Her Majesty the Queen v. Colson [Indexed as: R. v. Colson]
88 O.R. (3d) 752
Court of Appeal for Ontario,
Simmons, Blair JJ.A. and McKinnon J. (ad hoc)
January 15, 2008
Criminal law -- Search and seizure -- Consent -- Standard of proof required at common law to prove consent to provide DNA sample -- Accused arguing that Crown should be required to prove beyond a reasonable doubt that consent was voluntary -- Trial judge did not err in applying standard of balance of probabilities to Crown's proof of accused's consent to provide DNA sample.
The accused was charged with first degree murder. He was convicted largely on the basis of a DNA match between semen found on the victim and a saliva sample that he had previously given to the police as part of a post-release supervision program for violent offenders. Applying a balance of probabilities test, the trial judge found that the saliva sample was obtained with the accused's voluntary and informed consent. On appeal from his conviction, the accused argued that the trial judge failed to apply the appropriate standard of proof at common law in determining whether a voluntary and informed consent was given. He submitted that the Crown was required to demonstrate beyond a reasonable doubt that there was a proper common law waiver of rights with respect to the giving of the bodily sample, just as it must do under the common law confessions rule, because a body sample and a statement are both conscriptive forms of evidence that, if admitted when illegally obtained, tend to undermine the overarching principles of trial fairness and the right to protection against self-incrimination.
Held, the appeal should be dismissed. [page753]
The common law with respect to the giving of bodily samples has not developed to the point where it parallels the common law confessions rule in terms of the standard of proof. Nor should it. Reliability remains an important element in the evidentiary exclusion/admission exercise, and there are significant differences in that regard between the two types of evidence. The courts have not jettisoned reliability as a part of the rationale for the common law confessions rule. There is no policy reason or justification for extending the common law rule in the fashion sought by the accused. It is not necessary to equate the standards of proof in order to accommodate the process concerns that underlie the modern emphasis on trial fairness. The trial judge applied the correct standard of proof in determining that the accused voluntarily consented to providing a saliva sample to the police. The sample, and the DNA results flowing from it, were properly admitted into evidence.
APPEAL from a conviction for first degree murder entered December 5, 2002 by Archibald J. of the Superior Court of Justice, sitting with a jury.
Cases referred to R. v. Wills (1992), 1992 2780 (ON CA), 7 O.R. (3d) 337, [1992] O.J. No. 294, 9 C.R.R. (2d) 360, 70 C.C.C. (3d) 529, 12 C.R. (4th) 58, 34 M.V.R. (2d) 296 (C.A.), consd Other cases referred to Québec (Attorney General) v. Begin, 1955 54 (SCC), [1955] S.C.R. 593, [1955] S.C.J. No. 37, 112 C.C.C. 209; R. v. Curr, 1972 15 (SCC), [1972] S.C.R. 889, [1972] S.C.J. No. 66, 26 D.L.R. (3d) 603, 7 C.C.C. (2d) 181; R. v. Goldman, 1979 60 (SCC), [1980] 1 S.C.R. 976, [1979] S.C.J. No. 136, 108 D.L.R. (3d) 17, 30 N.R. 453, 51 C.C.C. (2d) 1, 13 C.R. (3d) 228 (sub nom. R. v. Cremascoli and Goldman); R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 128 D.L.R. (4th) 98, 186 N.R. 329, 32 C.R.R. (2d) 273, 101 C.C.C. (3d) 193, 42 C.R. (4th) 269; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66, 163 D.L.R. (4th) 577, 230 N.R. 1, 127 C.C.C. (3d) 449, 18 C.R. (5th) 135 (sub nom. R. v. H. (M.C.)); R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 274 D.L.R. (4th) 385; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 187 N.S.R. (2d) 201, 190 D.L.R. (4th) 257, 259 N.R. 227, 585 A.P.R. 201, 147 C.C.C. (3d) 321, 36 C.R. (5th) 129 (sub nom. R. v. Oickle (R.F.)); R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, [1991] S.C.J. No. 97, 131 N.R. 161, 8 C.R.R. (2d) 173, 68 C.C.C. (3d) 289, 9 C.R. (4th) 324; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, 4 O.R. (3d) 383n, 48 O.A.C. 81, 83 D.L.R. (4th) 193, 128 N.R. 81, 6 C.R.R. (2d) 35, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117; R. v. Singh, [2007] S.C.J. No. 48, 2007 SCC 48, [2008] 1 W.W.R. 191; R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1; R. v. Sweeney (2000), 2000 16878 (ON CA), 50 O.R. (3d) 321, [2000] O.J. No. 3534, 148 C.C.C. (3d) 247, 77 C.R. (2d) 327, 36 C.R. (5th) 198 (C.A.); R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272, [1970] S.C.J. No. 80, [1970] 4 C.C.C. 1, 11 D.L.R. (3d) 673; Rex v. McNamara, 1950 75 (ON CA), [1951] O.R. 6, [1950] O.J. No. 494, 99 C.C.C. 107 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 10, 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 810.2 [as am.]
Paul Calarco, for appellant. Alison Wheeler, for respondent. [page754]
The judgment of the court was delivered by
BLAIR J.A.: --
Introduction
[1] As framed by the appellant, this appeal raises one issue only: what is the standard of proof to be applied in determining whether an accused has "voluntarily" provided a bodily sample for purposes of DNA testing? Is it proof on a balance of probabilities, employing Charter principles, as applied by the trial judge in the circumstances of this case? Or is it proof beyond a reasonable doubt, as required by the common law confessions rule, as the appellant contends it should be?
[2] The appellant was charged with first degree murder. He was convicted largely on the basis of a DNA match between semen found on the victim and a saliva sample that he had previously given to the police as part of a post-release supervision program for violent offenders.
[3] At trial, the defence argued that the earlier saliva sample was obtained without Mr. Colson's voluntary and informed consent. Without objection, Justice Archibald applied a balance of probabilities test to that determination. Since the DNA match was the only evidence the Crown had linking Mr. Colson to the crime scene, the trial judge's conclusion that the provision of the earlier sample was consensual -- and that the DNA results were therefore admissible -- was pivotal to the appellant's conviction. On appeal, the appellant now contends that the trial judge applied the wrong test; he submits that proof of voluntariness beyond a reasonable doubt is required in cases involving the provision of bodily samples, just as it is in the case of confessions, because both confessions and bodily samples constitute conscriptive evidence and accordingly raise the same trial fairness issues.
[4] The appellant rests his appeal on the common law. He does not quarrel with the trial judge's analysis, refusing to exclude the bodily sample evidence under the Charter, or with the application of the balance of probabilities standard of proof in that context.
[5] For the reasons that follow, I would dismiss the appeal.
Facts
[6] Luzmila Contreras, a paralegal, was murdered on July 31, 1999. Her body was discovered in her office premises on Bloor Street near Walmer Road in Toronto. The appellant had worked [page755] with his uncle for a period of time in an adjoining apartment complex on Walmer Road. It was the Crown's theory that the appellant had caused the death of Ms. Contreras while sexually assaulting her. Hence the charge of first degree murder.
[7] The appellant had previously been convicted of sexual assault, forcible confinement and [police] assault. He served a four-year and five-month term of imprisonment at the Special Handling Unit of the Québec Penitentiary north of Montréal and was released on November 3, 1998. His original plan had been to return to his native Newfoundland upon the expiry of his sentence. When he learned that the Royal Newfoundland Constabulary planned to issue a community notification publicizing his name and profile in his hometown, however, he concluded it would be virtually impossible for him to live there and decided to come to Toronto instead. The appellant had relatives living in Toronto. He and his family hoped that he would be able to live with his grandfather or his uncle and that his uncle would be able to provide some employment for him as a handyman.
[8] The Toronto police were interested to learn about the appellant's plans to live in Toronto, however. They contacted him prior to his release from penitentiary and met him at the bus terminal upon his arrival in Toronto on November 3, 1998. He was taken to police headquarters by Detectives Lobsinger and Barsky -- who worked in the police unit supervising high risk offenders upon their release from prison -- and was interviewed, in the presence of his uncle, about entering into a recognizance under s. 810.2 of the Criminal Code, R.S.C. 1985, c. C-46. This provision permits police to apply to an Ontario Court Judge for a recognizance with terms against individuals the police fear on reasonable grounds may commit serious personal injury offences while living in the community. As the trial judge noted, "[t]he 810.2 recognizance mechanism was used for the purpose of attempting to reintegrate high-risk offenders into the community."
[9] Three days later, the appellant appeared before a judge and entered into a s. 810.2 recognizance providing (a) that he attend at the Clarke Institute for counselling, therapy or treatment as directed, and (b) that he enter into a programme of regular polygraph examinations for the purpose of monitoring and managing his sexual behaviour. Duty counsel made submissions on his behalf regarding the validity of the polygraph provision.
[10] The appellant complied with this program over the following months, developing a cordial relationship with Detectives [page756] Lobsinger and Barsky in the process. He was interviewed by the head of the Sexual Behaviour Clinic at the Clarke Institute and he submitted to a polygraph interview (the detective who conducted the interview confided to Detectives Lobsinger and Barsky that he felt the appellant had "failed" the polygraph test).
[11] On January 28, 1999, however, an event occurred that would be critical to the resolution of the subsequent homicide of Ms. Contreras six months later. A tenant in the apartment building at 7 Walmer Road complained that the appellant had sexually assaulted her. Although Detectives Lobsinger and Barsky concluded they did not have reasonable grounds to arrest Mr. Colson in connection with this incident, and no charges were ultimately laid as a result, they interviewed the appellant on videotape nonetheless. During this lengthy interview on January 28, he made statements, and provided the saliva sample, which became the subject of a blended voir dire at the subsequent Contreras murder trial before Archibald J.
[12] There were numerous exchanges between Detective Lobsinger and the appellant during the course of the January 28 interview during which the request for a saliva sample and the reasons for it were discussed. That Mr. Colson was well aware of the reasons for the request and the potential uses for the sample, and -- in the trial judge's view -- that he voluntarily consented to providing the sample, is reflected in the following passage:
Lobsinger: . . . Um, I talked to you about giving me a DNA sample. I told you my whole purpose of the DNA sample is if I have your DNA on file, and there's any sexual assaults in the future, that I believe that could have been committed by you, I'd like to be able to take that, have a scientist look at that and say, no that's not Jason Colson, or, yes, that is Jason Colson. Because it doesn't lie.
Colson: I hear you.
Lobsinger: There's no error there. I told you that. Do you understand that?
Colson: Yes I do.
Lobsinger: What do you think that I want this DNA sample for?
Colson: You want this DNA to log and record what my DNA genetic make up or fingerprint so called fingerprint is so that if any sexual assaults occur in the future from this present time on, that if there is any DNA evidence left at the scene of the crime or on the person, the victim, then if there is, then it can be cross referenced and see whether it is a match or not a match. To eliminate or to implement me, in a crime that has to do. [page757]
Lobsinger: Eliminate or implicate.
Colson: Exactly.
Lobsinger: Do you have any trouble with that?
Colson: No I don't.
Lobsinger: Do you understand that I have no authority whatsoever to make you do that?
Colson: I understand.
Lobsinger: None whatsoever.
Colson: Yeah.
Lobsinger: I have nothing in law that will stand up to allow me to say Jason you do this.
Colson: I understand that. I'm voluntarily submitting the sample for the purposes set out, already mentioned.
Lobsinger: Can you think of any other purpose?
Colson: No, I can't.
[13] The appellant's life was deteriorating by the spring of 1999. He submitted to two further polygraph tests, with similar results. He went from living with his uncle to living with his grandfather, then to living in hostels. He was unemployed and his conduct became more erratic. He was arrested on May 6, 1999 on unrelated matters and was released from custody on July 29.
[14] Ms. Contreras was murdered on July 31, 1999, in her office premises at 360 Bloor Street, a building attached to the building at 7 Walmer Road mentioned above. On November 29, 1999, after samples taken from the body of Ms. Contreras were found to be similar to the DNA sample taken from the saliva provided by the appellant to the police on January 28, the appellant was arrested for first degree murder. In February 2000, the appellant provided a further blood sample pursuant to a Criminal Code DNA warrant executed while he was in custody. This sample resulted in a match as well.
The Trial Judge's Rulings
[15] At trial, the defence argued that Mr. Colson had been detained on January 28, and attacked both the voluntariness of the statements made by the appellant during the interview on that date (on the basis that they were the product of a coerced therapeutic relationship) and the admissibility of the bodily saliva sample provided (on the basis that the sample was acquired without the appellant's consent and obtained [page758] involuntarily in violation of ss. 7, 8 and 10 [of] the Canadian Charter of Rights and Freedoms). There was a blended voir dire to determine these issues. Only the admissibility of the bodily saliva sample, and the DNA test results flowing from it, is raised on this appeal.
[16] In a thorough decision the trial judge ruled that the appellant had not been physically or psychologically detained and -- after examining the evidence relating to 39 examples of alleged Charter breaches advanced by the defence as undermining the admissibility of the utterances and the saliva sample -- that both the utterances and saliva sample were admissible. The trial judge found that the appellant was motivated to agree to the s. 810.2 order and the programme that followed by his own self-interest and by his desire to reintegrate into society, straighten out his life, and not end up in jail again. He concluded (1) that the relationship between the appellant and the police was not based upon oppression, fear or coercion, but rather was "one based upon cordiality and informality"; (2) that the appellant was not detained by the police during the interview on January 28, 1999; (3) that the appellant's rights were not infringed during the course of the interview; (4) that the utterances made by the appellant at that time were voluntary; and (5) that the appellant consented to providing his saliva sample.
[17] The appellant testified on the voir dire. The trial judge rejected his evidence on key points and preferred that of the police and other witnesses in cases of conflict.
[18] With respect to the issue that is the subject matter of this appeal, the trial judge found that Mr. Colson gave an informed, express and voluntary consent to the taking of the saliva sample. He concluded, based on this court's decision in R. v. Wills (1992), 1992 2780 (ON CA), 7 O.R. (3d) 337, [1992] O.J. No. 294, 70 C.C.C. (3d) 529 (C.A.), at pp. 546-47 C.C.C., that the burden was on the Crown to establish these factors on a balance of probabilities. Applying that standard, the trial judge found that the appellant's donation of the saliva sample "was valid, informed, voluntary and express". In particular, he found that the donation:
(a) was made voluntarily in the sense that it was the product of his own consent, given for reasons that he considered sufficient, and not the product of police coercion or oppression or other external conduct negating his freedom of choice; and[page759]
(b) was made knowingly in the sense that Mr. Colson was aware of what he was doing and of the significance of his act and of the use to which the police would be able to make of the consent.
Analysis
[19] This appeal is based upon the common law, not the Charter. Mr. Calarco made that clear.
[20] He submits that the appellant gave the January 28th saliva sample without a proper common law waiver of rights, or, more precisely, that the trial judge failed to apply the appropriate standard of proof in determining whether a proper waiver, in the form of a voluntary and informed consent, had been provided. Without objection from defence counsel (not Mr. Calarco), the trial judge simply applied the Wills test, which expressly adopts a balance of probabilities standard for determining whether an accused has waived his or her Charter rights. Here, however, the issue raised by the appellant is whether, at common law, the test for waiver -- that is, the provision of a voluntary and informed consent to the giving of the bodily sample -- is based on proof beyond a reasonable doubt.
[21] According to Mr. Calarco, the Crown must demonstrate beyond a reasonable doubt that there was a proper common law waiver of rights with respect to the giving of the bodily sample, just as it must do under the common law confessions rule. This is so, he submits, because the giving of a bodily sample should be treated no differently than the giving of a statement at common law. Both are "conscriptive" forms of evidence that, if admitted when illegally obtained, tend to undermine the overarching principles of trial fairness and the right to protection against self-incrimination. Accordingly, the Crown's burden of proving voluntariness and consent in each case should be the same, he contends.
[22] Counsel are not in agreement as to whether this issue was raised at trial. Ms. Wheeler, for the Crown, submits it was not. I am satisfied, upon reviewing the transcripts, that if the issue were raised at trial it was done in only the most tangential fashion. The case was put to the trial judge on the voir dire as in substance a s. 7, s. 8 and s. 10 Charter case. That said, however, I see no prejudice to the Crown in dealing with the argument now put forward on behalf of the appellant, which was fully and capably presented on both sides before us. There is no suggestion that the record would have been developed [page760] differently had the Crown understood the defence to be asserting a criminal standard of proof. Indeed, Ms. Wheeler argues that the record amply supports a finding that the saliva sample was provided voluntarily and on consent even applying that higher standard.
[23] A consent seizure is one that is not only voluntary but also informed. The appellant accepts that where a Charter breach is alleged the standard of proof is the civil balance of probabilities. The law in this respect was set out by Doherty J.A. in R. v. Wills, supra -- a s. 8 case involving the taking of a breath sample for breathalyser purposes -- at pp. 546-47 C.C.C.:
In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, [See Note 1 below] and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and
(vi) the giver of the consent was aware of the potential consequences of giving the consent.
[24] Applying these considerations, the trial judge determined in this case that Mr. Colson's decision to provide the bodily saliva sample on January 28, 1999 was voluntary, informed and knowledgeable.
[25] Mr. Calarco submits that this is not enough, however. He contends -- leaving the Charter aside -- that the appellant's common law rights were infringed by the trial judge's failure to apply a reasonable doubt standard to the assessment of voluntary and informed consent. Put generally, as I understand it, his argument employs the following logic: [page761]
(a) The police were not entitled to take a bodily sample from the appellant at common law without his voluntary and informed consent;
(b) the Charter does not abrogate common law rights and, accordingly, the appellant remains entitled to his rights under the common law where those rights may provide broader guarantees than the Charter does (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 147 C.C.C. (3d) 321, at para. 31);
(c) trial fairness, including the elemental right to protection against self-incrimination -- both principles of fundamental justice -- are now the overarching considerations respecting the exclusion of illegally obtained evidence, both under the Charter and at common law; judges are now required to exclude evidence if its admission would adversely affect the fairness of the trial (R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, 66 C.C.C. (3d) 321, at pp. 390-91 C.C.C.; R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 101 C.C.C. (3d) 193, at paras. 21-24 and 41-49); R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 274 D.L.R. (4th) 385, at para. 3);
(d) in this respect, the old common law principle confirmed in R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272, [1970] S.C.J. No. 80, [1970] 4 C.C.C. 1, to the effect that improperly obtained evidence, if relevant, was generally admissible and that a trial judge had little discretion to exclude such evidence based on trial fairness concerns, has now been overruled;
(e) this "high duty of the judge at common law" (as expressed in (c) above) has now been constitutionalized by the Charter (Harrer, paras. 21-24);
(f) although the Charter does not abrogate common law rights, the latter must be interpreted consistent with Charter principles (R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, [1991] S.C.J. No. 97, 68 C.C.C. (3d) 289, at p. 305 C.C.C.), and one of those important Charter principles is that both statements and bodily samples are "conscriptive" evidence (i.e., evidence that would not exist but for the state co-opting the accused to provide the evidence himself or herself) tending to undermine trial fairness (R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 113 C.C.C. (3d) 321, at pp. 353-57 C.C.C.); [page762]
(g) there is, therefore, no basis in principle for distinguishing between the taking of bodily samples and the taking of a statement, and to the extent that earlier pre-Charter Canadian authority may provide otherwise (based on "reliability" considerations), those authorities have been overtaken (i) by Cory J.'s equation of the two as "conscriptive" in Stillman, and (ii) by the evolution of the common law rationale for the confessions rule from one based upon reliability to one based upon trial fairness;
(h) accordingly, the taking of bodily samples and the giving of a statement are to be treated equally, in terms of the standard of proof, when determining voluntariness and consent -- i.e., the criminal standard required by the common law confessions rule.
[26] I acknowledge a certain analytical attraction to this argument at one level. In the end, however, I would not give effect to it. I say this for several reasons.
[27] First, I do not accept that the common law with respect to the giving of bodily samples has developed to the point where Mr. Calarco seeks to place it, namely, to the point where it parallels the common law confessions rule in terms of the standard of proof. Nor should it, in my view. Why? Because reliability remains an important element in the evidentiary exclusion/admission exercise, and there are significant differences in that regard between the two types of evidence. Nor do I accept, as Mr. Calarco asserts, that the courts have jettisoned reliability as a part of the rationale for the common law confessions rule. Finally, I can see no policy reason or justification for extending the common law rule in the fashion sought by the appellant. It is not necessary to equate the standards of proof in order to accommodate the process concerns that underlie the modern emphasis on trial fairness.
Evolution of the common law confessions rule
[28] Let me deal with the underpinnings of the common law confessions rule first.
[29] Mr. Calarco submits that this rule has evolved to the point where it is no longer concerned with reliability as an underlying rationale, but only with trial fairness and protection against self-incrimination. This contention is important to the development of the appellant's argument because there is a line of Canadian authority -- alluded to above, and to which I will turn shortly -- drawing a clear distinction for purposes of [page763] admissibility between the making of a statement (which raises serious "reliability" concerns when made to a person in authority) and the taking of bodily samples (which gives rise to very few worries about "reliability", particularly in the DNA context). The contention is also important because Mr. Calarco seeks to transport the notions of trial fairness and protection against self-incrimination -- which underlie the Charter analysis equating bodily samples and statements as "conscriptive" evidence -- to the common law context relating to the taking of bodily samples.
[30] It is true that in cases such as R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 57 C.C.C. (3d) 1, R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66, 127 C.C.C. (3d) 449, at paras. 18-24, and R. v. Oickle, supra, the Supreme Court of Canada has developed an enhanced rationale for the common law confessions rule in the Charter era, emphasizing that "the confessions rule also extends to protect a broader conception of voluntariness 'that focuses on the protection of the accused's rights and fairness in the criminal process'": Oickle, at para. 69 (citation omitted). See also, R. v. Sweeney (2000), 2000 16878 (ON CA), 50 O.R. (3d) 321, [2000] O.J. No. 3534 (C.A.).
[31] However, reliability issues remain a principal concern. As Iacobucci J. noted in Oickle, at paras. 32 and 47:
. . . [T]he confessions rule is concerned with voluntariness, broadly defined. One of the predominate reasons for this concern is that involuntary confessions are more likely to be unreliable. The confessions rule should recognize which interrogation techniques commonly produce false confessions . . .
The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable.
(Emphasis added)
[32] This view is reinforced in R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48, [2008] 1 W.W.R. 191, the latest decision of the Supreme Court of Canada dealing with the right to silence and the voluntariness of statements. Writing for the majority, Charron J. said, at paras. 29-30:
Of course, the information obtained from a suspect is only useful in the elucidation of crime if it can be relied upon for its truth -- hence the primary reason for the confessions rule, the concern about the reliability of confessions. The common law confessions rule is largely informed by the problem of false confessions. . . . One of the overriding concerns of the criminal justice system is that the innocent must not be convicted. Because it is recognized that involuntary confessions are more likely to be unreliable, the confessions rule requires proof beyond a reasonable doubt of the voluntariness of any [page764] statement obtained from an accused by a person in authority before it may be admitted in evidence, so to avoid miscarriages of justice.
Of course, not every involuntary confession is false. While the confessions rule's primary concern is with reliability, it is well established that voluntariness is a broader concept. As this Court stated in Oickle (at para. 70): "Wigmore perhaps summed up the point best when he said that voluntariness is 'shorthand for a complex of values': Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, 826, at p. 351." These values include respect for the individual's freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system: see Oickle, at paras. 69-70, citing Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207.
(Italics added)
[33] Justice Fish dissented in Singh. He nonetheless confirmed the continued relevance of reliability issues to the common law confessions rule, stating at para. 76:
Even under its broader formulation in Oickle, the common law rule remains principally concerned with the reliability of confessions and the integrity of the criminal justice system.
[34] Accordingly, while reliability is no longer recognized as the sole rationale underlying the common law confessions rule, it remains one of its essential underpinnings. In my view, this undercuts the appellant's submission that the taking of bodily samples should be treated analogously to confessions at common law. Reliability is not a concern with respect to bodily samples, particularly DNA results taken from a bodily sample of saliva. Indeed, reliability is the hallmark of properly introduced DNA testing. Thus, there remains an important distinction between the admissibility of DNA results taken from a bodily saliva sample and a confession, notwithstanding that both are considered to be conscriptive evidence under s. 24(2) of the Charter.
The common law confessions rule is confined to statements
[35] The common law in Ontario, as adopted in the Supreme Court of Canada, has consistently maintained this distinction. The confessions rule has been confined to statements and has not been extended to the taking of bodily samples: Rex v. McNamara, 1950 75 (ON CA), [1951] O.R. 6, [1950] O.J. No. 494, 99 C.C.C. 107 (C.A.); Québec (Attorney General) v. Begin, 1955 54 (SCC), [1955] S.C.R. 593, [1955] S.C.J. No. 37, 112 C.C.C. 209; R. v. Curr, 1972 15 (SCC), [1972] S.C.R. 889, [1972] S.C.J. No. 66, 7 C.C.C. (2d) 181. In the latter case, Laskin J., commenting on the court's earlier decision in Begin, said, at pp. 197-98 C.C.C.:
Although that was a case [Begin] where the accused consented to a blood test, it was urged unsuccessfully in this Court that the failure to forewarn [page765] him of the likely use of the results of the test precluded the Crown from adducing evidence thereof. This Court concluded that the rules respecting the admissibility of statements by an accused did not come into play upon the taking of a blood sample. The governing judgment, delivered by Fauteux J., as he then was, referred to Wigmore's rationale of those rules, which test admissibility by voluntariness, as based on the exclusion of self-criminating statements that may be false: Wigmore on Evidence, 3rd ed. (1940), vol. 3, p. 250. That rationale had no application to the results of a physical test.
(Emphasis added)
[36] There is thus binding authority at common law -- I remind the reader that the appellant's case is based upon common law principles rather than the Charter -- to the effect that bodily samples and the results of physical tests are not to be treated in the same fashion as statements because the rationale behind the confessions rule only applies to statements.
Policy
[37] Finally, I see no policy reason or justification for extending the standard of proof under the common law confessions rule to the common law treatment of the taking of bodily samples in the Charter era. I say this primarily because of the differing reliability concerns underlying the two approaches and because there is an already well-developed Charter landscape for determining whether improperly obtained evidence should or should not be excluded.
[38] At a more general level, however, I see no justification for creating a new common law right -- infused, the argument goes, by the Charter tool of equating bodily samples and statements as "conscriptive evidence" and by the now Charter- guaranteed fundamental principles of trial fairness and protection against self-incrimination -- that would provide greater protection to an accused than the Charter safeguards he agrees have been properly applied in the circumstances of this case. The appellant would derive greater protection because, under the proposed common law principle, the bodily samples would be automatically excluded from evidence unless the Crown could demonstrate a voluntary and informed waiver or consent beyond a reasonable doubt. Under the Charter, on the other hand, the Wills waiver need only be established by the Crown on a balance of probabilities. In short, the appellant invokes the Charter, and Charter-related values, to push the common law to the desired point, then invokes the common law (devoid of the Charter) to achieve the more advantageous legal result that he seeks. This approach makes no sense, particularly where, as I have noted above, there is no need for it, given the well- developed Charter [page766] jurisprudence respecting trial fairness and its included values in the context of improperly obtained evidence.
[39] Mr. Calarco is quite right in asserting that the common law exclusionary rules have outstripped Wray and have developed to the point where the trial judge has a broad discretion to exclude improperly obtained evidence where its admission would adversely affect and undermine the fairness of an accused's trial, including adversely affecting the right to silence and the right to be protected against self-incrimination: see R. v. Seaboyer, supra, at pp. 390-91 C.C.C.; R. v. Harrer, supra, at paras. 21-24 and 41-49. Moreover, careful scrutiny of the process of gathering evidence is obviously important, and the sanction of exclusion justified, where to admit improperly obtained evidence would bring the administration of justice into disrepute. I also accept that, for purposes of Charter analysis respecting the exclusion of evidence, bodily samples and statements are both treated as "conscriptive". As well, as Justice Iacobucci observed in Oickle, supra, at para. 31, the common law "can offer protections beyond those guaranteed by the Charter", and, as he also said in R. v. Salituro, supra, at p. 305 C.C.C., "where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely".
[40] Here, however, the principles underlying the common law approach to distinguishing between bodily samples and statements -- at least in terms of the standard of proof necessary to determine exclusion or admission -- remain sound. Statements given to persons in authority are notoriously unreliable if their voluntariness, in the sense of their freedom from inducement or threat, is not assured. Different considerations arise with respect to the voluntariness of a waiver or consent to provide bodily samples, however, and with respect to the exclusion of test results emanating from those samples, which are not fraught with the same frailties.
[41] I recognize that the process by which evidence is obtained is an important consideration in preserving the values of trial fairness and protection against self-incrimination. That is at least part of the rationale for equating bodily samples and statements as conscriptive evidence for Charter purposes. Process, however, is a factor to be weighed in the exercise of determining the voluntary and informed nature of the consent or waiver given by an accused when the bodily sample is provided.
[42] Why should a high standard of proof be required to cross the admissibility threshold where there is a high degree of reliability in the evidence tendered? In my view, the Wills test -- [page767] including the balance of probabilities standard -- adequately addresses the underlying core concerns of the criminal law in such circumstances. DNA samples, for example, do not bring with them the unease associated with potential wrongful convictions, whereas false confessions do and the common law confessions rule reflects that danger. Wills also directs trial judges to be alert to issues going to abuse of process and interference with individual autonomy (for example, police oppression, coercion or other external conduct negating freedom of choice). On the other side of the scale, Wills balances the need of the state to investigate and solve crimes, a factor that speaks in favour of the less stringent standard of proof.
[43] This case involves the taking of bodily samples. We are not concerned, therefore, with whether or not an existing common law principle may provide additional protection to the accused "beyond those guaranteed by the Charter". Instead, we are asked to develop a new common law principle -- and to do so using the bricks and mortar of Charter analysis -- and then to provide that new principle to afford protections beyond those afforded by the Charter. On behalf of the Crown, Ms. Wheeler argues there is no need for such a development. I agree. The underlying criminal law policy concerns -- wrongful convictions, abuse of police power and coerced self- incrimination, and respect for human choice and autonomy -- are all adequately preserved and accommodated through the Charter regime. A new common law regime is not required.
[44] I conclude, therefore, that the trial judge applied the correct standard of proof in determining that Mr. Colson voluntarily consented to providing his saliva sample to the police and in refusing to exclude the sample, and the DNA results flowing from it, from evidence. This is so whether the determination is made under the common law or the Charter. The standard is the same, namely, whether the Crown has established, on the balance of probabilities, that the appellant voluntarily consented to the giving of the sample.
[45] I would not give effect to this ground of appeal.
Other issues
[46] In view of these conclusions, the DNA results emanating from the second bodily sample provided pursuant to the Criminal Code DNA warrant were also properly admitted.
[47] Similarly, it is not necessary to deal with the question whether, had he applied the higher standard of proof, the trial judge would or would not have come to the same conclusion about the admissibility of the saliva sample. I observe only [page768] that he appears to have exhibited few doubts in making the findings he made.
Disposition
[48] For all of the foregoing reasons, therefore, I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: R. v. Goldman, 1979 60 (SCC), [1980] 1 S.C.R. 976, [1979] S.C.J. No. 136, 51 C.C.C. (2d) 1.