In the Matter of an Application for a Warrant for the Taking of Bodily Samples
Date: May 20, 2020
Ontario Court of Justice (Toronto Region)
In the Matter of an Application for a Warrant for the Taking of Bodily Samples from A.O. Pursuant to s. 487.05 of the Criminal Code Based on the Information to Obtain of Detective Constable N. R., Sworn May 15, 2020
Endorsement
1. I am satisfied that the statutory preconditions for the issuance of the warrant set out in ss. 487.05(1)(a)-(d) of the Criminal Code have been met.
2. That does not end the matter, however, as I must still determine whether I am satisfied that it is in the best interests of the administration of justice to issue the warrant.
3. This application is brought in the midst of the Covid-19 pandemic ["Covid-19"], which has had a profound impact on society in general and on the operation of courts and detention facilities in particular.
4. Mr. O. is currently detained at the Toronto South Detention Centre.
5. The Information to Obtain does not contain any reference to Covid-19.
6. In the absence of information about Covid-19, I am unable to determine whether it is in the best interests of the administration of justice to issue the warrant. While the taking of a DNA sample in normal times is a fairly routine (albeit very intrusive) matter, these are not normal times. The taking of a sample during Covid-19 might well expose Mr. O., the involved officers, employees of the institution and/or other inmates to unacceptable or unnecessary risk and disruption. The proper administration of justice requires that I understand the impact of the order I am asked to make before I make it. I am also required to consider, pursuant to s. 487.06(2), imposing terms and conditions in the warrant that I consider advisable to ensure that the taking of the sample is reasonable in the circumstances. I am unable to do so based on the evidence in the Information to Obtain.
7. Regarding future applications in this matter (and perhaps similar applications in other cases), the following issues might be addressed (these are not necessarily preconditions to issuance of a warrant):
(a) Can the sample be taken safely?
(b) Do Covid-19 considerations mean that a sample other than a blood sample might be more safely obtained?
(c) Has the officer tasked with taking the sample been given any additional training in relation to Covid-19?
(d) Will there be screening of the officer tasked with taking the sample to make sure he or she does not have any active symptoms prior to entering the institution and has not been in contact with a Covid positive or presumptive individual in the previous 14 days?
(e) What personal protective equipment is available to both the officer taking the sample and to Mr. O.?
(f) Can the video recording of the taking of the sample be achieved without exposing Mr. O. to more than one officer?
(g) Are there any potential collateral consequences for Mr. O. from coming into contact with the officer(s)? For example, will he be required to go into isolation for 14 days after providing the sample?
(h) What is the potential impact on the operations of the detention centre, its employees, and other inmates?
(i) Is there any urgency to proceeding with the request at this time or is it possible to delay the collection of the sample until conditions improve?
(j) Does Covid-19 create any issues for the implementation of Mr. O.'s right to consult with counsel prior to the taking of the sample? Will he be able to access a telephone in private? Counsel have reported significant delays, sometimes for days, in getting access to their clients.
8. The Application is dismissed, without prejudice to a further application being brought that addresses the Covid-19 issue.
9. A copy of this Endorsement shall be placed in the file.
Dated at Toronto, Ontario this 20th day of May, 2020.
D. Moore J.