A. Tierney

The accused pleaded guilty to pointing a realistic-looking pellet gun at a police officer and threatening death to that officer.

The sentencing judge imposed a conditional discharge with two years probation, finding that while the offences were serious, the accused's mental health issues, substance abuse disorder, youth, lack of criminal record, and significant progress in rehabilitation and employment since arrest warranted a non-custodial sentence.

The court emphasized that the incident represented a failed mental health intervention rather than a purely criminal act.

The accused faced a charge of sexual assault and brought a Charter application to exclude DNA evidence obtained through a warrantless penile swab and to challenge the admissibility of several statements made to police.

The court considered whether the swab constituted a lawful search incident to arrest and whether exigent circumstances justified the warrantless seizure.

While the court held that the search did not breach sections 7 or 8 of the Charter due to exigent circumstances and reasonable grounds, it found a breach of section 10(b) because police failed to ensure the accused had meaningful access to counsel regarding the intrusive procedure.

Applying the Grant framework, the court excluded the derivative DNA evidence.

The court also held that the Crown failed to prove beyond a reasonable doubt that the accused’s statements were voluntary due to intoxication, lack of caution during initial questioning, and uncertainty about whether the accused had an operating mind.