COURT OF APPEAL FOR ONTARIO
DATE: 20000119
DOCKETS: C28451, C28481 and C28516
COURT OF APPEAL FOR ONTARIO
FINLAYSON, AUSTIN and O’CONNOR JJ.A
B E T W E E N :
HER MAJESTY THE QUEEN ) Roslyn J. Levine Q.C.
) Jeffrey Kehoe
(Appellant) ) for the Attorney General of
) Canada
)
) Renee Pomerance
) for the Attorney General of
) Ontario
–and– )
)
S.F. ) David M. Tanovich and
) Louis P. Strezos, for the
(Respondent) ) respondent
)
) Heard: November 29-30, 1999
On appeal from the judgment of Hill J. dated October 9, 1997.
FINLAYSON J.A.:
1This appeal arises out of a constitutional challenge by the
respondent S.F. to sections 487.05 to 487.07 of the Criminal Code
R.S.C. 1985, Chap. C-46 (“Code”) which authorize a provincial
court judge to issue a warrant to obtain bodily substances for
DNA analysis. The challenge ultimately resolved into an
originating application for declaratory relief under s.52 of the
Constitution Act, 1982 that was heard by the Honourable Mr.
Justice Casey Hill of the Ontario Court (General Division). His
judgment is now reported at (1997), 1997 12443 (ON SC), 120 C.C.C. (3d) 260.
2S.F. achieved some success in the court below. The
Attorney General for Ontario appealed those portions of the
section that were struck down by Hill J. and S.F. has responded
to that appeal and cross-appealed the refusal of Hill J. to
strike down the entire regime. The Attorney General for Canada
has intervened in support of the position of the Attorney General
for Ontario. For the sake of simplicity and acknowledging that
the positions of the two Attorneys General are not always
identical, I propose (unless otherwise stated) to refer to both
Attorneys General as the “Crown” or the “appellant” and to S. F.
as the “respondent”.
Procedural history
3On March 21, 1996, a “DNA” warrant was issued to seize a
bodily sample from the respondent pursuant to s.487.05 of the
Code. On March 29, 1996, before any sample was seized, the
respondent made an application for prerogative relief in the
Ontario Court of Justice (General Division) seeking to quash the
DNA warrant on constitutional grounds. On the same date, the
execution of the warrant was stayed by Herold J. On December 16,
1996, the respondent made a motion for certiorari that was
returned before Hill J. The Attorney-General of Canada applied
for and was accorded party status to this motion pursuant to Rule
13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as
amended. In the course of oral argument, the respondent abandoned
the prerogative relief application and filed, on consent, an
originating notice of application seeking a declaration that the
DNA warrant regime enacted in sections 487.04 to 487.09 of the
Code constituted an unreasonable restriction of the rights
embodied in sections 7 and 8 of the Canadian Charter of Rights
and Freedoms (“Charter”).
4On October 7, 1997, Hill J. found that s.487.06(1)(a) which
authorized the seizure of hair for the purposes of forensic DNA
analysis was “per se unreasonable”, incompatible with s.8 of the
Charter and “of no force and effect and is not saved by s.1”
(pp.302-303). He also held that the ex parte nature of the
warrant process is generally justified to avoid the risk of a
suspect fleeing but may be read down to require notice in cases
where the suspect is in custody (pp. 288-89). Hill J. dismissed
the balance of the relief sought by the respondent.
5On November 7, 1998, the Attorney General for Ontario
appealed. It submitted that Hill J. erred in declaring
s.487.06(1)(a) to be of no force and effect and that he further
erred in reading down the provision for an ex parte application
for a warrant. The Attorney General of Canada also appealed the
ruling with respect to s.487.06(1)(a). On November 9, 1998, the
respondent filed a cross-appeal alleging that Hill J. had erred
in not declaring the DNA warrant provisions to be
unconstitutional in their entirety. While this matter comes to
this court as a Crown appeal, the parties have agreed that the
respondent would file his factum and argue first, followed by the
Attorneys General of Canada and Ontario with the respondent
having the right to respond with a reply factum and argument. On
October 19, 1998, this agreement was formalized by a consent
order of Feldman J.A.
6On December 1, 1998, the respondent was acquitted of the
sexual assault charge that gave rise to the issuance of the DNA
warrant. He would therefore appear not to have an interest in the
constitutional challenge. Nevertheless, the respondent in his
factum supports the position taken in the facta of both Attorneys
General that this court has the jurisdiction to hear this appeal
under s.6(1)(b) of the Courts of Justice Act, R.S.O. 1990, Chap.
C.43.
7Notwithstanding this consensus, the court raised the issues
of jurisdiction and mootness and asked the parties to the appeal
to respond. The three parties filed a letter, which was in
effect a joint submission. It stated that the proceeding changed
from one which was criminal in nature to one involving a claim
for declaratory relief that was in form and substance distinct
from the criminal proceedings. All of the parties submitted that
in the result this court has jurisdiction to hear both the
Crown’s appeal of Hill J.’s order striking down s.487.06(1)(a)
and reading down the provision for an ex parte application for a
warrant and jurisdiction to hear the respondent S.F.’s cross-
appeal in respect of Hill J.’s order maintaining the validity of
the balance of the DNA warrant provisions. The parties relied
upon s.6(1)(b) of the Courts of Justice Act and submitted that
this position finds support in Doherty J.A.’s decision in R. v.
Lepage (1997), 1997 2236 (ON CA), 119 C.C.C. (3d) 193 (Ont. C.A.) at p. 202 as
expanded in endnote 4 at p. 237. Lepage was affirmed on other
grounds at (1999), 1999 697 (SCC), 175 D.L.R.(4th) 269 (S.C.C.). It is submitted
that support can also be found in Kourtessis v. M.N.R. (1993), 81
C.C.C. (3d) 286 (SCC), at 325.
8As to the standing of S.F., the parties submitted that S.F.
has standing both as a personal right and on a public interest
basis to respond to the appeal of the Attorneys General and to
advance the issues raised in his cross-appeal. The parties agreed
that the respondent’s standing in this matter is not simply tied
to the process of the offence with which he was charged and which
is now concluded. Based on a personal right, the parties concur
that pursuant to Kourtessis v. M.N.R., the respondent’s standing
is based upon the fact that he was compellable under the
authority granted by the impugned legislation to attend at the
police station for the forcible removal of his blood. If the
respondent is successful in his argument, he will obtain a
declaration that the process to which he could have been
subjected was unlawful. This submission finds support, by
analogy, in Kourtessis, supra, where Sopinka J. held at p. 326:
A taxpayer under investigation, quite apart from his interest
as a possible accused, must have a right at least equal to
that of an interested bystander to attack on constitutional
grounds a law under which his books and records have been seized
and are being retained. The right to do so must surely include an
equal right to take the case to a higher court.
9After considering these submissions with respect to
jurisdiction and standing, the court decided to hear the appeal
in full. After hearing full argument it appears to me that
neither jurisdiction nor standing should be an impediment despite
our concern with respect to the standing of the respondent S.F.
This case involves an important constitutional issue with respect
to recent legislation and if this court does not decide it now,
it will most certainly arise for consideration later. All
parties are here and represented by counsel who are fully
familiar with the appeal and cross-appeal. If S. F. was not
represented, the court would have been obliged to have some other
counsel act as amicus curiae to oppose the positions taken by the
Crown. Almost certainly, the court would have accepted the
counsel who are now appearing for S.F. There appears to be no
rational reason not to proceed with the matter now.
10This case is similar to the situation in Horsefield v.
Ontario (Registrar o f Motor Vehicles (1999), 134 C.C.C. (3d)
161 (Ont. C.A.) at pp. 185-86 where the accused had no personal
stake in pursuing the constitutionality of the statute in
question because the charge against him was withdrawn by the
Crown and yet he continued to be represented in the appeal
process through counsel. I also note that the Supreme Court of
Canada recently heard an appeal involving the estate of a man who
had died shortly after the completion of his hearing by the
British Columbia Council of Human Rights. In British Columbia
(Superintendent of Motor Vehicles) v. British Columbia (Council
of Human Rights), 1999 646 (SCC), [1999] S.C.J. No. 73, Terry Grismer had
complained successfully to the Human Rights Commission that he
had been discriminated against by the Registrar of Motor Vehicles
and refused a driver’s license because of his visual disability.
The Superintendent sought judicial review of the decision of the
Commission and Grismer’s estate was given standing for appeal
purposes notwithstanding that the result could not affect Grismer
personally or his estate, except as to the matter of costs. The
Supreme Court had reviewed and modified its test for
discrimination in an earlier case from British Columbia and felt
that the matter was important enough to be revisited.
Overview of the issues
Issues raised by the respondent as cross-appellant
(a) Did Hill J. err in not finding that
s.487.05 of the Criminal Code constitutes
an unreasonable restriction on the principle
against self-incrimination protected under s.7
of the Charter?
(b) Did Hill J. err in not finding that
the ex parte requirement of s.487.05(1) of
the Criminal Code renders the legislation
unreasonable under s.8 of the Charter?
Issues raised by the appellant
(a) Did Hill J. err in finding that
s.487.06(1)(a) of the Criminal Code which
authorizes the seizure of hair from an
individual for the purposes of forensic DNA
analysis constitutes an unreasonable seizure
under s.8 of the Charter which cannot be
reasonably justified under s.1 of the Charter?
(b) Did Hill J. err in reading down
s.487.05(1) to include an ex parte hearing
unless a hearing on notice is ordered by the
court?
Fresh evidence application
11Hill J. ruled that s.487.06(1)(a), which authorizes the
seizure of hair samples under a DNA warrant, infringes s.8 of the
Charter and cannot be justified as a reasonable limit under s.1
of the Charter. Hill J. based this conclusion on the testimony
of Dr. Barry Gaudette, offered before the Standing Senate
Committee on Legal and Constitutional Affairs, in which Dr.
Gaudette stated:
. . . somewhere between 5 and 10 percent of the population
do not give a root sheath when you forcibly remove or pluck a
hair from their scalp and it is therefore not valuable for DNA
analysis.
12Hill J. ruled that, in light of this evidence, seizure of
hair samples was unreasonable. In the course of his reasons
striking down s.487.06(1)(a) of the Code as unconstitutional, he
stated:
The spectre of 5 to 10% of the population of persons
subjected to seizure of plucked hair samples, not able to provide
the sample subject to seizure, because of a naturally occurring
biological condition, is a significant threat to the
reasonableness of forcible hair seizures. As there is no way of
anticipating whether the suspect will produce a root sheath, this
percentage of suspects would be subjected to unnecessary
seizures. A second warrant would have to be obtained for a
different biological substance to be seized and the suspect
subjected to a successive seizure. Overall, the duration of the
detention of the suspect is unreasonably increased as is the
suspect’s anxiety.
13The position of the Crown, which is now accepted as accurate
by the appellant, is that Dr. Gaudette’s evidence does not
represent the current state of technology. The Crown proffers,
without objection, the testimony of Dr. John Bowen, Acting Chief
Scientist for the R.C.M.P. Biology Discipline at the Central
Forensic Laboratory. Since his evidence is not controversial, I
can state his conclusion without amplification that the present
generation of DNA profiling techniques called Polymerase Chain
Reaction (“PCR”) replaces the technology testified to by Dr.
Gaudette which is called Restriction Fragment Length Polymorphism
(“RFLP”). PCR allows the routine analysis of DNA isolated from
root hairs whether there is a sheath or not. PCR is now the
method of choice by laboratories performing DNA analysis in
Canada, the United States and Great Britain. The fresh evidence
of Pamela Newell, the head of the Biology Section of the Centre
of Forensic Sciences, is to the same effect.
Analysis
14With the acceptance of the fresh evidence, the respondent
has abandoned his support for that part of the order of Hill J.
striking down s.487.06(1)(a) as constituting an unreasonable
search and seizure under s.8 of the Charter. However, he still
maintains his position that s.487.05 constitutes an unreasonable
restriction on the principle against self incrimination protected
under s.7 of the Charter. The operative part of the section reads
as follows:
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.
15In the words of the respondent’s factum, the issue raised is
whether Parliament can compel an individual through legislation
to provide bodily samples to the state or whether such
legislation contravenes the principle against self-incrimination
found within s.7 of the Charter. The respondent’s position is
that s.7 of the Charter prohibits Parliament from creating
legislation in the criminal context, such as s.487.05 of the
Code, which compels an individual to provide a bodily sample
where the predominant purpose of the legislation is to acquire
evidence to incriminate the individual. As a description of the
principle against self incrimination, the respondent cites a
number of authorities which are not controversial, including R.
v. Jones (1994), 1994 85 (SCC), 89 C.C.C. (3d) 353 (S.C.C.), where Lamer C.J.C.
stated at p. 367:
Any state action that coerces an individual to furnish
evidence against him or herself in a proceeding in which the
individual and the state are adversaries violates the principle
against self-incrimination. Coercion, it should be noted, means
the denial of free and informed consent.
16Relying on this principle, the respondent submits that if
the Charter does not prohibit this kind of legislation, then
surely Parliament will be entitled to enact legislation that
compels suspects to provide a statement to the police upon their
detention or arrest.
17I must say at the outset that the position taken by the
respondent is difficult to reconcile with the authorities, none
of which, on my reading, supports the proposition that the
principle against self-incrimination is a free standing
constitutional right under the Charter. It is not a
constitutional right at all; it is one of a number of the
principles of fundamental justice which are qualifiers or
modifiers of those rights which are enshrined in s.7. Section 7
establishes that 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.
The rules of fundamental justice do not prohibit the Crown from
compelling the production of evidence, or even compelling the
suspect to assist in its production; they control the manner in
which this evidence may be obtained. Section 7 of the Charter is
the overriding protection to an accused person in a criminal
proceeding that he will not be deprived of his fundamental
freedoms without due process, that is to say, one that is in
conformity with the rules of fundamental justice. Sections 8
through 14 enumerate specific constitutional restrictions on the
State where it seeks to deprive the individual of his or her
constitutional right to life, liberty and security of the person.
One of them is s.8, which states that everyone has the right to
be secure against unreasonable search and seizure.
18Support for this approach is found in the benchmark decision
of Reference Re Section 94(2) of the Motor Vehicle Act, (1985),
1985 81 (SCC), 23 C.C.C. (3d) 289 (S.C.C.) where Lamer J., for the majority,
stressed that the protected interests in s.7 are life, liberty
and security of the person. He then stated at p.300:
In the framework of a purposive analysis designed to
ascertain the purpose of the s.7 guarantee and “the interests it
was meant to protect” (R. Big M Drug Mart Ltd. [(1985), 18 C.C.C.
(3d) 385 (S.C.C.)]) it is clear to me that the interests which
are meant to be protected by the words “and not to be deprived
thereof except in accordance with the principles of fundamental
justice” of s.7 are the life, liberty and security of the person.
The principles of fundamental justice, on the other hand, are not
a protected interest, but rather a qualifier of the right not to
be deprived of life, liberty and security of the person.
19And at p.301:
Sections 8 to 14, in other words, address specific
deprivations of the “right” of life, liberty and security of the
person in breach of the principles of fundamental justice, and as
such, violations of s.7. They are designed to protect, in a
specific manner and setting, the right to life, liberty and
security of the person set forth in s.7.
20Applying these principles to the collection of evidence in a
criminal context, I am in agreement with the following statement
in R. v. S. (R.J.) (1995), 1995 121 (SCC), 96 C.C.C. (3d) 1 (S.C.C.) per
L’Heureux-Dub‰ (in dissent but not on this point) at p.109:
In summary, when objections are made to the constitutionality
of evidence obtained through breathalyzers, fingerprinting,
searches or compelled production of documents, those
objections are only recognized under the Charter in so far
as they address the manner in which that evidence was obtained.
Objections to the fact that such evidence may be gathered, and to
the fact that the individual was compelled to assist in its
production, are not recognized under the Charter. [emphasis in
original]
21The approach taken by the respondent in challenging the
impugned DNA warrant legislation under s.7 as violative of the
principle of self-incrimination is, I think, misconceived. In
doing so, he has all but abandoned his attack on the legislation
under s.8. For my part, I do not think it necessary to decide
whether or in what circumstances the principles of fundamental
justice constitutionalize a wider or different protection than
the protection afforded by s.8 where the impugned legislation
concerns the gathering of evidence. The determination of the
issue in this case is governed by the following from the
decision of the Supreme Court of Canada in R. v. Mills, [1999]
S.C.J. No. 68, at para.88:
Given that s.8 protects a person’s privacy by prohibiting
unreasonable searches or seizures, and given that s.8 addresses a
particular application of the principles of fundamental justice,
we can infer that a reasonable search or seizure is consistent
with the principles of fundamental justice.
22In my opinion, an analysis of this DNA warrant legislation
under s.8 is determinative of its constitutionality. If the
legislation passes s.8 scrutiny, it is a valid means of gathering
evidence. As such, it can hardly be said to be contrary to the
principles of fundamental justice under s.7. Accordingly, our
analysis of whether the legislation relating to DNA warrants is
constitutional, begins and ends with s.8. This takes us to Hunter
v. Southam (1984), 1984 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.).
23Since the respondent was acquitted in this case and no issue
arises as to the manner in which his DNA sample was to be
obtained, it is useful at the outset to quote from the judgment
of the Court delivered by Dickson J. at p.104:
At the outset it is important to note that the issue in
this appeal concerns the constitutional validity of a statute
authorizing a search and seizure. It does not concern the
reasonableness or otherwise of the manner in which the appellants
carried out their statutory authority. It is not the conduct of
the appellants, but rather the legislation under which they
acted, to which attention must be directed.
24In dealing with the phrase “unreasonable search and
seizure”, Dickson J. points out that the purpose of the Charter
is to protect, within reason, the enjoyment of the rights and
freedoms it enshrines. It does not authorize government action
but acts as a constraint against government actions that are
inconsistent with those rights and freedoms. He said at p.106:
It [the Charter] does not in itself confer any powers, even
of “reasonable” search and seizure, on these governments. This
leads, in my view, to the further conclusion that the assessment
of the constitutionality of a search and seizure, or of a statute
authorizing a search and seizure, must focus on its “reasonable”
or “unreasonable” impact on the subject of the search or the
seizure, and not simply on its rationality in furthering some
valid government objective.
25Dickson J. goes on to say that a requirement of prior
athorization, usually in the form of a valid warrant, has been a
consistent prerequisite for a valid search and seizure at common
law and under most statutes. Such a requirement puts the onus on
the State to demonstrate the superiority of its interests to that
of the individual (p.109). As he pointed out earlier, (p.108) a
reasonable search and seizure must accommodate both the “public’s
interest in being left alone by government . . [and] . . the
government’s interest in intruding on the individual’s privacy in
order to advance its goals, notably those of law enforcement”.
The only issue in this case is whether the impugned legislation
properly reconciles those interests. There may be circumstances
where the subsequent use of lawfully obtained evidence may
nevertheless violates s.7 of the Charter, (see R. v. White (1999)
1999 689 (SCC), 135 C.C.C. (3d) 257 at p.285) but that issue does not arise in
this case which is concerned solely with the means by which the
evidence is gathered.
26Taking my lead from these observations, it seems to me that
the most fruitful source of analysis to determine if Parliament
has satisfied this onus would be the legislation itself. The
legislative scheme of ss.487.04 through 487.07 requires a proper
showing of objectively reasonable grounds. An independent
judicial arbiter must conclude, after balancing the competing
interests and exercising his or her discretion, that the warrant
is in the best interests of the administration of justice. The
suspect has the benefit of all of the traditional safeguards
inherent in the prior judicial authorization model. In addition
to these traditional safeguards, the DNA warrant scheme offers
several additional protections:
a) The jurisdiction to issue a DNA warrant is reserved for
provincial court judges, and may not be exercised by
justices of the peace (s.487.05(1)).
b) DNA warrants are only available to further the
investigation of the specific offences enumerated in
s.487.04.
c) Section 487.05 imposes highly specialized reasonable
grounds requirements, which are carefully designed to
address the unique issues arising in this context.
d) The issuing judge is expressly required to advert to
certain relevant factors, including the qualifications of
the person who is to collect the bodily substance
(s.487.05(2)).
e) The issuing judge must be satisfied that the warrant is
in the best interests of the administration of justice
(s.487.05(1)).
f) Section 487.06(2) requires the issuing judge to impose
any terms and conditions which are necessary to ensure that
the seizure of a bodily substance authorized by the warrant
will be reasonable in the circumstances. A number of such
conditions were imposed in the case in appeal.
g) Pursuant to s.487.06, a warrant under s.487.05 may only
authorize certain designated procedures.
h) Section 487.07 imposes a number of explicit requirements
governing execution of the DNA warrant. Section 487.07(3)
imposes an overarching requirement that the executing
officer ensure that the privacy of the suspect is respected
in a manner that is reasonable in the circumstances.
i) Sections 487.08 and 487.09 create a comprehensive and
rigorous scheme governing disposition of bodily substances
and results obtained under a DNA warrant. These provisions
not only maximize the protection of privacy in biological
and genetic material; they also place clear limits on the
extent to which evidence obtained under DNA warrant can be
used to incriminate the suspect.
27I agree with the Crown that these authorized procedures
foster a valid government objective in enforcing the criminal
law. So far as the suspect is concerned, they are minimally
intrusive, and result in only a de minimis interference with the
body. In Hill J.’s reasons, he properly charged himself that a
determination as to reasonableness under s.8 required a balancing
of the individual interests of bodily integrity, dignity and
privacy against the societal interests in effective law
enforcement and the furtherance of truth-seeking in the criminal
process (p.280). I support the specific findings of Hill J.
where he said at p.291:
On the evidence, the seizure procedures
are of short duration and involve no or minimal
discomfort. There [are] neither inhumane nor
abusive tactics. The legislation does not
authorize state conduct which is brutal, humiliating
or psychologically offensive. The seizure methodology
leaves no lasting impression and does not risk the
health of the subject. In short, there is minimal
intrusion with no unacceptable affront to human dignity.
The authorized seizures do not risk
incidental breaches of privacy or confidence.
The authorized procedures are carefully
tailored to the acquisition of the minimum
material necessary to fulfil the objective of
DNA forensic analysis.
28In his conclusions respecting the application of s.8, Hill
J. is critical of the authority of the State to seize hair, but
as to the overall DNA regime, he concludes at p. 301:
The important government justifications
of fostering effective crime control, protecting the
innocent, enforcing society’s criminal laws, and
substantially improving the search for truth in the
criminal trial process warrant the court-authorized
intrusion upon bodily integrity. . . . the DNA
warrant legislation is a rational and proportionate
response designed to meet these objectives and does
not result in any over-reaching or unfair impact
upon the individual subject to a DNA warrant seizure.
29I adopt this conclusion as edited. Hill J. then goes on to a
s.7 analysis which in my respectful view adds nothing to his s.8
analysis. His rationale appears to be that he is obliged to
respond to the respondent’s argument that the State must justify
the use of DNA warrants under s.7 as well as s.8 because of the
principle against self-incrimination. I think I have dealt with
that concern sufficiently. In fairness to Hill J., he seems to
recognize that this second analysis is more or less a duplication
of his earlier analysis under s.8. He says at p.310:
The important societal objectives and benefits of this
legislation have already been canvassed in the court’s s.8
Charter analysis. The contextual balancing of individual and
community interests regarding reasonable search and seizure
serves to inform the balancing exercise respecting the principle
against self-incrimination. The societal advantages derived from
the availability of a DNA warrant to forcibly seize bodily
substances in the investigation of serious criminality,
facilitating highly reliable forensic testing as to identity,
outweigh the limitation upon the self-incrimination principle.
30I also recognise that there are pressing, substantial, and
highly compelling societal interests which DNA warrants serve.
However, the case for the constitutional justification of this
legislation has been made under s.8.
31Having reached this conclusion based on s.8, I must make a
few comments about the respondent’s self-incrimination argument.
As I indicated above, the principal focus of the respondent’s
argument was directed to establishing that the principle against
self-incrimination was a constitutional right protected under
s.7. This is not the case. The principle that no person can be
conscripted to provide evidence against him or herself pervades
the entire Charter. It is to be found in s.7 to the extent that
it is a principle of fundamental justice. It appears also in
s.10(b), the right to retain and instruct counsel; in s.11(c),
the right not to be compelled to be a witness against his or her
person; in s.13, the right not to have incriminating evidence
given as a witness at one proceeding used against him or her in
other proceedings; and in s.24(2), the exclusion of evidence
obtained in a manner which contravenes rights and freedoms
guaranteed by the Charter. See Lamer C.J.C. in R. v. Jones,
supra, at pp.365-67.
32Moreover, wherever the principle is found, it does not serve
to exclude absolutely all information that the State has obtained
against the person. I rely upon the analysis of Iacobucci J.
with specific reference to the principle against self-
incrimination as it appears in s.7 in the recent decision of the
Supreme Court of Canada in R. v. White, supra. Speaking for the
majority, Iacobucci J. stated at pp.275-276:
That the principle against self-incrimination
does have the status as an overarching principle
does not imply that the principle provides
absolute protection for an accused against all
uses of information that has been compelled by
statute or otherwise. The residual protections
provided by the principle against self-incrimination
as contained in s.7 are specific, and contextually
sensitive. . . .
The contextual analysis that is mandated
under s.7 of the Charter is defined and
guided by the requirement that a court
determine whether a deprivation of life,
liberty, or security of the person has
occurred in accordance with the principles of
fundamental justice. As this Court has
stated, the s.7 analysis involves a balance.
Each principle of fundamental justice must be
interpreted in light of those other
individual and societal interests that are of
sufficient importance that they may
appropriately be characterized as principles
of fundamental justice in Canadian society.
33Dealing specifically with the principle against self-
incrimination in the context of a search and seizure of bodily
substances, the Supreme Court of Canada in R. v. Stillman,
(1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.), has held that a compelled
use of the body or bodily substance or the compelled provision of
bodily substances in breach of a Charter right will be treated as
a compelled or conscripted self-incriminating statement. In
Stillman, the Supreme Court was concerned with the taking by the
police, without statutory authority or consent and as an incident
of arrest, of hair samples and buccal swabs to be used for DNA
analysis and teeth impressions to compare to bite marks on the
body of the deceased. Cory J., speaking for the majority, held
that this conduct amounted to an unreasonable search and seizure,
pointing out in particular that since the search and seizure of
bodily substances was not authorized by either statutory or
common law, it could not have been reasonable. Cory J. then
embarked upon an analysis of the application of s.24(2) of the
Charter. It was at this stage of his analysis that he drew the
distinction between conscriptive and non-conscriptive evidence,
holding that evidence is conscriptive where an accused “in
violation of his Charter rights” (p.350) 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
substances. The significance of this classification is that
conscripted evidence of this nature will rarely be admitted under
s.24(2) of the Charter. In the words of Cory J. at p. 356:
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.
34In his s.7 argument, the respondent attempts to use Stillman
to equate the use of bodily substances with testimonial
compulsion, but this ignores the fact that the s.7 discussion in
Stillman was grounded in the specific context of a bodily search
without statutory authorization. The respondent’s focus on the
use of bodily substances as a conscripted source of self-
incrimination comparable to testimonial compulsion finds little
support in the case law. See for example R. v. S.(R.J.), supra,
where Iacobucci J. stated at p.84:
. . . [A]ll that I have said in these reasons is directed at
testimonial compulsion and should not be taken as putting in
jeopardy schemes relating to other forms of compulsion such as
breathalyzers, fingerprinting, blood sampling and other similar
schemes. Those arrangements are not before us and, in my view,
raise other issues that are different from those involved in
testimonial compulsion, which I need not address.
35The court in Stillman expressly recognized that, at the time
of the arrest of the accused, the Code did not authorize the
search of a person, nor the seizure of parts of the body.
Indeed, this was a crucial factor in Cory J.’s conclusion that
the bodily intrusions violated s.7 in a manner that resulted in
self-incrimination and would lead to trial unfairness. The
searches in Stillman could only be justified by demonstrating
that they were authorized by a common law power or that the
accused had no expectation of privacy in the things seized.
However, it does not follow that there is no fair or
constitutional way in which to collect bodily substances. To the
contrary, in Stillman, Cory J. specifically contemplated, in
obiter dicta, that the present DNA warrant legislation does meet
all constitutional requirements. He said at p.357:
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 a
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 on 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. [Emphasis added.]
36I conclude, therefore, that the respondent’s arguments as to
self-incrimination should be rejected.
37As noted above, the reasons of Hill J. in his s.8 analysis
are very complete and in the main I agree with them.
Regrettably, however, in two instances he oversteps the bounds of
constitutional scrutiny and embarks upon an editing function that
amounts to an impermissible intervention in the legislative
jurisdiction of Parliament. First of all, he finds that
s.487.06(1)(a), which authorizes the plucking of scalp hair even
though it will obtain no usable DNA evidence for approximately 5-
10% of the population, is violative of s.8 as an unnecessary
invasion of bodily integrity. Even without the fresh evidence
which has overtaken Hill J.’s statistical concern, it is my
respectful view that whether a sample is 80, 90 or 100 per cent
effective for sampling purposes does not raise a concern as to
the reasonableness of the authorizing statute. If the taking of a
hair sample from a suspect under judicial warrant is not overly
intrusive for the vast majority of the population, it can hardly
be overly intrusive for the limited minority. The nature of the
seizure is the same in both cases. The fact that the execution
of the warrant may not, in a few cases, result in the seizure of
a usable sample, does not raise a constitutional issue.
Parliament had available to it the testimony of Dr. Gaudette. It
was satisfied that the taking of hair samples was a proper
investigative tool, despite its limitations, and I do not think
that it is the court’s function to substitute a different
standard.
38In the second place, a constitutional overview of the
warrant process did not justify the following comment at pp.288-
289:
Despite the statute’s apparent call for an ex parte hearing,
it may be reasonable, depending on the facts of the particular
case, for a hearing, on notice, to be conducted . . . . In my
view, this element of the statute may, as required, be properly
read down to include an ex parte hearing unless a hearing on
notice is ordered by the court.
39This quotation is preceded by the observation that an ex
parte application is generally justified to avoid the risk of the
suspect fleeing but that notice might be in order where the
suspect is already in custody. Once again, this concern does not
raise a constitutional issue as to the competence of the
legislative scheme. Both in this court and below, the Crown has
stressed the requirement in the DNA regime for authorization by a
provincial court judge. This judge is the repository of a
discretion as to whether to issue the warrant or not and if he or
she is advised, as is proper on an ex parte application, that the
suspect is in custody, the judge may well require that the
suspect be served. The respondent seemed to think that because
the legislation authorized an ex parte application, that this is
the only way it could be granted. Clearly, the procedure is
permissive.
40It is important to remember that applications for search
warrants and other judicial warrants traditionally have been
heard ex parte to avoid not only the flight of the suspect but
also the destruction of what is sought under the warrant. Even
accepting that the destruction or alteration of DNA evidence is
not a possibility and that there may be cases where notice might
be ordered by the issuing judge, these are not reasons for the
court on a constitutional review to start rewriting customary
procedures. One must keep in mind that these DNA warrants are an
investigative tool. If their use is to be overly restricted by
procedural impediments and interlocutory proceedings, the
investigation may be frustrated. As Hill J. acknowledges, one of
the important justifications for the legislation is that it can
serve to protect the innocent. If the police are focussing on
the wrong suspect, it is in everyone’s interest that he or she is
cleared and the search for the true perpetrator continue without
delay. These are all considerations properly left to the issuing
judge.
41Accordingly, there is nothing constitutionally wrong with
the legislation as drafted. For the reasons given, I would
dismiss the respondent’s cross-appeal and allow the appellants
appeal to reinstate the provisions of the Code authorizing the
plucking of hair samples (s.487.06 (1)) and deleting the
reference to reading down in respect of the authorized ex parte
application in s.487.05(1). In the result, the respondent’s
application for declaratory relief would be dismissed.
Released: January 19, 2000
Signed: “G.D. Finlayson J.A.”
GDF “I agree Austin J.A.”
“I agree D. O’Connor J.A.”
