair trial.

 

(G. E. Mitchell, “The Supreme Court of Canada on the Exclusion of Evidence in Criminal Cases under Section 24  of the Charter ” (1987-88), 30 Crim. L.Q. 165, at p. 175.)

 

 


241  The early cases and a number of later cases under s. 24(2)  of the Charter  confirmed the multi-factor balancing approach to the section which its drafters envisioned.  The most important early case is Collins, supra.  The analysis of Lamer J. (as he then was) begins with the understanding that s. 24(2)  requires that a court must consider all of the circumstances pertinent to the case at hand.  Lamer J. went on to suggest (at pp. 283-84) some of the circumstances, or factors, which may be relevant in a given case.  Without suggesting the list was exhaustive, he listed 10 factors:

 

-      what kind of evidence was obtained?

 

-      what Charter  right was infringed?

 

 -     was the Charter  violation serious or was it of a merely technical nature?

 

-      was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?

 

-      did it occur in circumstances of urgency or necessity?

 

-      were there other investigatory techniques available?

 

-      would the evidence have been obtained in any event?

 

-      is the offence serious?

 

-      is the evidence essential to substantiate the charge?

 

-      are other remedies available?

 

 


242  Lamer J., having set out these factors, grouped them into three classes according to how they affect the repute of the administration of justice:  factors relevant to the fairness of  the trial; factors relevant to the seriousness of the violation; and factors relevant to the effect of excluding the evidence.  These groupings were taken in some subsequent cases as suggesting a three-part “test”.  In fact, Collins does not suggest that they constitute a test; rather, they were simply a convenient way of considering the various “circumstances” which may need to be considered in a particular case.  The first two groups relate to disrepute to the administration of  justice which may arise from admission, the third group to disrepute which may arise from exclusion of the evidence.  So long as all are considered, the balancing task imposed by s. 24(2)  will be discharged.  Lamer J. reiterated that no one group of factors would be determinative of the issue (at p. 283):

 

In determining whether the admission of evidence would bring the administration of justice into disrepute, the judge is directed by s. 24(2)  to consider “all the circumstances”.

 

 

243  In R. v. Strachan, [1988] 2 S.C.R. 980, Dickson C.J., for the Court,  reaffirmed the balancing task at the heart of s. 24(2) .  After considering the three groups of factors referred to in Collins he stated (at pp. 1008-9):

 

Any denial of a Charter  right is serious, but s. 24(2)  is not an automatic exclusionary rule.  Not every breach of the right to counsel will result in the exclusion of evidence.  In this case where the breach of the right to counsel was inadvertent and where there was no mistreatment of the accused, exclusion of the evidence rather than its admission would tend to bring the administration of justice into disrepute.

 

 

 


Subsequent cases affirmed that the balancing approach is fundamental to s. 24(2) : see, e.g., R. v. Grant, [1993] 3 S.C.R. 223; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wiley, [1993] 3 S.C.R. 263.  Often the issue was resolved by balancing the second group of factors, relating to the seriousness of the breach, against the third group of factors relating to the disrepute to the administration of justice that would result from exclusion: see R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; and Strachan, supra.  Even bodily sample cases emphasized that the seriousness of the breach was balanced against disrepute flowing from excision of the evidence, rather than conscription and trial fairness: see R. v. Pohoretsky, [1987] 1 S.C.R. 945, and Dyment, supra.  The Court has never overruled or expressly qualified these authorities.  In my view, they continue to exemplify the proper approach to s. 24(2) .

 

(2)  The Exclusionary Rule Approach to Section 24(2) 

 

244  It seems clear that the framers of the Charter  did not intend s. 24(2)  to act as an automatic exclusionary or quasi-exclusionary rule.  The cases for the first eight years of Charter  jurisprudence adhered to this vision.  Yet the lure of such a  rule is powerful.  Even the generally accepted view of those who had studied s. 24(2)  and its origins that the section was not to operate as an automatic exclusionary rule proved insufficient to keep the notion of an exclusionary rule at bay indefinitely.  1990 saw the first in a series of decisions which elevated the three classes of factors set out in Collins to the status of a rule and used the first class, factors relevant to the fairness of the trial, as the foundation for a new rule of automatic exclusion -- a rule which finds its full expression in the opinion of the majority on this appeal.   These decisions have never purported to overrule the original approach of a balancing based on “all the circumstances”. Nevertheless, their impact has been powerful.

 


245  The beginnings of this alternative approach to s. 24(2)  may be traced to the concurring judgment of Sopinka J. writing for himself in Hebert, supra.  Sopinka J. opined, in obiter dicta, that if a judge in considering the first group of Collins factors decided that admission of the impugned evidence would render the trial unfair, there was no need to explore the second group having to do with the seriousness of the violation or the third group relating to the adverse effect of exclusion of the evidence.  If the evidence would render the trial unfair, then it could never be received.  It is apparent that this approach is the antithesis of the balancing envisioned by the framers of s. 24(2) .  If one factor or set of factors determines admissibility, there can be no balancing.  Nor can there be consideration of “all the circumstances” as s. 24(2)  requires.  Instead there is simply an exclusionary rule: if the evidence will result in an unfair trial, then it must be excluded. 

 

246  The dictum of Sopinka J. in Hebert was quoted with approval by the majority in R. v. Elshaw, [1991] 3 S.C.R. 24, and approved unanimously in R. v. Broyles, [1991] 3 S.C.R. 595.  However, in each of these cases the Court went on to consider the other two groups of factors.  This seemed, on the whole, consistent with the statement in Collins that “[i]f the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of the other factors, the evidence generally should be excluded” (p. 284 (emphasis in original)).

 

247  A stronger line was taken in  Mellenthin, supra, where Cory J. held that a finding of unfairness was dispositive of the s. 24(2)  analysis: “[i]t is clear that the admission of the evidence would render the trial unfair and there is no need to consider the other factors referred to in Collins” (p. 629).  In Mellenthin, there was minimal, if any, conscription of the accused.  Nevertheless, in words foreshadowing the decision of the majority today, Cory J.  concluded that “the evidence (the marijuana) would not have been discovered without the compelled testimony (the search) of the appellant” (p. 628).  Therefore to admit it, Cory J. reasoned, would have rendered the trial unfair.  This being conclusive on the issue, it was unnecessary to balance the disrepute arising from admission against the disrepute that might flow from excluding the evidence.  In short, it was not necessary to consider “all the circumstances”, notwithstanding the plain words of s. 24(2)  to the contrary.

 


248  In R. v. Burlingham, [1995] 2 S.C.R. 206, at para. 29, Iacobucci J., for the majority,  quoted J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992),  for the proposition that “[o]nce impugned evidence has been found to come within the trial fairness rationale, exclusion is virtually certain to follow”.  At the same time, however, he resisted  the conclusion that trial unfairness makes exclusion automatic.  Again in R. v. Bartle, [1994] 3 S.C.R. 173, at p. 219, Lamer C.J. opined that “[w]here the impugned evidence falls afoul of the “trial fairness” factor, admissibility cannot be saved by resorting to the “seriousness of the violation” factor”.

 

249  L’Heureux-Dubé J. in Burlingham suggested that the majority of the Court had created an automatic exclusionary rule and had ignored the language of s. 24(2)  which requires the court to look at all the circumstances.  Sopinka J. replied that even though the judge need only look at the first factor, trial fairness, where it is engaged, the judge is obliged to conclude that “‘in all the circumstances’ the admission of the evidence would render the trial unfair” (para. 148).  This does not negate the fact, however, that circumstances falling under the second and third classes of factors in Collins remain completely ignored under the analysis.  They are excluded automatically once trial fairness is engaged.

 

(3)  Which Approach Should Be Adopted?

 


250  In my respectful opinion, the view expressed in some cases that any evidence which affects the fairness of the trial must be excluded under s. 24(2)  should be resisted.  First, it runs counter to the spirit and wording of s. 24(2) , which requires that judges in all cases balance all factors which may affect the repute of the administration of justice, and elevates the factor of trial unfairness to a dominant and in many cases conclusive status.  Second, it rests on an expanded and, with respect, erroneous concept of self-incrimination or conscription which equates any non-consensual participation by or use of the accused’s body in evidence gathering with trial unfairness.  Third, it erroneously assumes that anything that affects trial fairness automatically renders the trial so fundamentally unfair that other factors can never outweigh the unfairness, with the result that it becomes unnecessary to consider other factors.  I shall discuss each of these aspects of this new approach in turn.

 

251  The first problem has already been discussed.  Section 24(2)  expressly requires judges to consider “all the circumstances” in determining whether the admission of the evidence would bring the administration of justice into disrepute.  On the new approach, however, one set of factors -- those affecting trial fairness -- receives undue emphasis, to the virtual exclusion of the other factors.  As a result, “trial fairness” approaches the status of an absolute rule of exclusion:  Mellenthin, supra, per Cory J.; Bartle, supra, per Lamer C.J.

 

252  At the same time, the importance of the other factors listed in Collins has declined.  It is evident that if  trial unfairness is dispositive, there is neither need nor room to consider other circumstances.  So instead of considering “all the circumstances” as s. 24(2)  requires, where trial fairness is an issue, the judge following this approach considers only those factors relating to fairness of the trial.  Circumstances relating to the seriousness of the breach  which played such a prominent role in many of the earlier cases become unimportant, and one never gets to the point of considering the effect of exclusion of the evidence on the repute of the administration of justice.  The balancing process that the framers of s. 24(2)  intended is thus completely undermined, and the compromise between those who feared that exclusion of evidence would undercut the administration of justice by freeing guilty persons on technicalities and those who advocated judicial consequences for violations of the Charter  is nullified.


 

253  I turn next to the expanded notion of self-incrimination which underlies the new approach.  The common law and post-Charter  cases up to and beyond Collins drew a sharp distinction between testimonial and real evidence when it came to questions of admissibility.  As has been seen, the principle against self-incrimination applied only to testimonial evidence, that is, to statements given to the police or the court.  This distinction was drawn, as discussed, for principled reasons.  It was maintained in Collins, where Lamer J. wrote: “[r]eal evidence that was obtained in a manner that violated the Charter  will rarely operate unfairly for that reason alone” (p. 284).  More recent cases on the way to the new, automatic exclusion approach, however, have suggested that this distinction may be misplaced.  In Burlingham, Iacobucci J. wrote at para. 30 that “this Court has consistently shied away from the differential treatment of real evidence”.  And in R. v. Colarusso, [1994] 1 S.C.R. 20, at p. 74, La Forest J. opined that “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”.  Following this approach, the majority on this appeal treats the real evidence taken from the accused’s body as if it were testimonial evidence to which the principle against self-incrimination applies.  The common law confessions rule may be taken as holding that admission of involuntary conscripted testimonial evidence is presumptively unfair, justifying an absolute exclusionary rule.  By obliterating the distinction between testimonial and real evidence the new automatic exclusionary approach extends this presumption to all conscripted real evidence.  Any real evidence taken from, or by the use of, the accused’s body without consent is deemed to affect the fairness of the trial.  When this conclusion is combined with the assumption that any evidence that affects trial fairness must be excluded, the result is that any involuntary or “conscripted” evidence involving the use of the accused’s body becomes inadmissible.

 


254  As argued earlier, the seizure of bodily samples stands to be assessed not under the principle against self-incrimination which governs testimonial evidence, but rather under the guarantee against unreasonable search and seizure in s. 8  of the Charter .  This logic extends to the analysis of trial fairness under s. 24(2)  of the Charter . In asking whether the evidence will operate unfairly at trial, the judge will be concerned with the impact that admission of the evidence seized might have on the repute of the system of justice in various ways.  It may be that to admit the evidence will be seen as judicial condonation of improper police conduct, tainting the trial process with earlier police unfairness.  Or the evidence may be unfair in the sense that it is unreliable and may lead to a false verdict.  The fact that the accused has been required to participate in the taking of the evidence will not in itself be unfair, however, since the protection against self-incrimination is confined to testimonial evidence.

 

255  Proceeding to the second group of factors, the seriousness of the violation, the judge may, in the case of a s. 8  breach, wish first to evaluate the degree of invasiveness by reference to the place of the conduct on a spectrum, ranging from minimal bodily intrusions at one end, to bodily intrusions which seriously affect the privacy and dignity of the individual at the other.  The manner in which the search and seizure is conducted may also impact on the seriousness of the violation, as may the good faith or flagrancy attending the breach, any circumstances of urgency or necessity, and whether other investigative techniques were available.

 

256  Under the third group of factors, relating to the effect on the repute of justice of excluding the evidence, the judge may wish to consider the high probative value of real evidence as well as the seriousness of the offence and whether or not the evidence is essential to substantiate the charge.

 


257  I come finally to the assumption underlying the approach that anything that affects trial unfairness automatically renders the trial unfair.  Under the proposed rule of automatic exclusion for unfairness, any evidence which comes “within the trial fairness rationale” or which would have “affected the trial’s fairness”, to use the language of Burlingham, at paras. 29 and 31, suffices to render the trial unfair.  With respect, this confuses two different things: unfair aspects of a trial and a fundamentally unfair trial.  As I wrote in R. v. Terry, [1996] 2 S.C.R. 207, the accused is entitled to a fundamentally fair trial.  That does not mean that it must be perfect.  Even the best-run trials may have aspects of unfairness.  On the other hand, the unfairness may be so great that it leaves doubt as to whether the verdict is safe.  When this occurs, the trial may be said to be fundamentally unfair.  Throughout the fabric of our rules of evidence and trial conduct runs a golden thread: an innocent person must not be convicted.  If a reasonable person viewing the trial proceedings as a whole would conclude that there is a danger that an innocent person may have been convicted, then the trial may be said to be fundamentally unfair.  The ultimate unfairness is to be wrongly convicted on unsafe evidence.

 


258  The approach that I suggest, as opposed to the majority’s approach, preserves the consideration of “all the circumstances” and the balancing of factors for and against admission required by s. 24(2) .  It avoids the automatic exclusionary rule eschewed by the framers of the Charter .  And, in my respectful view, it deals with the problem of trial unfairness in a more flexible and useful way than the automatic exclusionary approach advocated by the majority.  The approach of the majority, as noted earlier, is a blunt instrument incapable of discriminating between degrees of trial unfairness.  Even minor unfairness must necessarily lead to rejection of the evidence.  With respect, that is undesirable.   The complex problem of the admission of evidence violative of Charter  rights  requires a more flexible, nuanced approach.  It requires  an approach which permits the judge to distinguish between different degrees of unfairness and balance them against countervailing considerations.  In this way the judge can truly make the decision which in the particular circumstances of the case will best serve the repute of the system of justice.

 


259  For these reasons, I would reject the approach to s. 24(2)  proposed by the majority on this appeal.  In my view, the Court must consider all the circumstances of the case and in light of them, balance the effect of admitting the evidence on the repute of the administration of justice against the effect of rejecting the evidence.   The circumstances to be considered include those listed by this Court in Collins.  It cannot be said as a matter of law that one factor is more important than others, or that one factor will trump the others and render them superfluous.  In particular, the dual propositions that all conscripted evidence, including real evidence, is unfair because it requires the accused to incriminate himself or herself and that any evidence that affects trial fairness must automatically be excluded, should be rejected.  The principle against self-incrimination does not apply to real evidence, except that which is derivative from compelled testimony, and there are different degrees of trial fairness.  Depending on the degree of unfairness and countervailing circumstances, the fairness of the manner in which the evidence was obtained may or may not result in rejection of the evidence under s. 24(2) .  In an extreme case, where the unfairness casts doubt on the safety of the verdict, it may, as a matter of application of the balancing process, be predicted that the interest in admitting the evidence will never outweigh the harm that would be done by its admission.  Similarly, it may be hazarded as a matter of prediction that, to quote Lamer J. in Collins, “[r]eal evidence ...obtained in a manner that violated the Charter  will rarely operate unfairly for that reason alone” (p. 284). These predictive generalizations, however, do not change the overriding rule that the judge must in each case consider and balance all of the circumstances in determining the admissibility of evidence taken in contravention of Charter  guarantees.

 

260  I add this.  A decision to admit or exclude evidence under s. 24(2)  is essentially a matter of weighing all the relevant circumstances and balancing those favouring admission against those favouring exclusion.  In the end the judge must decide whether, viewed objectively,  admission or exclusion will do more harm to the repute of the administration of justice.  This being the case,  this Court will  be hesitant to interfere with the decision of the courts below, so long as all the factors appear to have been properly considered:  Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. Duguay, [1989] 1 S.C.R. 93.

B.  Did the New Brunswick Courts Err in Holding the Evidence Admissible Under           Section 24(2)?

 

 

261  The trial judge, affirmed by the Court of Appeal, held that the appellant’s hair, buccal swabs and dental impressions taken contrary to s. 8  of the Charter , were admissible under s. 24(2)  of the Charter .

 


262  He first set out the criteria enunciated in Collins.  Applying Collins, he noted that the bodily samples were real evidence which existed independently of the Charter  breach.  He had earlier held that the arrest was lawful, that the “seizures undertaken following arrest” ranged across a spectrum of seriousness, and that at some point on the spectrum a particular type of seizure could become repugnant.  He held that given the lawful arrest, the police searches represented as minor an infringement as possible in the circumstances.  The police, he found, had acted in good faith.  He considered whether the accused would be deprived of a fair trial if the evidence were admitted, and concluded that he would not.  He also considered whether admission of the samples would operate so as to condone unacceptable investigatory conduct and concluded that it would not.  Finally, he asked the ultimate question posed by s. 24(2) : would exclusion of the evidence bring the administration of justice into greater disrepute than admission.  He concluded that the balance fell on the side of admission.

 

263  The majority of the Court of Appeal, per Hoyt C.J.N.B., found that the trial judge had properly considered all the circumstances in arriving at his conclusion under s. 24(2) , and had given due weight to the factors that favoured exclusion of the evidence.  It noted that while the appellant did not consent to providing samples, the police took the samples in a manner which constituted a minimal affront to his dignity.  No force had been used and the appellant made no resistance.  The letter from the appellant’s lawyers requesting that the police take no samples was not determinative since the police could not be expected to curtail a criminal investigation merely because a lawyer so requests.  The majority concluded that the trial judge had made no error in his application of the law and had considered all relevant factors, and that it should not therefore undertake an independent analysis of the factors.

 

264  I agree with these decisions.  The trial judge made a careful review of all relevant factors.  He applied s. 24(2)  in the fashion directed in Collins.  Where the courts below have properly considered all factors relevant to the s. 24(2)  determination, this Court has stated it will not interfere:  Morris, supra.  This, in my view, is precisely such a case.

 


265  This said, it may be useful to indicate how I would see the factors discussed earlier applying to the facts of this case.  Under the first class of factors discussed in Collins, those relating to trial fairness, the concern of judicial condonation of wrongful police behaviour as well as the reliability of the evidence would fall to be explored.  The trial judge expressly addressed these factors and found that admitting the evidence would not prejudice the appellant’s right to a fair trial.  The conduct of the police, while violative of the suspect’s rights was not so egregious as to taint the trial and merit judicial sanction by exclusion.  The evidence was real evidence, existing independently of the police conduct and reliable.

 

266  Under the second group of factors relating to the seriousness of the violation, the seriousness of the affront to the appellant’s privacy and dignity would fall to be considered, as well as whether the police acted in good faith, whether there was a situation of urgency or necessity, whether other investigatory techniques were available and whether the evidence would have been obtained in any event.  With respect to the seriousness of the affront to the appellant’s privacy and dignity, the trial judge found that the police infringement was “as minor as possible” and  “not serious” (paras. 53 and 54).  Similarly, the majority in the Court of Appeal held that the samples were taken in a fashion which constituted a minimal affront to the appellant’s dignity and noted that the appellant did not resist.

 


267  There may be room for debate on the seriousness of the violation of the appellant’s rights.  While the manner of taking may not have affronted the appellant’s dignity more than necessary, requiring a person to take hair from private portions of his body and to submit to the uncomfortable procedure of taking dental impressions is significantly more intrusive and a greater affront to privacy and personal dignity than procedures at the low end of the spectrum, like taking fingerprints or police photos.  This said, the intrusiveness of the invasions must be considered in the context of other factors bearing on the seriousness of the violation.   The trial judge found that the violation was not deliberate, wilful or flagrant, but committed in good faith.  He emphasized that the police were in possession of an autopsy report which revealed seminal fluid and a bite.  Both these preliminary findings required further investigation and having lawfully arrested the appellant, it was reasonable that the police pursue that investigation by obtaining samples from him which might confirm or deny his involvement.  The situation was serious.   A terrible crime had been committed.  In such circumstances, it is generally important to determine whether the police should pursue their investigation against the suspect or look for other suspects.  The possibility that the real killer might still be at large and might commit a second crime may also fall to be considered.  The law as it then stood provided no means to obtain a warrant to obtain the samples.  After consulting with Crown counsel the police decided to go ahead, and proceeded to do so, on the findings below, in the least intrusive way possible.  While the DNA evidence could have been obtained later provided the appellant remained in the jurisdiction, the police  had no assurance that such taking would have been any more lawful than the one they in fact undertook, and in any event, a delayed seizure would not have solved their immediate investigative dilemma.

 

268  Under the third group of Collins factors fall to be considered the seriousness of the offence and whether the evidence was essential to substantiate the charge.  This was a most serious offence and the identification and ultimate conviction of its perpetrator were of high public importance.  The DNA evidence was essential to both.

 


269  In assessing this factor, I add that I am mindful of the argument that those accused of serious offences are as entitled to Charter  protection as those accused of lesser offences.  I am also of the view that the seriousness of offence should seldom if ever serve as the sole basis for admitting evidence obtained through bad faith or a serious violation of the accused’s constitutional rights.  This said, the seriousness of the offence may affect the repute of the system of justice, the ultimate criterion for admission of the evidence under s. 24(2) . As such, as Collins states, it constitutes a factor to be considered.

 

270  Considering all these circumstances together, I cannot conclude that the trial judge and the majority of the Court of Appeal erred in finding that the exclusion of the evidence would do more harm to the repute of the administration of justice than its admission.

 

271  Having found the taking of the tissue not to violate s. 8  of the Charter , it is unnecessary to consider its admissibility under s. 24(2) .

 

III.  Conclusion

 

272  I would dismiss the appeal and affirm the conviction.

 

//Major J.//

 

The following are the reasons delivered by

 

273                           Major J. -- I agree with Cory J.’s reasons excluding the conscripted evidence obtained from hair samples, buccal swabs and dental impressions.  However, with respect, I do not agree that the tissue containing the mucous sample taken from the wastebasket, after being discarded by the appellant, was obtained in violation of s. 8  of the Canadian Charter of Rights and Freedoms .

 


274                           Section 8 operates to protect the reasonable expectation of privacy of the individual.  See Hunter v. Southam Inc., [1984] 2 S.C.R. 145.  In the circumstances of this case, the appellant had no reasonable expectation of privacy with respect to the tissue he discarded.

 

275                           The appellant was escorted to the washroom where he voluntarily and intentionally threw the tissue into the washroom wastebasket in full view of the officer.  By doing so he abandoned the tissue, and lost any expectation of privacy he might have had in regard to it.  Compare R. v. Dyment, [1988] 2 S.C.R. 417, where the accused’s blood was obtained in the hospital by the police without his consent and found to be inadmissible with R. v. LeBlanc (1981), 64 C.C.C. (2d) 31 (N.B.C.A.), where the accused bled on the seat of his car at an accident scene and the evidence was admissible.  In the latter, the accused had less choice as to whether to abandon the blood than the appellant had to abandon the tissue.

 

276                           Cory J. refers to the lack of “informed consent to the search” as found in R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 624.  In my view, consent is not an issue where evidence is abandoned even when the accused is in custody.  Where there is no reasonable expectation of privacy, there is no search, and no requirement of informed consent.

 

277                           Cory J.’s reasons raise a number of interesting but hypothetical examples of circumstances where a Charter  breach may occur.  The question of whether s. 8  will be triggered by the gathering of DNA samples contained in blood, faecal matter or on eating utensils which are “abandoned” by an accused while in custody, is a question of fact to be determined in the particular case.  This is not a case where the accused was left with no choice but to discard the evidence in question.

 


278                           If no violation of the Charter  occurred with regard to the tissue, there is no need to enter into a s. 24(2)  inquiry.  I agree with Cory J. that the crucial question with regard to classification of evidence under s. 24(2)  is whether it is conscriptive or non-conscriptive.  As a result, in my view, the reference to “real” evidence is not necessary.  If an accused, subsequent to an infringement of his or her Charter  rights, participates in the gathering of evidence to be used against him or her, including the gathering of “derivative evidence”, that evidence, if conscripted, may render the trial unfair whether it can be called real or not.

 

279                           Subject to the qualification expressed with respect to the abandoned tissue,  I would dispose of the appeal as proposed by Cory J.

 

Appeal allowed and new trial ordered, L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.

 

Solicitors for the appellant:  Barry & O’Neil, Saint John.

 

Solicitor for the respondent:  The Department of Justice, Fredericton.

 

Solicitor for the intervener the Attorney General of Canada:  George Thomson, Ottawa.

 

Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

 

Solicitor for the intervener the Attorney General of Quebec:  The Department of Justice, Sainte‑Foy.


Solicitor for the intervener the Attorney General of Nova Scotia:  The Department of Justice, Halifax.

 

Solicitor for the intervener the Attorney General of British Columbia:  The Ministry of the Attorney General, Vancouver.

 

Solicitor for the intervener the Attorney General for Saskatchewan:  The Department of Justice, Regina.

 

Solicitor for the intervener the Attorney General for Alberta:  The Department of Justice, Edmonton.


Solicitors for the intervener the Law Union of Ontario:  Sack Goldblatt Mitchell, Toronto.

 

Solicitor for the intervener the Canadian Civil Liberties Association:  Kent Roach, Toronto.

 

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  Fasken Campbell Godfrey, Toronto.

 

Solicitors for the intervener the Association québécoise des avocats et avocates de la défense:  Poupart & Cournoyer, Montreal.

 

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