R. v. Borden, [1994] 3 S.C.R. 145
Her Majesty The Queen Appellant
v.
Josh Randall Borden Respondent
and
The Attorney General of Canada Intervener
Indexed as: R. v. Borden
1994: June 16; 1994: September 30.
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for nova scotia
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search or seizure ‑‑ Right to be informed of reason for arrest and to be informed of right to counsel ‑‑ Arrest made for sexual assault ‑‑ Identity of assailant in earlier sexual assault unknown ‑‑ Detainee advised of right to counsel on arrest before making statement with respect to second assault and before giving written statement ‑‑ Police requesting hair and blood samples primarily for comparative DNA testing in order to determine identity of first assailant ‑‑ Detainee not told of investigation into first assault or informed of his right to counsel in that regard ‑‑ Whether or not unreasonable search and seizure contrary to s. 8 of the Charter ‑‑ Whether or not s. 10 right to be informed of reason for detention and of right to counsel violated with respect to investigation of first assault ‑‑ Whether or not evidence of analysis results would bring administration of justice into disrepute and therefore should be excluded under s. 24(2) ‑‑ Canadian Charter of Rights and Freedoms, ss. 8, 10(a), (b), 24(2).
Criminal law ‑‑ Investigations ‑‑ Arrest made for sexual assault ‑‑ Identity of assailant in earlier sexual assault unknown ‑‑ Detainee advised of right to counsel on arrest, before making statement with respect to second assault and before giving written statement ‑‑ Police requesting hair and blood samples primarily for comparative DNA testing in order to determine identity of first assailant ‑‑ Detainee not told of investigation into first assault or informed of his right to counsel in that regard ‑‑ Whether or not unreasonable search and seizure contrary to s. 8 of the Charter ‑‑ Whether or not s. 10 right to be informed of reason for detention and of right to counsel violated with respect to investigation of first assault ‑‑ Whether or not evidence of analysis results would bring administration of justice into disrepute and therefore should be excluded under s. 24(2) ‑‑ Canadian Charter of Rights and Freedoms, ss. 8, 10(a), (b), 24(2).
Two sexual assaults occurred within a few months of each other: one where the assailant (unidentified but suspected to be the accused) left a semen stain on a comforter and the other where the appellant was identified as the assailant from a police line up. Two hairs were seized during the second investigation.
The accused, after being arrested for the second sexual assault, twice declined to contact a lawyer when advised by the police of his right to do so. He was again advised late the next morning of his right to counsel, of his right to silence and of his being a suspect in the second assault. The accused made an oral exculpatory statement and agreed to commit it to writing. After again receiving the standard warning and in spite of his counsel's advice to give only his name, the accused agreed to reduce his earlier oral statement to writing. Later in the afternoon, the accused complied with a police request to provide, first samples of scalp and pubic hair, and then a blood sample. The police hoped to establish that the accused was the assailant in the first assault by comparing the results of DNA typing of the blood and semen samples. The written consent drafted by the police deliberately used the plural when it stated that the sample was "for the purposes relating to their investigations". The accused was given no indication, other than the use of the plural "investigations" that the blood was also being sought for possible use in the investigation of the first assault.
The accused was charged with sexual assault in the first assault. The trial judge, notwithstanding a finding of a "technical" infringement of the s. 8 Charter right to be secure from unreasonable search and seizure admitted the evidence of the DNA testing under s. 24(2) as it would not bring the administration of justice into disrepute. He declined to find an infringement of s. 10(a) (the right to be promptly informed of reasons for arrest or detention), and s. 10(b) (the right to retain and instruct counsel without delay on arrest or detention). The Nova Scotia Court of Appeal allowed the appeal and set aside the conviction.
At issue here was: (1) whether the accused established an infringement of his Charter rights under ss. 8, 10(a) and (b), and, (2) if so, whether the evidence obtained as a result of the infringement should be excluded pursuant to s. 24(2) of the Charter.
Held: The appeal should be dismissed.
Per La Forest, Sopinka, Gonthier, Iacobucci and Major JJ.: The relevant time for assessing whether there was a seizure here was when the sample was first taken. The accused had an expectation of privacy with respect to his bodily integrity and the informational content of his blood. The proper test for determining whether a person has consented to the taking of an item by the state is not that of mere voluntariness, which is akin to the standard applied when the admissibility of a confession is in issue, but rather whether the person has sufficient information to truly relinquish the right to be secure from unreasonable seizure. As a general rule a lawful search of the person does not have to be suspended pending exercise of the detainee's right to counsel but an exception exists where the search requires the detainee's consent. A consent to the taking of blood can be limited to a taking for certain purposes only. A link therefore exists between the scope of a valid consent and the scope of the accused's knowledge in relation to the consequences of that consent.
The degree of awareness on the part of the accused of the consequences of waiving of the right to be secure from unreasonable seizure depends on the particular facts. While the accused need not have a detailed comprehension of every possible outcome of giving consent, he or she should understand that the police are also planning to use the product of the seizure in a different investigation from the one for which the accused is detained. Here, the form used did not make clear the scope of the consent sought. The use of the plural "investigations" in the consent form did not necessarily import the sense of investigations in relation to multiple offences. The police, at a minimum, had to make it clear to the accused that they were treating his consent as a blanket consent to the use of the sample in relation to other offences in which he might be a suspect.
In the absence of prior judicial authorization, a search or seizure will be unreasonable unless it is authorized by law, unless the law itself is reasonable and unless the manner in which the search was carried out is reasonable. The seizure in this case was not lawful. There is no statutory authorization available for the seizure of a blood sample in relation to the offence of sexual assault. Since the information necessary to a valid consent was inadequate, the taking of accused's blood in relation to the first assault was an unlawful seizure. The taking of the blood in relation to the second assault, however, was consensual.
Once matters reached a point where the officers were investigating two offences, the accused was detained in relation to both of them, and had the right to be informed of this dual investigative intention. The accused's Charter right to be informed of the reasons for his detention (s. 10(a)) was therefore violated. The rights in s. 10(a) and (b) of the Charter are linked. The police must inform a person of the reasons for his or her detention so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy. Here, the accused was given no indication that the police were investigating any offence other than the one for which he had been arrested. When the nature of the police investigations expanded, the accused should have been reinformed of his right to counsel.
In reviewing the application of s. 24(2) of the Charter by a provincial appellate court, this Court should not review the findings of the courts below and substitute its own opinion absent any error as to the applicable legal principles that should guide the s. 24(2) determination. The admissibility of the impugned evidence was scrutinized in light of the proper principles. The Court of Appeal correctly conducted the s. 24(2) analysis anew because the trial judge's finding of a "technical" breach of s. 8 of the Charter, and of no breach of s. 10(a) or 10(b), led him to approach the s. 24(2) analysis from a fundamentally different standpoint. The Court of Appeal concluded that the admission of the results of the DNA analysis of the blood sample would render the trial unfair and properly excluded them. In reaching that conclusion it correctly considered the effect of the admission of the evidence on the fairness of the trial, the seriousness of the Charter violations, the effect of the exclusion of the evidence on the repute of the administration of justice, and the nature of the evidence and when it came into existence.
Per Lamer C.J. and Gonthier J.: Section 10(a) and (b) of the Charter were violated. Once the investigation shifted to the first assault, an obligation arose to inform the accused of his s. 10 Charter rights.
Section 8 of the Charter was also breached; the blanket consent given to the taking of blood was not effective because the accused had not been adequately informed as to why he was detained and because his right to counsel had not been reiterated in light of the change in focus of the investigation. The accused did not know that the request for the blood sample was linked to the investigation of the first assault. The accused consented after his Charter rights arising upon detention had been violated. These violations, while they do not generally render a search unlawful or unreasonable, do so where the lawfulness of the search depends upon the accused's consent.
The accused had no legal obligation to provide the blood sample and the police could not lawfully obtain one without his consent because no statutory authority existed for the issuance of a warrant. The decision to give or refuse the sample is a significant decision for an accused person and counsel has an important role in advising a client as to whether or not to give consent. The accused and his or her counsel are entitled to know the real reason for the detention when making that decision. A consent given where both the right to be informed of the charge and of the right to counsel have been violated is not a valid consent, and without that consent, the taking of the blood here was an unlawful and unreasonable seizure.
The consent, once properly given in the criminal law context, generally does not constrain the uses that may be made of the sample or of analysis results. Consents could otherwise become restricted to searches and seizures in particular investigations. The issue of extracting the sample from the individual's body and the issue of the use that can be made of the results of analysis of the sample once obtained must be kept separate.
Per McLachlin J.: The reasons of Lamer C.J. were agreed with, but with added comments. The accused's right to be free from unreasonable search and seizure (s. 8 of the Charter) was not breached except as derivative of a breach of his rights to be informed of the reasons for his detention and his right to counsel (s. 10(a) and (b) of the Charter). The case turns on whether the investigation had reached the stage where the accused was being detained for the first assault in addition to the second assault for which he had been arrested when he consented to the taking of the samples of his blood and hair. The test is whether the new matter has progressed beyond the stage of an "exploratory investigation." Since the accused was found at trial to be a suspect on the earlier assault at the time the police sought his consent, and since the police admitted that the main purpose for taking the samples was the investigation of that assault, it could be inferred that the accused was detained for the first offence when the samples were taken. Only on the facts of this case ‑‑ where the police did not inform the detainee of the predominant reason for their taking the samples ‑‑ need the individual be told about the anticipated purpose known to the police when the consent is requested. The interests of justice require that police correlate evidence obtained on one offence with other outstanding offences which, at that stage, are unconnected to an accused person by anything but speculative suspicion. Provided the police investigation of the detainee's involvement in the other offences has not passed the exploratory stage, there is no obligation under the Charter for the police to tell the accused that the evidence he or she gives on the offence for which the accused is being held, may be used in investigating the other offences. Once the matter has passed the exploratory stage and the detainee is being held as a serious suspect, the matter is different.
Cases Cited
By Iacobucci J.
Distinguished: R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615; referred to: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417; R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 12 C.R. (4th) 58; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869; R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93; R. v. Elshaw, 1991 CanLII 28 (SCC), [1991] 3 S.C.R. 24.
By Lamer C.J.
Referred to: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.
By McLachlin J.
Referred to: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 10(a), (b), 24(2).
APPEAL from a judgment of the Nova Scotia Court of Appeal (1993), 1993 CanLII 5658 (NS CA), 124 N.S.R. (2d) 163, 345 A.P.R. 163, 84 C.C.C. (3d) 380, 24 C.R. (4th) 184, allowing an appeal from and setting aside conviction by MacDonald Prov. Ct. J. Appeal dismissed.
William D. Delaney and Robert Hagell, for the appellant.
Frank E. DeMont and Katherine A. Briand, for the respondent.
S. R. Fainstein, Q.C., and John J. Walsh, for the intervener.
The reasons of Lamer C.J. and Gonthier J. were delivered by
Lamer C.J. -- I have had the advantage of reading the reasons of my colleague, Justice Iacobucci. I agree with his proposed disposition of this appeal and much of his reasoning in support thereof. However, I feel that I should expand somewhat upon his reasons as I am fearful that they, erroneously, may be given an interpretation by some with which I vigorously disagree.
I agree with Iacobucci J. that violations of s. 10(a) and (b) of the Canadian Charter of Rights and Freedoms were established. Once the investigation shifted to the senior citizens home incident, there was an obligation, which was not met, to convey the information which those sections require to be given to the accused.
With respect to s. 8 of the Charter, I agree that there was a breach, as the Crown conceded before the Court of Appeal.
The key issue for the s. 8 analysis is whether the respondent's consent to the taking of blood was effective in the circumstances. It is not disputed that he gave a consent that did not specify any limitation upon the use to be made of the results of analysis of the blood. However, this consent was given while the respondent was detained, in circumstances in which he had not been informed adequately of the reason for his detention, in which his right to counsel had not been reiterated in light of the change in focus of the investigation and where, according to Constable Roberts' evidence, the accused did not know that the request for the blood sample was linked to the senior citizen's home investigation. In short, the accused consented after his Charter rights arising upon detention had been violated. I do not think those violations, as a general proposition, render a search unlawful or unreasonable. However, they do have that effect in particular situations. A case, such as the present one, in which the lawfulness of the search depends upon the accused's consent is one such situation.
There was no legal obligation upon the accused to provide the blood sample and indeed no lawful means by which the police could obtain one from him without his consent. This is not a situation in which the police have a ready alternative of obtaining a warrant. There is no statutory authority for such a warrant in a case of this sort. Even if there were, there is little in the record to show that the police could have demonstrated reasonable and probable cause to obtain one. The decision to give or refuse the sample is a significant decision for an accused person. Counsel has an important role in advising a client as to giving or withholding consent: see, e.g., R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at p. 13. The accused and his or her counsel are entitled to make that decision in the light of being informed about the real reason for the detention. A consent given where both the right to be informed of the charge and of the right to counsel have been violated is not a valid consent. As I said for the majority in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1147:
If a detained person's consent to a search ... was given while that person's s. 10(b) rights were being violated (either because he has not been informed of his right to counsel or because the police have obtained his consent to search ... before he has been given a reasonable opportunity to exercise his right to counsel) then the search is unlawful and, as such, unreasonable.
This is precisely the situation here. The accused was detained on a new and different charge but was not so advised in violation of s. 10(a). His right to counsel was not reiterated as it ought to have been given this material change in circumstances. This failure was a violation of s. 10(b). A valid consent to the seizure cannot be obtained in these circumstances. Without valid consent, the taking of the blood was an unlawful and unreasonable seizure.
My colleague, Iacobucci J., reasons that, for a consent to be valid, the accused should understand that the police are planning to use the product of the seizure in a different investigation from the one for which he is detained, at least if the police are aware of this as they were in this case. While I do not think it necessary or desirable to deal with the broader question of what is required for a valid consent, I agree with Iacobucci J. that the individual must be told about the anticipated purpose known to the police when the consent is requested.
However, in agreeing, I would not wish to be taken as accepting the general proposition that the consent, once validly given in the criminal law context, constrains the uses that may be made of the sample or the results of analysis thereof. Such an approach runs the risk of considering investigations and consents to searches and seizures in watertight compartments. It also could permit the construction of what would amount to elaborate evidentiary privileges based upon either the purposes for which the evidence was originally obtained or upon the information supplied at the time consent was given. In addition, it is necessary to keep separate the issue of extracting the sample from the individual's body and the use that can be made of the results of analysis of the sample once obtained.
Consider the situation in which a person must decide whether or not to speak to the police. Once the decision to speak is made in the criminal law context (absent concerns about voluntariness or exclusion for Charter breaches), the evidence is available for all purposes. The law recognizes some protected situations, such as where compelled testimony cannot be used against the witness in other proceedings. But generally speaking, once the decision to speak is made, the evidence so obtained is admissible if relevant. I am far from convinced that the same general principle should not operate with respect to consent to provide blood samples in the criminal law context. We do not give effect to the individual's desire to speak on condition that what is said is helpful to his or her case. Likewise, I do not think we should open the door to conditional or limited consents in the criminal law context.
The s. 8 jurisprudence from this Court has recognized that a consent to provide a blood sample for medical purposes is a limited consent and that s. 8 is implicated if the sample so taken is to be converted to police use. I do not take this to mean that other limitations on subsequent use arise from the form or circumstances of consent. The inquiry under s. 8 involves a balancing of the reasonable expectation of privacy and other societal interests, including effective law enforcement. This balancing is highly sensitive to the context and circumstances in which the search or seizure is conducted.
The context and circumstances are markedly different in the case of consent given to police to take blood as part of the investigation of a serious criminal charge than where consent is given for the purpose of medical treatment. There is a high level of expectation of privacy and confidentiality associated with medical treatment and an important benefit in its being provided. Moreover, where the blood sample has been properly obtained for a medical purpose, the police will usually have the option of seeking prior judicial authorization to seize the sample. The consent relates to taking the sample from the body. Once the sample is in existence, the results of its analysis may be obtained upon suitable prior judicial authorization. The context is quite different in a case such as the present one. The consent is elicited in the criminal law context and for law enforcement purposes. There is no confusion between medical treatment and criminal investigation. There will often be no alternative investigative technique available in absence of consent. Without the blood sample in this case, as Constable Roberts conceded in cross-examination, there was no other evidence. This is not to say that any and all techniques are permitted to get evidence when it is otherwise hard to come by. It is to point out that balancing the reasonable expectation of privacy and the needs of law enforcement must take account of the context and circumstances in the particular situation.
I would dismiss the appeal.
The judgment of La Forest, Sopinka, Gonthier, Iacobucci and Major JJ. was delivered by
Iacobucci J. -- This appeal concerns the admissibility of a DNA profile obtained from a sample of the respondent's blood, which was extracted from him while he was detained by the police. The respondent argues that his rights under ss. 8, 10(a) and (b) of the Canadian Charter of Rights and Freedoms were breached by the police in obtaining this sample. As will be evident from the reasons which follow, I am of the view that the respondent's rights were infringed, and that the conclusion of the majority of the Nova Scotia Court of Appeal that the evidence should be excluded pursuant to s. 24(2) of the Charter should not be disturbed.
Background
On October 11, 1989, an elderly woman was sexually assaulted in her home by an intruder. Because it was dark in the room and the intruder covered her face, the woman was unable to identify her assailant. The police suspected that the respondent, who was staying nearby, might be involved. Among the items seized by police from the victim's home was a comforter that was stained with semen.
On December 2, 1989, a warrant was issued for the respondent's arrest in relation to a sexual assault on another woman at the Sundowner Motel. In that attack, no sexual intercourse or ejaculation occurred. The motel complainant had seen the respondent on previous occasions and was able to identify him from a photo line-up. The police seized a number of items from her room, including a hair found on the bathroom door and another found in the bed.
Later that day, the respondent attended at the police station. He was arrested and asked if he wished to contact a lawyer. He replied that he did not wish to talk to a lawyer at that time, and told police that he had already been in contact with a lawyer, whom he named. At 11:10 p.m., Constable Dipersio went to the respondent's cell and asked him if he wished to make a telephone call. The respondent declined this offer.
At 11:20 a.m. on the morning of December 3, two officers spoke with the respondent in an office. Sergeant Brown informed the respondent of his right to retain and instruct counsel without delay, and also informed him that he did not need to say anything, but that what he did say could be used as evidence against him. He advised the respondent that he was suspected by the police to be responsible for a sexual assault at the Sundowner Motel on December 2. The respondent made an oral exculpatory statement. The officer asked the respondent whether he would commit this statement to writing. The respondent agreed to do so.
Constable Roberts again gave the respondent the standard warning and repeated his Charter rights. The respondent indicated that he wished to call a lawyer. After the call was completed, the respondent indicated that his lawyer had instructed him, "not to tell you anything, my name is Josh Randall Borden." After some discussion, the respondent agreed to reduce his earlier oral statement to writing.
Later in the afternoon, the police asked the respondent if he would provide samples of scalp and pubic hair. The respondent agreed to do so, and was described by the officers as "very cooperative." This procedure took about 10-15 minutes, and approximately 150 hairs were taken.
The officers then discussed among themselves whether to request a blood sample. The officers testified that, while the sample had some utility in the investigation of the motel offence, they wanted it "mainly" or "mostly" for their investigation of the October assault on the elderly woman, in order to compare the blood with the semen found on her comforter.
Fifteen minutes later, an officer returned to the cell and asked the respondent if he would provide a blood sample. The respondent replied, "sure, no problem man." Constable Roberts called a senior Crown counsel to discuss the use of the sample in both of the sexual assault investigations. The constable drafted a written consent form in accordance with his discussion with the Crown. The form stated:
I, Josh Randall Borden, of Frederick Street, in New Glasgow, Pictou County, do hereby give my consent to the New Glasgow Police Department to take a sample of my blood for the purposes relating to their investigations.
The use of the plural "investigations" was deliberate.
The officer read the consent form to the respondent and passed it to him. He looked at it and signed it. The officers acknowledged that the respondent was given no indication, other than the use of the word "investigations" in the consent form, that the blood was also being sought for possible use in the investigation of the October assault.
The blood sample was analyzed, and the respondent was subsequently charged with sexual assault in relation to the October attack. A voir dire was held before the trial judge to determine whether the results of the DNA typing of the blood sample should be admitted into evidence. The trial judge found that there had been a "technical" infringement of the respondent's rights under s. 8 of the Charter, but declined to find an infringement of s. 10(a) or (b). He concluded that the admission of the evidence would not bring the administration of justice into disrepute, and refused to exclude the evidence pursuant to s. 24(2).
The trial judge concluded that the expert evidence established that the DNA profile of the respondent's blood sample was the same as the DNA profile of the semen stain on the blanket, and convicted the respondent of sexual assault. He was sentenced to six years imprisonment. The respondent appealed to the Nova Scotia Court of Appeal (1993), 1993 CanLII 5658 (NS CA), 124 N.S.R. (2d) 163, which allowed the appeal and set aside the conviction. Pugsley J.A., Jones J.A. concurring, found that the respondent's s. 10(a) and (b) Charter rights, as well as his s. 8 right, had been infringed, and excluded the evidence pursuant to s. 24(2) of the Charter. Freeman J.A., dissenting, found that no infringement of the respondent's rights had occurred, and, even assuming a technical infringement, that the evidence should not be excluded. The Crown appeals as of right to this Court.
Issues
There are two issues in this appeal. The first is whether the respondent has established that his rights under ss. 8, 10(a) and (b) of the Charter were infringed. The second is whether, if these rights were infringed, the majority of the Nova Scotia Court of Appeal erred in principle in their conclusion that the evidence obtained as a result of the infringement ought to be excluded pursuant to s. 24(2) of the Charter.
Analysis
Section 8
I agree with the conclusion of the trial judge on the voir dire and of the majority of the Court of Appeal that the respondent's s. 8 right to be secure against unreasonable search and seizure was violated. The police do not possess the statutory authority to demand or take a blood sample from a person charged with the offence of sexual assault. For the taking of the blood of the respondent in this case to be valid, the police required his consent. The police did obtain a lawful and valid informed consent from the respondent in relation to the taking of his blood for use in the investigation of the motel offence, for which he had been arrested. This fact led Freeman J.A., in dissent, to conclude that there was no s. 8 infringement in this case, and that the respondent had to prove a breach of another Charter section.
I disagree. While it is true that the infringement of s. 8 of the Charter alleged in this case comes from the same source as the alleged s. 10 infringements, that is, the failure of the police to inform the respondent of their predominant purpose in seeking the blood sample, I am of the view that the respondent has demonstrated an infringement of s. 8 which is independent from the s. 10(a) and (b) claims.
The jurisprudence of this Court indicates that a seizure occurs whenever there is a non-consensual taking of an item by the state in respect of which the citizen has a reasonable expectation of privacy: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 432 and 435. The words of La Forest J. at pp. 431-32 of that decision are apposite:
There was no consent to the taking of the blood sample in this case; Mr. Dyment was unconscious at the time. But even if he had given his consent, I do not think that would have mattered if the consent was restricted to the use of the sample for medical purposes. . . . As I have attempted to indicate earlier, the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity.
Obviously a person does not cease to have a reasonable expectation of privacy in his or her blood at any time while that blood is still inside his or her body. In this case the taking of the sample, with consent, for use in the investigation of the motel offence, was coincident with its taking for use in the investigation of the October sexual assault. The officers testified that they had every intention of using the sample for the investigation of both crimes, and that the October offence was their main focus. They sought advice on how to ensure that they could use the sample for both purposes, and deliberately used broad language on the consent form, including the word "investigations" in the plural. The seizure of the blood for use in the present appeal was effected simultaneously with its seizure for use in the motel offence.
Therefore, the relevant time for assessing whether there was a seizure in relation to this appeal was at the time the sample was first taken. At that time, the respondent had an expectation of privacy with respect to his bodily integrity and the informational content of his blood. It must therefore be shown that the taking of the sample in respect of this appeal was accompanied by his consent. In the absence of such consent, there was a seizure, and its reasonableness must be scrutinized to determine whether s. 8 of the Charter was violated.
As noted above, the consent for the taking of the sample in relation to the motel offence was, on its own, a valid one. The issue, then, is whether the respondent also consented to a seizure of his blood in relation to the October sexual assault offence. The argument of the appellant in this regard was two-fold. First, relying on R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, the appellant argued that the proper test for determining whether a person has consented to the taking of an item by the state was one of voluntariness, akin to the standard applied when the admissibility of a confession is in issue. Second, the appellant argued that, even if the test for the waiver by an accused of his or her s. 8 right
is identical to that used to determine whether there has been a valid waiver of the rights found in s. 10 of the Charter, such that some awareness of the consequences of the waiver is required, this threshold is met on the facts of this case. I will consider each of these submissions in turn.
With regard to the test to be applied, I cannot find that the decision of this Court in Mellenthin, supra, is of assistance to the appellant. While it is true that Cory J. in that case stated at p. 624 that it was, "incumbent upon the Crown to adduce evidence that the person detained has indeed made an informed consent to the search based upon an awareness of his rights to refuse to respond to the questions or to consent to the search", I cannot interpret this assertion as purporting to set out an exhaustive statement of the general test for the requirements for a valid consent to a police search.
On the facts of Mellenthin, it was not necessary to consider whether it was also a requirement for a valid consent that the accused be aware of the consequences of that consent. Obviously the accused in Mellenthin was aware that, if the police found the drugs that he had in his bag, this could lead to potential charges. The real issue was whether the accused knew that he was not required to show the officer what was in his bag.
I agree with Doherty J.A., for the Ontario Court of Appeal in R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 12 C.R. (4th) 58, at p. 72, that:
When one consents to the police taking something that they otherwise have no right to take, one relinquishes one's right to be left alone by the state and removes the reasonableness barrier imposed by s. 8 of the Charter. The force of the consent given must be commensurate with the significant effect which it produces.
In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. This is equally true whether the individual is choosing to forego consultation with counsel or choosing to relinquish to the police something which they otherwise have no right to take.
Such an approach, in my view, is implicit in the statement of Lamer J. (as he then was) in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, that, while as a general rule a lawful search of the person did not have to be suspended pending exercise of the detainee's right to counsel, an exception existed in cases where the search required the detainee's consent. It is also implicit in the decisions of this Court in Dyment, supra, and in R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20, at p. 55, which recognize that a consent to the taking of blood can be limited to a taking for certain purposes only. This concept reveals a link between the scope of a valid consent and the scope of the accused's knowledge in relation to the consequences of that consent.
The appellant argued that the test for constitutional waiver of the s. 8 right is met in this case, because it is reasonable to infer that the respondent knew that the police had an open investigation on the October assault of the elderly woman, since he had committed the offence seven weeks earlier. He also knew that he had left semen at the scene. In his evidence on the voir dire, the respondent indicated that he understood that a comparison of blood and semen samples was possible.
As my colleague Sopinka J. pointed out at the hearing of this appeal, the logical extension of this argument would be that the protections afforded by the Charter no longer apply whenever the person arrested is guilty of the offence for which he or she has been detained. Also inherent in this line of argument is the unfairness of relying on the results of evidence whose admissibility is in dispute to support the contention that the respondent's rights were not violated. Moreover, the reasoning of the appellant on this point is completely contradicted by the observed behaviour of the respondent at the police station, as well as the testimony of the officers as to their understanding of the respondent's state of awareness. The respondent was at all times extremely cooperative with the police. He gave the sample in the face of the advice of his lawyer not to say anything to the police other than his name. Although the trial judge made no finding that the respondent communicated this fact to the police, it is clear that there was no intercourse and no ejaculation involved in the Sundowner Motel complaint. The most reasonable inference to be drawn from these facts is that the respondent did not turn his mind to the possibility of the use of the blood sample in relation to any other offences.
In fact, Constable Roberts testified that he was aware when he passed the respondent the consent form that the respondent had no idea that the blood sample was also sought in connection with the earlier sexual assault case. Faced with such a situation, the police did nothing to disclose to the respondent that they had a second purpose in mind for the blood sample. While it is true that they attempted to draft the consent form very broadly, I am of the view that the form used did not make clear the scope of the consent sought from the respondent. The word "investigations" does not necessarily import investigations in relation to multiple offences.
This oblique indication of the true intentions of the police was wholly insufficient. It was incumbent on the police, at a minimum, to make it clear to the respondent that they were treating his consent as a blanket consent to the use of the sample in relation to other offences in which he might be a suspect. I express no opinion on the question of whether there would have been a seizure if the intention of the police to use the sample in respect of the October assault case, and the subsequent appropriation of the sample for that purpose, did not exist until some time after the seizure of the blood for use in the motel case. For the reasons set out above, and in particular given the admitted intentions of the police, such a characterization of the facts of this appeal would be artificial.
The degree of awareness of the consequences of the waiver of the s. 8 right required of an accused in a given case will depend on its particular facts. Obviously, it will not be necessary for the accused to have a detailed comprehension of every possible outcome of his or her consent. However, his or her understanding should include the fact that the police are also planning to use the product of the seizure in a different investigation from the one for which he or she is detained. Such was not the case here. Therefore, I conclude that the police seized the respondent's blood in relation to the offence forming the subject matter of this charge.
The question of whether the seizure was unreasonable can be disposed of simply. In the absence of prior judicial authorization, a search or seizure will be unreasonable unless it is authorized by law, the law itself is reasonable and the manner in which the search was carried out is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; and R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263. The seizure in this case was not lawful. There is no statutory authorization available for the seizure of a blood sample in relation to the offence of sexual assault. A lawful seizure in this case required the respondent's consent. For the foregoing reasons, I find that consent to be absent.
Section 10
This non-disclosure on the part of the police of their dual purpose in seizing the respondent's blood also forms the basis for the claim that the s. 10(a) and (b) rights of the respondent were infringed. The appellant argued that the respondent's s. 10(a) and (b) rights were not triggered in this appeal, in that he was never arrested or detained in relation to the October sexual assault. Rather, the entire time that he was in the custody of the police, he was detained for the motel sexual assault.
This argument, however, contradicts the testimony of the police officers, who admitted that their predominant intention in taking a sample of the respondent's blood was the investigation of the assault on the elderly woman by a comparison of the DNA in the blood with the DNA in the semen found on her blanket. As already mentioned, the taking of the blood represented both a consensual taking in respect of the motel offence, and a seizure of it in respect of the October offence. Once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dual investigative intention. Therefore, I find that the right of the respondent under s. 10(a) of the Charter to be informed of the reasons for his detention was violated in this case.
As this Court has previously stated, the rights in s. 10(a) and 10(b) of the Charter are linked. One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy: R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53; and R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at p. 728. To the credit of the police in this appeal, they were extremely fair in facilitating the exercise of the respondent's right to counsel in respect of the sexual assault for which he had been arrested. Obviously, the respondent ignored the advice of his lawyer not to tell the police anything.
One can only speculate, however, whether the lawyer would have specifically dissuaded the respondent from giving a blood sample if the respondent could have informed the lawyer that he was also being detained for a sexual assault in which there was ejaculation: see Black, supra, at p. 153. This is not a case where, as in Smith, supra, or in Black, supra, the accused knew generally of the events or circumstances that had led to his detention, but was under informed as to their practical or legal consequences. In this case, the respondent was given no indication that the police investigations were directed at any offence other than the one for which he had been arrested. When the nature of the police investigations expanded, the respondent should have been reinformed of his right to counsel. As was stated by McLachlin J. in R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 892-93:
. . . there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning.... I add that to hold otherwise leaves open the possibility of police manipulation, whereby the police -- hoping to question a suspect in a serious crime without the suspect's lawyer present -- bring in the suspect on a relatively minor offence, one for which a person may not consider it necessary to have a lawyer immediately present, in order to question him or her on the more serious crime.
I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that. . . the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different or unrelated offence or a significantly more serious offence than the one contemplated at the time of the warning.
Therefore, I find that s. 10(b) of the Charter was also violated in this case.
Section 24(2)
The final issue is whether the evidence obtained through these breaches of the Charter, that is, the DNA profile of the respondent's blood, should be excluded because its admission would bring the administration of justice into disrepute. In reviewing the application of s. 24(2) of the Charter by a provincial appellate court, this Court has made it clear that, absent any error as to the applicable legal principles that should guide the s. 24(2) determination, it is not the proper role of this Court to review the findings of the courts below and to substitute its own opinion for that of the court of appeal: R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93, at p. 98.
Equally, as Cory J. noted in Mellenthin, supra, a provincial appellate court should not, absent a similar error of principle, interfere with the conclusions of the trial judge on the voir dire. What is important is that the accused has had the admissibility of the impugned evidence scrutinized in light of the proper principles. In this case, it cannot be said that the Court of Appeal erred in not following the decision of the trial judge, and in conducting the s. 24(2) analysis anew. The fact that the trial judge found only a "technical" breach of s. 8 of the Charter, and no breach of s. 10(a) or (b), led him to approach the s. 24(2) analysis from a fundamentally different standpoint.
The majority of the Court of Appeal considered the factors set out by Lamer J. (as he then was) in R. v. Collins, supra, namely: the effect of the admission of the evidence on the fairness of the trial; the seriousness of the Charter violations; and the effect of the exclusion of the evidence on the repute of the administration of justice. The majority considered the nature of the evidence and the point in time at which it came into existence, and concluded that the admission of the results of the DNA analysis of the blood sample would render the trial unfair. Their reasons in this regard are not in error.
The majority noted the police testimony that there was no urgency which required them to obtain the sample at that time. Also noted was the acknowledgment of Constable Roberts that he was aware that the respondent did not at all understand that the consent form was also directed at the October sexual assault. The majority characterized this, at p. 173, as "tend[ing] to indicate a disregard for the Charter," and concluded that the three violations were serious in nature.
Finally, the majority considered whether the administration of justice would be better served by the admission of the evidence or rather by its exclusion. Applying the Collins standard of the reasonable member of the community, dispassionate and fully informed of the circumstances, the majority concluded that the admission of the evidence would bring the administration of justice into greater disrepute than its exclusion. The majority applied the decision of this Court in R. v. Elshaw, 1991 CanLII 28 (SCC), [1991] 3 S.C.R. 24, in which it was held that, while the bad faith of the police would operate to strengthen the case for exclusion, the good faith of police could not support the admission of evidence in circumstances where that admission had been found to render the trial unfair.
The majority considered the importance of the evidence to the Crown's case, the gravity of the offence and the circumstances in which it was committed, as well as the reliability of the evidence. The majority correctly took a long-term view of the effect on the administration of justice of the repeated admission or exclusion of this type of evidence in similar circumstances (Collins, supra, at p. 281), and concluded that it should be excluded.
I can find no error in principle in the enunciation by the majority of the court of appeal of the considerations relevant to the s. 24(2) determination. I would only add that, in my view, it is important not to let the fact that the evidence sought to be admitted is the DNA analysis of a blood sample obscure the nature of the violations which took place in this case. This is not so much a case about the seizure of blood or about the introduction of DNA evidence as it is a case about the failure of the police to impart to the respondent any real sense of the extent of his jeopardy, and about their willingness to proceed in the face of knowledge of this lack of understanding. In this case, the key evidence necessary to the Crown's case was obtained from the respondent in circumstances where he was completely uninformed about the main purpose of the police in requesting it from him. Therefore, regardless of how the evidence is classified, its admission would render the trial unfair.
In the absence of a statutory scheme whereby the police can demand a blood sample in cases such as these (a scheme that may raise Charter concerns), the police require the true consent of an accused. They did not have that consent in this case, and the majority of the Court of Appeal was entitled to conclude that the evidence obtained thereby should be excluded. I would therefore dismiss the appeal.
The following are the reasons delivered by
McLachlin J. -- I agree with the reasons of the Chief Justice. I wish however to add certain comments.
I see no breach of the accused's right to be free from unreasonable search and seizure (s. 8 of the Charter) except as derivative of a breach of his rights to be informed of the reasons for his detention and his right to counsel (s. 10(a) and (b) of the Charter). On this view, the case turns on whether the investigation had reached the stage where Mr. Borden was being detained for the assault on the senior citizen in addition to the assault on the exotic dancer for which he had been arrested at the time he consented to the taking of the samples of his blood and hair. The test as set out in R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 892-93, is whether the new matter has progressed beyond the stage of an "exploratory investigation." As I wrote in Evans, at p. 893, "I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence".
Given the finding of the trial judge that Borden was a suspect on the earlier assault at the time the police sought his consent, and the police admission that the main purpose for taking the samples was the investigation of that assault, I agree that it may be inferred that Borden was detained for the earlier offence at the time the samples were taken. The case, however, is close to the line, which accounts in part for the divergent opinions below.
The Chief Justice and Justice Iacobucci agree that "the individual must be told about the anticipated purpose known to the police when the consent is requested." I would confine that observation to the facts of this case, where the police failed to advise the detainee of the predominant purpose for which they wanted the samples -- the specific investigation of a different offence in which the accused was being held as a suspect. It is in the interests of justice that police correlate evidence obtained on one offence with other outstanding offences, which at that stage are unconnected to an accused person by anything but speculative suspicion. Provided the police investigation of the detainee's involvement in the other offences has not passed the exploratory stage, there is no obligation under the Charter for the police to tell the accused that the evidence he or she gives on the offence for which he or she is being held, may be used in investigating the other offences. Such a requirement would only serve to confuse and frighten suspects, who would find themselves repeatedly warned that they may be implicated in crimes to which there is no evidence linking them. It would also involve the police and courts in detailed investigations of the suspicions and intentions of this or that officer at the time the exploratory evidence was being taken to ascertain "the anticipated purpose known to the police when the consent [was] requested." Once the matter has passed the exploratory stage and the detainee is being held as a serious suspect, the matter is different. But at the exploratory stage, I see no need to enter into such conjectures.
I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: The Attorney General of Nova Scotia, Halifax.
Solicitor for the respondent: Frank E. DeMont, New Glasgow.
Solicitor for the intervener: The Attorney General of Canada, Ottawa.
