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.:

[1] This 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.

[2] S.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

[3] On 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”).

[4] On 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.

[5] On 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.

[6] On 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.

[7] Notwithstanding 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.

[8] As 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.

[9] After 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.

[10] This 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

[11] Hill 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.

[12] Hill 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.

[13] The 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

[14] With 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.

[15] In 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.

[16] Relying 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.

[17] I 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.

[18] Support 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.

[19] And 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.

[20] Applying 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]

[21] The 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.

[22] In 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.).

[23] Since 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.

[24] In 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.

[25] Dickson 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.

[26] Taking 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.

[27] I 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.

[28] In 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.

[29] I 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.

[30] I 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.

[31] Having 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.

[32] Moreover, 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.

[33] Dealing 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.

[34] In 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.

[35] The 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.]

[36] I conclude, therefore, that the respondent’s arguments as to

self-incrimination should be rejected.

[37] As 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.

[38] In 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.

[39] This 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.

[40] It 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.

[41] Accordingly, 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.”