Ontario Court of Justice

Date: 2015-04-14

Court File No.: Orangeville 2015/

Between:

HER MAJESTY THE QUEEN

Applicant

— AND —

RYAN DEHART

Respondent

Before: Justice Douglas B. Maund

RULING

Ms. L. Marcon ......................................................................................... counsel for the Crown

Mr. A.D. Gold .............................................................. counsel for the defendant Ryan Dehart

Maund, J.:

[1] The Crown seeks a warrant to take bodily substances for forensic DNA analysis from Ryan Dehart pursuant to Section 487.05(1) of the Criminal Code.

[2] Ryan Dehart is charged with break and enter of a dwelling house and also mischief by wilful damage in the Town of Caledon between August 30th and August 31st, 2009. The Crown presented an Information To Obtain (ITO) on March 4th, 2015. On that date the matter had been before the Court since Mr. Dehart's first appearance on September 4, 2014 and was subject to an ongoing judicial pretrial. Counsel for the Respondent requested an opportunity to make submissions on an inter partes hearing which was scheduled for argument before me on March 31st, 2015.

THE FACTS

[3] Ryan Dehart was arrested in July, 2014 on these offences. The ITO summary indicates that a break and enter occurred in a dwelling which had been under construction sometime between 7:00 p.m. on August 30th and 6:00 a.m. on August 31st, 2009. The house was vacant and the homeowner intended to move in with his family during the day on August 31st. On that date it was discovered that persons unknown had entered the house and stolen four new appliances and also made extensive damage to the property.

[4] The building contractor discovered the damage and theft from the property on that morning and immediately notified the Caledon O.P.P. The homeowner was also contacted and attended the scene. During the course of the investigation the forensic officer obtained a swab from a half consumed can of Fruitopia which had been left next to a broken bannister on the upper floor of the residence. A half consumed bottle of water was located on the lower level which was also tested. These swabs were sent to the Centre of Forensic Sciences (CFS) for processing. The O.P.P. were advised by the Centre that a DNA profile had been generated from the swab taken from the can of Fruitopia juice and was uploaded to the National DNA Data Bank on October 7th, 2009. Caledon O.P.P. were subsequently advised on June 26th, 2014 that National DNA Data Bank had matched the DNA profile to a person determined to be Ryan James Dehart.

[5] The investigating officer interviewed the homeowner on January 30th, 2015. As the Respondent notes, this was four and a half years after the date of the offence. The homeowner indicated that he had been at his property until 7:00 p.m. on August 30th, 2009 and was preparing it for his family to move in the next day. There was no damage to the residence and the appliances were still present when he secured the house alarm and left the property. He confirmed that no garbage had been left in the residence either by himself or by the moving company which had delivered items on August 30th, 2009. The property was in readiness for occupancy the following day. There was no indication in the ITO materials that Ryan Dehart was known to have any connection with the property or had worked at the house during construction.

THE ISSUES

[6] Pursuant to Section 487.05(1) of the Criminal Code, a DNA warrant may be issued by a provincial court judge if satisfied there are reasonable grounds to believe:

(a) that a designated offence has been committed,

(b) that a bodily substance has been found or obtained

i. at the place where the offence was committed,

(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

The Court must also be satisfied that it is in the best interests of the administration of justice to issue the DNA Warrant with regard to all relevant matters including the nature of the designated offence and the circumstances of its commission.

[7] There is no issue that the alleged offence is a designated offence within the meaning of the Criminal Code. On their face the materials reveal that a bodily substance was found on an item located at the scene. The Respondent argues that the ITO does not demonstrate any evidence that Mr. Dehart is a party to the offence within the meaning of Section 487.05(1). The Defence also submits that it is not in the best interests of the administration of justice that the Court issue the DNA warrant. And further, that the Court should consider the unexplained delay by the authorities in seeking this DNA warrant since Mr. Dehart was arrested and charged in July, 2014 in denying the warrant.

DISCUSSION

[8] I note at the outset that there is a difference between the positions taken by the Defence and the Crown considering the availability of the DNA profile and the records maintained by the National DNA Data Bank as evidence. The Crown submits that the National DNA Data Bank profile has no admissible evidentiary value in Court but rather can only provide reasonable grounds for arrest and the issue of a DNA warrant. The Respondent argues that the records of the profile collected by the National DNA Data Bank are subject to the usual rules of disclosure established in R v. Stitchcombe and will be essential evidence at trial. The essence of the second argument by Defence is that it would not be in the best interests of the administration of justice to issue this warrant because the Crown already has the original DNA evidence showing a match. The Respondent submits that the Crown can and should use the original profile in the possession of the National DNA Data Bank at trial.

[9] It is not within the proper ambit of this Application to resolve this issue between the Crown and Defence. In my view that is a matter for the trial Judge. I agree with the submission by the Crown that the role for the issuing justice is to determine whether the materials contained in the ITO satisfy the requirements of section 487.05.

[10] Even if I were to agree with the Respondent's position that the National DNA Data Bank profile is available for use at trial, I cannot agree that the fact of the existing DNA match precludes the issuing of a DNA warrant as unnecessary. If the requirements of Section 487.05 are satisfied, the results of a DNA sample taken from a suspect are an investigative tool. The scheme of these sections of the Criminal Code which were introduced in 2000 facilitates comparisons between a fresh DNA sample taken from a suspect with an alleged bodily substance found at the scene of a designated offence. It would defeat the purpose of these sections of the Criminal Code to conclude that the existence of the original DNA match from an unrelated offence held in the National DNA Data Bank should make issuing a DNA warrant for a suspect unnecessary. If this DNA warrant is granted, the CFS expert would be asked to form an opinion based upon a comparison between the crime scene sample and the sample taken from the suspect. Apart from the practical problem of the expert attempting to make a comparison between the National DNA Data Bank match and the crime scene DNA, I agree with the Crown that a comparison by the expert based on the original DNA sample may also lead to a potential issue of discreditable conduct evidence at trial.

[11] I do not agree that it would be contrary to the best interests of the administration of justice to issue the DNA warrant. The alleged offence and the circumstances of its commission in a dwelling house are serious.

[12] The primary argument advanced by the Respondent was that there is no evidence that Mr. Dehart was a party to the alleged offence within the meaning of the section. There is no direct evidence which might link the Respondent to the crime scene. For example there was nothing to indicate that he was, at any time, a member of the construction crew involved in the building of the house. Nor was there any indication that he was known to the homeowner or the builder or had any other connections to the property. At its highest, the evidence supports the proposition that Mr. Dehart was a party to the offence within the meaning of Section 487.05 on the basis that the residence was cleaned by the homeowner and free of garbage when he left the property and secured the alarm at 7:00 p.m. on August 30th, 2009. There is no information disclosed in the ITO concerning how or precisely when the can of Fruitopia which generated the DNA profile was left at the residence. However, on its face, I find that there is a reasonable inference that the can of fruit juice was introduced to the property after it was secured on August 30th by the owner.

[13] The respondent submits that the decision of the Ontario Court of Appeal in R v. Wills, 2014 ONCA 178, which held that DNA evidence alone could not support an inference that the accused was the perpetrator of an offence is relevant to this consideration. I note that the decision in Wills was in relation to whether a reasonable inference is available to a trial court to establish proof of guilt beyond a reasonable doubt. My consideration under Section 487.05 must assess reasonable grounds which is a very different standard than proof beyond a reasonable doubt. As stated by the Ontario Court of Appeal in R v. Debot, the standard of reasonable grounds for belief is rather one of "reasonable probability". Further, there is no requirement in these sections of the Criminal Code that there must also be collateral supporting evidence that the suspect was a party to the offence before a warrant shall issue.

[14] I find that there is some evidence disclosed by the ITO supporting materials which connects Mr. Dehart through his potential DNA on the can left at the scene during the period when the property was secured and the break in occurred. While I appreciate the argument by the Defence that it cannot be established when the DNA of Mr. Dehart, if proven, may have been transferred to the can, that issue is for the trial Judge. There is some evidence which establishes a rational inference based on the information in the ITO.

[15] Finally, I am not persuaded that the circumstances of the delay in the Crown seeking this DNA order is relevant to my consideration. The Defence acknowledges that Section 11(b) of the Charter is not engaged at this stage. While I am troubled by the delay in this Application, it is not part of the statutory criteria to be considered by the issuing judge. Again, this issue may be considered by the trial Judge in the context of the potential Charter issues to be adjudicated.

[16] In the result, the DNA warrant shall be issued as asked.

Released: April 14, 2015.

Justice Douglas B. Maund