Court File and Parties

Court File No. 12-228

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. –

KYLE AMEY

RULING ON MOTIONS

BEFORE THE HONOURABLE

JUSTICE C. GILMORE

On APRIL 8th, 2013, at BARRIE, Ontario

APPEARANCES:

A. Tierney Counsel for the Crown

R. Handlarski Counsel for Mr. Amey

April 8th, 2013

Gilmore, J. (Orally):

CHARTER AND VOLUNTARINESS RULING

OVERVIEW

[1]

The accused Amey is charged with one count of sexual assault on B.L.H.. It is alleged that the assault occurred on December 3, 2011 at M[…] Street, Penetanguishene (“Penetang”) Ontario.

[2]

Two applications were heard in this matter between April 2nd and 5th, 2013; the Crown’s application to adduce at trial certain utterances made by Amey to Detective Constable Juneau as admissions against interest, and Amey’s application to exclude derivative evidence from the warrantless swab of his penis. Amey’s application states the manner in which the swab was taken was a violation of his section 7, 8, and 10(b) rights pursuant to section 24(2) of the Charter of Rights and Freedoms (“Charter”).

[3]

The matter was heard as a blended voir dire prior to trial. The jury was selected on April 2nd, 2013 and the trial will proceed on April 9th, 2013.

FACTUAL BACKGROUND

M[…] Street and the Foodland store, Penetanguishene

[4]

On the night of December 2nd, 2011 Constables Connie Greges and Kathryn Charlebois were working night shift. They were members of the Midland OPP detachment. Both had worked as police officers for over ten years. Constables Greges and Charlebois were on general uniformed patrol together when they received a call from dispatch around 2:00 a.m. on the morning of December 3rd, 2011.

[5]

A complaint had been received of a disturbance at M[…] Street in Penetang. The alleged victim in this mater was described as out of control and smashing things in the complainant’s apartment (apartment [number]). The officers arrived at the scene at 2:18 a.m. They proceeded upstairs to the apartment area. The main floor of M[…] Street was a business establishment formerly known as Y[…]. The apartments were on the second and third floor of the building. Apartment [number] was on the second floor.

[6]

When the officers arrived they found the alleged victim (“B.L.H.”) very upset. She was screaming and crying and they attempted to calm her. She told the officers she had been raped. She was clearly intoxicated. Constable Greges learned later from B.L.H.’s sister that B.L.H. had suffered brain damage from a car accident. Constable Greges questioned the impact of that injury on B.L.H.’s demeanour and her assessment of the degree of intoxication. Constable Greges testified that B.L.H. appeared to understand what was being said to her.

[7]

While at M[…] Street, B.L.H. showed the officers a dark, dead end hallway where she said the sexual assault had occurred.

[8]

Constable Greges accompanied B.L.H. to Soldiers’ Memorial Hospital as B.L.H. had consented to be examined for the rape kit. She brought B.L.H. back to the detachment at 8:15 a.m.

[9]

At 2:17 a.m. Constable Sarah McCluskey arrived at the scene. She has been with Midland OPP since 2011. She had also been called to the scene as a result of the call from the occupants of apartment [number]. She noted that B.L.H. appeared intoxicated and that her words were slurred. B.L.H. told McCluskey that she never usually got as drunk as she was that night. McCluskey remained on scene for security purposes until 6:26 a.m.

[10]

Constable Peter Hunter was a member of the Emergency Response Team at the time of this incident. He was working in uniform on the evening of December 3rd, 2011 While on general patrol duty with his partner Constable Gentle he received a call at 2:30 a.m. that a shirtless man covered in blood had been seen at the Mac’s Milk, Tim Horton’s and Foodland stores on Main Street.

[11]

Constable Hunter attended at the Foodland store at 2:45 a.m. He observed a white male with brown hair wearing blue jeans and black shoes. He identified Amey in court as being the male he saw that evening. He also observed that Amey was not wearing a shirt and was covered with blood. He was unsteady on his feet and smelled of alcohol. He had scratches that were a bit red and bloody on his chest, neck and left bicep. When asked his name the male identified himself as Kyle Amey.

[12]

Hunter described Amey as fidgety and uncomfortable. He was talking about his mother being outside. There were drops of blood in the store where he had been walking.

[13]

When Constable Hunter arrived, Constables Juneau, Mason and Harker were already there. Hunter did not know about any sexual assault allegation against Amey at the time of his arrival on scene nor did he ever hear any of the other officers mention such an allegation. He testified that Juneau engaged in conversation with Amey that lasted about five minutes. Amey made an utterance to Juneau that related to him not watching his boundaries with girls. Shortly after that he was arrested by Juneau, handcuffed read his rights to counsel and cautioned. Hunter did not think that Amey responded to the caution but recalled that Amey indicated he wanted to speak to a lawyer.

[14]

Sergeant Randall Mason has been with the OPP for 18 years. On December 3rd, 2011 he was working an evening shift as acting shift sergeant. Mason heard the disturbance call come in and knew that officers Juneau and Harker had gone to the Foodland store. When he arrived, Gentle, Harker, Juneau and Hunter were already there.

[15]

Mason observed Amey to be pacing and moving around when he arrived. He noted a lot of blood on the floor and counters of the store. Amey was shirtless, bleeding and had scratches on his back, throat, chest, and one ear. Mason described it as “dramatic.”

[16]

Shortly after arriving Juneau told Mason that Amey was a suspect in a sexual assault which was alleged to have occurred at M[…] Street. At this point he was standing beside Juneau and Harker and in Mason’s words the officers were “almost surrounding Amey.” At times they were less than four feet away from him.

[17]

Mason described Amey as intoxicated. He was agitated, confused, anxious and “worked up.” He was uncomfortable when the officers were standing around him. Although Mason did not have any direct contact with Amey he observed that he was talking back and forth with the other officers and particularly Juneau. He appeared animated and was using his arms while talking.

[18]

Mason testified that the entire period in the Foodland was part of the arrest. However, he later retracted part of this by saying that perhaps it was a “misuse of phraseology.” He did not agree that Amey should have been cautioned or told he was under arrest while talking with the officers. However, he did agree that from the time he arrived Amey would not have been permitted to leave the store if he had tried to do so. He did note some utterances made by Amey and agreed Amey had not been cautioned prior to making those utterances.

[19]

Mason saw Juneau arrest Amey but did not witness Juneau read him the caution or rights to counsel. Mason was on the phone with his supervisor to advise him of the arrest and he also called Forensic Identification Officer Barnstaple to assist at the detachment.

[20]

Sergeant David Harker was also on duty on the evening of December 2nd, 2011. He did not testify in this hearing but provided an affidavit. Since he was not available for cross-examination the affidavit evidence must be treated with some caution.

[21]

Harker attended at the M[…] Street location at 2:15 a.m. He spoke to B.L.H. who told him she had been sexually assaulted in the hallway by a male wearing jeans with beard growth on his face. He did not have a shirt on. She told Harker and other officers present that the male person had “pulled her pants down and stuck his dick in her.” She did not mention that he was bleeding nor was any blood detected in the hallway where the incident was alleged to have occurred.

[22]

At 2:25 a.m. Harker received a dispatch that a shirtless male covered in blood had been seen at the Mac’s Milk and then the Tim Horton’s on Main Street not far from M[…] Street. Harker attended at the Tim Horton’s and observed blood on the floor and the door. However, the male person was not there.

[23]

Harker then received a dispatch that an employee of Foodland had flagged down police. He attended the Foodland store at 2:37 a.m. When he arrived he noticed drops of blood on the floor and observed a male (later identified as Amey) standing near the courtesy counter, not wearing a shirt and with cuts on his faced, chest and hands. He appeared intoxicated as his speech was slurred and he was stumbling. He said something about his mother coming to get him.

[24]

Harker heard Juneau asking Amey several times how he received his injuries. He heard Amey say something about overstepping his boundaries that night. At 3:07 a.m. Harker returned to the detachment and observed Juneau do a pat down search of Amey. Duty counsel was called for Amey at 4:00 a.m.

[25]

Mr. Brian Dwinnell was called as a witness for the Crown. He was working the night shift at the Mac’s Milk on Main Street in Penetang on the evening of December 2nd 2011. On that evening a man came into the store without a shirt. He was bleeding badly from his arm and holding his hand over what appeared to be a cut or gash. He dripped blood on the counter and the lottery tickets on top of the counter.

[26]

The man asked Mr. Dwinnell to call 911. Mr. Dwinnell called 911 and the man took the phone from him and started to talk to the dispatcher. Mr. Dwinnell described him as nervous and upset. He could not really understand what the man was saying. He described him as “out of it,” “like he was in another world.”

[27]

Mr. Steven Desjardins also gave evidence for the Crown. He was working the nightshift at the Penetang Foodland on December 3rd, 2011. He flagged down a police officer after a man came into the store without a shirt and dripping blood.

[28]

Mr. Desjardins said the man was trying to call his mother from the phone at the courtesy desk. His speech was slurred as if he had been drinking. Blood was dripping off his fingers. Mr. Desjardins offered him some paper towel to clean up the blood from the floor and counter. The witness was shown store surveillance tape from that evening and confirmed that the man on the tape was Amey.

[29]

When the place came into the store they asked Amey what was going on and if he was okay. Mr. Desjardins described the police as being about four feet away from Amey. They were calm with him. He heard them ask Amey the same thing a number of times. His answers were indirect. The police were talking to Amey for about 15 minutes. At one point Amey attempted to shake the hand of one of the officers.

[30]

Detective Constable Juneau was the lead investigator in this case. He was been with the OPP since 2005. He was working in uniform on the evening of December 2nd, 2011. At 2:12 a.m. he was dispatched to M[…] Street with respect to a noise disturbance complaint. When he arrived he observed B.L.H. who was hysterical and telling Constable Greges that a male had sexually assaulted her and “put his dick in me”. She did not know him but described him as scruffy, blondish and without a shirt. He had taken off running. As this matched the description of the male seen at Mac’s Milk and Tim Horton’s, Juneau left to see if he could locate the described male. While driving on Main Street a person from the Foodland store flagged him down in his cruiser and told Juneau that a male person who was bleeding was in the store.

[31]

When Juneau entered Foodland at 2:37 a.m. he saw Amey at a counter. He was shirtless, bleeding from his hand and had scratches on his chest. Juneau’s notes indicated that the person he saw in Foodland exactly matched the description of Amey received from B.L.H.. Juneau testified that he thought there may be up to a four minute discrepancy between the times in his notes and the times stamped on the video surveillance tape.

[32]

When Juneau approached Amey he did not tell him he was detained or a suspect in a criminal investigation. He asked Amey his name and why he was bleeding. He felt that he needed information from Amey and that that superseded any requirement to tell Amey he was detained or being investigated. He did not intend to ask him about the allegations and felt that public safety was paramount.

[33]

Amey did not answer Juneau’s enquiries at first. Juneau noted that Amey was heavily intoxicated and he was moving his arms around a lot; although he appeared to know where he was and that he was in the presence of the police. Juneau had heard that Amey said he was in a fight when he was at Mac’s Milk and at Tim Horton’s he told staff he was in a car accident. He wanted to know why Amey was bleeding as he was concerned that Amey was the victim of an accident or that there were other victims if there had been a fight.

[34]

Juneau testified that he would not have permitted Amey to leave at this point. He had to find out why he was bleeding and continue his investigation of the sexual assault. He agreed that he engaged Amey in questioning and conversation for approximately 13 minutes before arresting him. He testified that he had to continue to engage Amey because he would not initially answer questions and he was obliged to satisfy himself that Amey was not a victim nor that there were any further victims. It was not a two way conversation for most of that time according to Juneau.

[35]

After beng asked these same questions a number of times Amey finally said that his name was Kyle Amey. He told Juneau he had been at a party that night on M[…] Street with girls and that he had gone beyond his boundaries. Juneau arrested Amey at that point. He told him he was being arrested for sexual assault and handcuffed him at the back. He then gave Amey a pat down search for weapons. He took him outside the store and read him his rights to counsel and caution from his OPP issue card at 2:42 a.m. Amey did not respond verbally but nodded his head. Juneau took this to mean he wanted to speak to a lawyer although he made no note of this in his notebook. Amey said he wanted to call his mother and go home and would not bother anyone.

[36]

At 2:52 Juneau gave Amey the right to counsel and caution again in what he described as “common words”. He told Amey that he did not have to say anything and that he could call a lawyer when he got back to the station. He repeated that Amey was under arrest for sexual assault. On the way back to the detachment Amey continued to state that he just wanted to go home to his mom, sleep in his own bed and not bother anyone. Juneau agreed that people who are intoxicated often repeat themselves.

The Penile Swab

[37]

Amey and Juneau arrived at the detachment at 3:07 a.m. Amey was brought into an open area and his handcuffs were removed as was his belt and shoes. A pat down search was performed. Initially Amey was slightly resistant to commands but ultimately he complied. When the search was completed Amey was handcuffed and placed in a cell.

[38]

Juneau testified he completed a sexual assault course in 2008 where he had learned about taking penile swabs in sexual assault cases. He recalled that his instructor had told him that a penile swab could be taken incident to arrest as long as there were reasonable and probable grounds. He told the Court that there were written materials and case law to support this but he could not recall the name of his instructor or the cases. Based on this course and his experience investigating major crimes and discussions with senior officers he felt that a penile swab incident to arrest was permitted in exigent circumstances.

[39]

Sergeant Mason testified that he questioned both Juneau and Barnstable about proceeding in this matter because he felt it was a pretty severe intrusion on a human being. He wanted to be assured of the legality of the procedure. Barnstable and Juneau convinced him that based on their experience, swabbing Amey’s penis in the circumstances was entirely proper where there were exigent circumstances and it was incident to arrest. Mason remained somewhat reluctant but stayed to observe the procedure.

[40]

Juneau wanted to obtain a swab in this case to determine if B.L.H.’s DNA was on Amey’s penis. He knew that B.L.H. had said that the man who assaulted her had “put his dick in her” according to her, and that the person they arrested matched the description of the male given by B.L.H.. He testified that this gave him the necessary reasonable and probable grounds to believe that Amey’s penis had touched the alleged victim and that he therefore had the right to swab Amey’s penis incident to arrest given the exigent circumstances.

[41]

In order to ensure that the DNA evidence was preserved and to avoid contamination, Amey was kept handcuffed to a bar in his cell so he would not have access to water. Juneau did not want Amey washing his hands or penis, washing his clothes or urinating, as that may have affected the integrity of any DNA evidence. At 3:15 a.m. Juneau informed Amey that the reason he was still handcuffed was because he may have evidence on his body that was needed for the investigation and that police would be swabbing his penis. Amey replied something to the effect of “okay” or “sure.” The caution and rights to counsel were read to him again. Juneau conceded that his notes reflect that Amey was given his rights to counsel and caution but that they do not mention that he was told his penis would be swabbed. Juneau testified he remembered telling Amey this and remembered his response. At this point, according to Juneau, Amey was aware that his penis would be swabbed in order to collect evidence. Juenau conceded that he did not tell Amey that he had the right to speak to counsel specifically about the swabbing although he did concede it was a more invasive procedure than usual. His evidence was that Amey had all the information (i.e. his rights to counsel, caution and the fact he would be swabbed for the alleged victim’s DNA) before he made the call and that he did not need to ask Amey if he was satisfied with the advice he received from duty counsel.

[42]

Juneau considered the circumstances to be “exigent” with respect to collecting the DNA evidence. He was concerned about it being lost. He knew a warrant would take at least 12 hours as a judge’s order was required. He feared the DNA would be lost by then. Further, the samples being collected were not those of Amey but of the alleged victim.

[43]

At 4:00 a.m. duty counsel was called for Amey. Juneau was asked why it took 53 minutes for duty counsel to be called after Amey arrived at the station. While he agreed that the private room for calling counsel had no sink or water he described the concerns about Amey’s behaviour in his cell during that period. Amey had attempted to change the position of his handcuffs by putting his legs through them. The officers remained concerned about preserving any possible DNA evidence.

[44]

Juneau spoke with Forensic Identification Officer Barnstaple at 4:50 and 5:10 a.m. about the penile swab. A videotape was made of the swabbing procedure. Juneau felt that videotaping would be prudent because it would show that Amey’s dignity was preserved throughout and that the police did not threaten or use violence on Amey in order to obtain the sample.

[45]

The videotape was played in court and showed Juneau and Amey going into his cell at 5:10 a.m. He was handcuffed behind his back for the safety of the officers. At 5:14 a.m. Juneau and Barnstaple pulled down Amey’s clothing to expose his penis. Barnstaple held Amey’s penis in one hand and swabbed it with the other. Both officers were wearing latex gloves. Amey’s pants and underwear were then pulled back up, the handcuffs removed and Amey was lodged back in his cell at 5:17 a.m.

[46]

After the swab was done, Amey motioned to Juneau and asked to speak with him. He told him he had had sex with a girl he did not know. When asked by Juneau what he meant by that he said he had consensual sex with a girl he did not know but he loved her. He then continued with his pleas to be taken home to his mother.

[47]

Forensic Identification Officer Steven Barnstaple also gave evidence. He has been an ID officer since 2001. When contacted by Mason and told of the situation he requested that Amey be kept in an area where he could not wash himself. At 4:45 a.m. he arrived at the detachment and spoke with Juneau and Mason about the swabbing. He was told that Amey had been given his rights to counsel and spoken with a lawyer by this point. Barnstaple had done one penile swab before this and has done one since. Neither of those cases were the subject of a trial or Charter challenge.

[48]

Barnstaple met Amey and told him he would be photographing him and swabbing his penis. He wanted to take the sample from Amey quickly as he was concerned that the DNA of the alleged victim may be lost if Amey washed himself, touched his penis with the blood from his hand or went to the bathroom. He considered the circumstances to be “exigent” because a warrant would have taken between 12 hours and two days to obtain. It would not have been reasonable to keep Amey handcuffed or prevent him from going to the washroom for that long.

[49]

Barnstaple testified that Amey was cooperative with him and appeared to know what was going on as he acknowledged the officer’s instructions and looked him in the eye when spoken to. He requested that Amey be handcuffed behind his back during the taking of the sample to protect him as he would be holding onto Amey’s penis. He helped Juneau pull down Amey’s pants enough to see his penis. He used a small white stick and rubbed around the shaft of the penis for a few seconds. He then put the swab in a package and sealed it. Amey because of the handcuffs, could not hold onto his penis and allowed Barnstaple to take the sample. His hands remained bloody at that time. In Barnstaple’s experience DNA from blood will often overpower other DNA samples and he did not want Amey’s blood to interfere with the integrity of the sample he had taken.

[50]

Detective Constable Falls interviewed Amey at 11:12 a.m. on December 3rd, 2011. A transcript of the interview was made available to the Court as was the videotape. At the start of the interview Amey was asked if he wished to call a lawyer. He said “of course”. He told Falls he did not want to talk to anyone or say anything. He told Falls he could not remember anything from the night before except being at a party at Leroy’s apartment where he talked to his sister and asked her out for dinner. He had no recollection of going to Tim Hortons, Mac’s Milk or Foodland. He could not recall being arrested. He requested to call is mom and a lawyer.

SHOULD EVIDENCE OBTAINED FROM THE PENILE SWAB BE EXCLUDED

[51]

Counsel for Amey submits that the swab of Amey’s penis violated his rights under section 7, 8 and 10(b) of the Charter and seeks to exclude the evidence resulting from the swab pursuant to section 24(2) of the Charter. The results of the swab showed that B.L.H.’s DNA could not be excluded as the source of the female DNA found on Amey’s penis.

[52]

As the search was a warrantless one, the onus is on the Crown to prove that it was not unreasonable. Searches incident to arrest are an exception to the general rule with respect to warrantless searches so long as the search is conducted for the purpose of seizing weapons or other evidence in the possession of Amey. In order to find that a search is in compliance with section 8 of the Charter it must be authorized by law, the law itself must be reasonable and the search must be conducted in a reasonable manner.

The Position of the Crown

[53]

The Crown’s position is that the search and seizure of the DNA were incident to arrest relating to the seizing of evidence of the offence of sexual assault. The search was lawful because of the exigent circumstances. The exigent circumstances were that the DNA evidence could have been washed away by Amey or Amey could have touched his penis with the blood on his hand and compromised the sample. Further, Amey spoke with counsel after being informed that the police intended to swab his penis. The search was performed in a reasonable manner with as much dignity and respect of his personal privacy as possible.

[54]

Amey was told about the swab before he spoke to counsel. He had been fully informed of the procedure. Duty counsel was called for him at 4:00 a.m. Any delay in speaking to counsel was of Amey’s own doing because he was trying to move his handcuffs from back to front and a cell change was therefore necessary (to ensure the DNA sample would not be compromised). The delay was necessary because of Amey’s own actions and the exigent circumstances related to the preservation of the DNA evidence.

Amey had privacy to speak to counsel. He did not express any dissatisfaction with the advice given. He was cautioned again before the swab took place. The police are not required to tell Amey that he should ask for advice on the swab from counsel. They need only inform him that the procedure will taking place.

The Position of the Defence

[55]

The defence argues that the search was warrantless and not authorized by law. Section 487.05 of the Criminal Code sets out a statutory procedure for seizing bodily samples. This procedure was not followed by the police in this case. A search incident to arrest does not include bodily seizures. In Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158 ( S.C.C.) the Court set out parameters for a search incident to arrest which did not include the removal of clothing and is non-intrusive. In R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607 (S.C.C.) the Court held that requiring an accused to provide hair, buccal swabs and dental impressions was not a search incident to arrest and that searches involving a person’s bodily integrity requires a higher level of justification (para. 47). The search was not authorized by law and its reasonableness need not be considered as it offends the principles of fundamental justice.

[56]

According to the defence Amey was forcibly stripped and required to comply with the demand for a sample while the police did not even attempt to obtain a warrant. Amey’s dignity and bodily integrity have been compromised.

[57]

Further, Amey was not afforded the opportunity to speak to counsel without delay. After reaching the detachment there was a delay of almost 43 minutes before duty counsel was called. As per R. v. Sinclair 2010 SCC 35, [2010] 2 S.C.R. 310 (SCC), Amey should have been given an additional opportunity to speak to counsel to determine whether or not he had an obligation to comply with the request in relation to the swab. In this case Amey had no obligation to comply according to the defence.

[58]

With respect to the Grant test the defence urges that the seriousness of the breach cannot be understated. It was a flagrant violation of Amey’s Charter rights in consideration of the failure of the police to obtain a warrant and a pattern of conduct by the police that demonstrated no consideration for the merits of obtaining the sample.

[59]

The impact on Amey was significant in that the taking of the sample was an affront to his dignity and privacy.

[60]

Finally, according to the defence the exclusion of this evidence will not prevent society from having the matter adjudicated on its merits as the trial may still proceed in the absence of the DNA evidence.

Ruling

[61]

I find that Amey’s Charter rights pursuant to section 7 and 8 were not breached.

[62]

In coming to this conclusion I find as follows:

(a) I find the Crown has proven that the search was reasonable, conducted in a reasonable manner and was incident to arrest in light of exigent circumstances.

(b) The search was conducted in a respectful manner. Amey’s clothes were not entirely removed (as in R. v. Pun 2012 ONSC 5305, [2012] O.J. No. 4418 O.J. No. 4418 (SCJ). Rather, his pants and underwear were pulled down only as needed to expose his penis for the taking of the sample.

(c) The taking of the sample was videotaped. It showed the police were respectful to Amey and conducted the swab in a respectful manner. No force or violence was used. His clothing was pushed down only as far as was necessary to conduct the swabbing. Handcuffing Amey’s hands behind his back was reasonable in the circumstances given the position that Constable Barnstaple would be in while taking the sample.

(d) The sample was taken by an experienced forensic identification officer. In R. v. Pun the search was conducted by an officer who had no experience in the area and who did not consult any other senior officers about proper procedure.

(e) The circumstances were exigent in that Amey could have washed off the DNA or touched it with his bloody hand thereby compromising or destroying the sample. This is different from the circumstances in Stillman where hair, buccal and dental impression samples were in issue. There was no concern that the integrity of those samples would be lost over time. Waiting two days for a warrant would not have made any difference with respect to that type of sample. However, in this case, Amey could not have been left handcuffed for 12 hours to two days and deprived of the opportunity to urinate or have access to water while a warrant was being obtained.

(f) Proper grounds were articulated for the search (unlike in Pun where no grounds were noted by the officer and were articulated only from memory at the hearing). Juneau had arrested Amey based on him matching the description of the male party by B.L.H. and her indication that he had “put his dick in her”. The officer had reason to believe that the accused’s penis had touched B.L.H..

(g) While this would be considered a strip search pursuant to R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679 it was very different from the search in Pun or the publicly humiliating search conducted in Golden. I find that in this case the police established reasonable and probable grounds for carrying out the search, the purpose of which was to obtain evidence related to the offence. The search was conducted in the manner contemplated by Golden for strip searches incident to arrest; that is, it was carried out in a manner that interfered with the privacy and dignity of Amey as little as possible. I therefore find that the “higher degree of justification” referred to in Golden (para 98) is met here and that the proper reasonable and probable grounds were established.

(h) It is of some significance that the samples sought were bodily fluids from the complainant and not Amey. It should not be ignored that the principles in Stillman related to the taking of bodily samples of the accused from his own body and the invasion of his bodily integrity on that basis. Overall, I find the circumstances of this case in relation to any violation of sections 7 and 8 to be in stark contrast to those in Pun. I find that the police were careful in articulating proper grounds for the search conducting it in a respectful and dignified manner without abuse or aggression and articulating the exigent circumstances. I find that the search was authorized by law and that it was incident to arrest given the exigent circumstances. It was conducted in a reasonable manner given the circumstances articulated above.

[64]

I find, however, that Amey’s 10(b) rights were breached for the following reasons:

a. There is no evidence that Amey actually talked to counsel. Juneau’s will-say indicated he called duty counsel for Amey at 4:00 a.m. Harker’s affidavit says he answered a call from duty counsel at 4:27 a.m. and put Amey in the private room at 4:31 a.m. By 4:36 a.m. Amey was causing a disturbance and yelling obscenities. Harker attended and told Amey to put the phone down. There was no evidence that Amey had actually finished his call or wished to talk further. Harker’s affidavit does not indicate that he picked up the phone to see if the duty counsel was still there or waiting to continue the conversation with Amey.

b. Amey could not recall speaking to a lawyer at all when he was interviewed the next morning at 11:12 a.m. by Detective Constable Falls. At that point when he was asked if he wanted to speak to a lawyer many hours later his request to do so was clear and unambiguous.

c. Barnstable and Juneau testified that they had heard from other officers that Amey had spoken to duty counsel however their enquiries and their evidence on this point seemed vague. They could not say what officers they had spoken to. Harker’s affidavit does not say that he confirmed with any other officer that Amey had spoken to counsel.

d. While Juneau testified that he told Amey that his penis would be swabbed for DNA evidence of the alleged victim was there is nothing in his notes to confirm this. When cross-examined on this point Juneau agreed there was nothing in his notes or willsay or affidavit that indicated that he had told Amey about the swabbing. He simply said he remembered doing it. I find that Detective Constable Juneau is an experienced and careful police officer. He makes scratch notes at the time of the incident and then converts these into neat, time delineated notes for court and other reference. Such an important omission in his notes is concerning.

e. It is notable that in R. v. Hodgson the accused was given the opportunity to call duty counsel after being informed about the swab and before being swabbed but declined to call duty counsel.

f. Even if there was definitive evidence that Amey had been told about the procedure in advance of the call and that he had spoken to the duty counsel, the police in my view should have ensured that Amey understood that he could speak to counsel about the intended swabbing. If he replied that he had not, he should have been given an opportunity to have another call. While I found the circumstances were exigent in terms of taking the sample, there is no evidence that another ten minutes could have been spared to ensure that Amey had received advice on all of the issues. I do not agree with the Crown that simply telling Amey about the procedure was enough. Juneau testified that the swabbing was a more invasive procedure than normal. Mason called it “a pretty severe intrusion on a human being.” Accordingly, the police should have gone beyond the “normal” procedure with respect to ensuring Amey was aware that he could obtain advice on the swabbing issue.

g. This was a “new” procedure as per R. v. Sinclair [2001] 2 S.C.R. 310. In Sinclair developments in the course of the investigation (in that case the accused implicating himself in a murder) required that a further call to counsel be made. An accused person must be able to determine whether or not to cooperate with police. Cooperation with respect to the matters relating to the actual charge (whether to give a statement, bail issues etcetera.) are very different in this Court’s view from cooperation with respect to the taking of a DNA sample from a genital area. While a second call may have been appropriate, at a minimum confirmation that Amey knew he could speak to his lawyer about the upcoming sample collection was also required in my view.

h. Amey was intoxicated and repeating himself. His behaviour ranged from being somewhat compliant to shouting obscenities at the officers. I find in these circumstances police had a heightened responsibility to ensure Amey had actually spoken to duty counsel as per his request and received advice.

[65]

With respect to the Grant analysis in relation to the 10(b) breach I find that the breach was serious as it offended the principles clearly set out in Sinclair. Its impact on Amey was also serious as there remains a concern as to whether Amey actually spoke to duty counsel and whether he was told about he swab prior to calling duty counsel. Barnstaple did not arrive at the station until after Amey had finished in the private duty counsel room. There is no evidence that Mason or Harker spoke to Amey about the swab. Juneau