The accused applied to exclude DNA evidence obtained pursuant to a warrant, arguing his s. 10(b) Charter right to counsel was infringed.
The police executed the warrant at a detention centre and gave the accused only a short time to contact his retained counsel before proceeding to take the sample.
The court found that the police failed to provide a reasonable opportunity to consult counsel, resulting in a s. 10(b) breach.
However, applying the Grant framework under s. 24(2), the court concluded the evidence should not be excluded, as the police acted in good faith, the bodily intrusion was modest, and the reliable DNA evidence was important to adjudicate the serious sexual offence charges on their merits.
The application was dismissed.
