2015 ONSC 2488
COURT FILE NO.: CR-14-10000056-0000
DATE: 2015/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Mahmood Ahmad, Russell Bullock, and Mohamed Taha
Accused
Michael MacDonald, for the Crown
John Collins and Joanna Collins for Mahmood Ahmad,
Benjamin Moss for Russell Bullock, and Ismar Horic for Mohammad Taha
HEARD: March 13 and 16, 2015
Sections 8 and 24(2) Charter of Rights Application
A.J. O’MARRA J.:
[1] The applicant, Russell Bullock seeks an order from the Court to exclude at trial forensic DNA evidence obtained through a bodily substances warrant executed on the applicant as a remedy under s.24(2) of the Charter of Rights and Freedoms as a result of a breach of his s.8 Charter right to be secure from unreasonable search and seizure. The applicant, in this instance, does not challenge the validity of the warrant, but claims a breach of his s.8 Charter Rights occurred during the execution of the warrant by failure of the police to follow a number of the conditions set out in the warrant.
[2] On March 19, 2013 during a home invasion robbery by three armed persons, the occupant Richard Kruk was shot as he attempted to escape. Shortly after the assailants fled the scene a motor vehicle believed used by the assailants was involved in a collision with a TTC bus, then abandoned nearby. Several occupants of the vehicle believed to have been involved in the robbery were seen to flee the vehicle and to discard clothing nearby. The articles of clothing seized by police were subsequently submitted to the Centre of Forensic Science to be tested for the presence of DNA. One of the items, a black jacket resulted in a DNA profile which when checked against the Convicted Offender Data Base returned a hit matching the applicant’s DNA.
The Warrant
[3] On August 26, 2014 the police obtained a warrant authorizing the taking of bodily substances for DNA analysis from the Applicant.
[4] Contained within the warrant were a number of terms and conditions the issuing justice considered advisable to ensure the taking of the samples would be reasonable in the circumstances. Items (i) through (v) have been paraphrased.
(i) The samples to be taken in a place of privacy not accessible to public view,
(ii) Steps to be taken to ensure the privacy of the subject is respected in a manner reasonable in the circumstances,
(iii) To detain the subject for a period no longer than is reasonable,
(iv) Collect the sample in accordance with the training and guidelines of the centre of Forensic Sciences,
(v) Audio-video tape record execution of the warrant.
[5] Item (vi) setting out additional conditions reads as follows:
That before executing the warrant Fathe Ahmed, Mahmood Ahmad, Mohamed Taha, Andrew Douglas and Russell Bullock shall be informed of the following:
a) The contents of this warrant;
b) His rights to counsel, and he will be afforded a reasonable opportunity to exercise that right;
c) That he is under no obligation to make a statement during the period of his detention;
d) The nature of the investigative procedure by means of which the samples are to be taken;
e) The purpose of taking the samples;
f) The possibility that the results of the forensic DNA analysis may be used in evidence;
g) The authority of the peace officer taking the samples or anyone under the direction of that peace officer to use as much force as is necessary for the purpose of executing this warrant;
h) That he shall be detained for the purpose of executing the warrant for a period no longer than is reasonably necessary in the circumstances; and
i) That the execution of this warrant shall be audio-video recorded by a member of the Toronto Police Service.
[6] The conditions reflect the informational obligation of the police to advise the subject of the warrant in the execution of the warrant as set out in s. 487.07 of the Criminal Code.
[7] The applicant contends that the officers in executing the warrant failed to inform him specifically of vi) a, c, e, f, g, and h of the conditions as set out above. Counsel for Mr. Bullock takes no issue with the validity of the warrant or with compliance terms (i) through (v) and (vi), b, d, and (i).
Evidence on the Voir Dire
[8] The execution of the warrant was audio/video recorded as required and entered as Exhibit A on the voir dire.
[9] Constable Raspberry of the Toronto Police Services 11 Division testified that he was tasked by an officer involved in the investigation, DC Shawn Strilec with delivering the DNA warrant to obtain bodily substance samples from Russell Bullock. It was to be executed by PC Roland MacLeod an OPP FIS police officer, at the Penetanguishene Detention Centre where the applicant was being detained.
[10] On September 8, 2014 he attended to the detention centre and met there with PC MacLeod of the OPP to attend on Russell Bullock to execute the warrant. He and Constable MacLeod attended to a room within the institution where they met Russell Bullock who was waiting seated at a table.
[11] The process, as required by the warrant was video-audio recorded. Constable Raspberry handed the warrant to Mr. Bullock and Constable MacLeod, an identification officer who was trained by the Centre of Forensic Science to take bodily substance samples obtained a blood sample. The involvement with Mr. Bullock took less than five minutes.
[12] The video recording tendered in evidence, Exhibit A, sets out the following: Mr. Bullock is ushered into the room where he takes a seat at the table. Within a few moments Constable Raspberry and MacLeod enter the interview room. After introductions the following exchange occurs:
00:34 RASPBRRY: I understand you have already spoken to your lawyer about this?
BULLOCK: Uh-hum.
00:39 RASPBERRY: Okay, so here’s a copy of the warrant, so basically it’s a warrant to take a blood sample...
00:45 BULLOCK: Okay.
RASPBERRY: …. for your DNA. You’ve already spoken to your lawyer, but you’ve obviously got the opportunity to speak to him again, if need be.
BULLOCK: Yeah (nods head).
RASPBERRY: But he understands what’s going on…
BULLOCK: Yeah, yeah (nods head).
RASPBERRY: …from what I’ve heard from the officer in charge.
RASPBERRY: Okay, it’s here, this is your copy you can have a look through it if you want, but that’s the crux of it there if you want to have a look. (The officer points to a portion of the warrant that’s in front of Bullock on the table.)
00:59 Bullock leans forward and puts his right hand on the warrant and looks at it moving his head back and forth.
RASPBERRY: We’ve got a forensic officer here from the OPP whose going to do the actual sample.
01:14 BULLOCK: Okay. (Bullock looks up from reading, sits back and holds out and turns over his right hand toward the OPP officer).
RASPBERRY: You’re ok?
BULLOCK: Yeah.
RASPBERRY: It’s all good?
BULLOCK Yeah.
[13] As Bullock holds out his hand for sampling the OPP officer commences to describe how the sample will be taken. He dons gloves, mask, and explains the use of the lancet which will cause a drop of blood to be taken from Bullock’s finger and placed on a sample card. At 03:35 Bullock asks Raspberry:
So, okay, I get to keep that copy, right, I get to keep a copy of the warrant?
RASPBERRY: I guess I can leave a copy with one of the guards, yeah, no problem.
[14] The taking of the sample was completed at 4:20 minutes. Once the police officers exited the room Mr. Bullock was escorted out by a correctional officer.
[15] Constable Raspberry indicated that his total involvement with Mr. Bullock was as captured on the video recording. In terms of Mr. Bullock’s request to have a copy of the warrant he could not recall if he left one at the detention centre or if one was to be faxed to his lawyer. Constable Raspberry confirmed that he had not read the warrant prior to its execution.
[16] Constable MacLeod testified that he was trained at the CFS to take bodily substance samples according to their guidelines. He confirmed his only involvement with Mr. Bullock was as depicted in the video recording of him taking a blood drop sample from his right index finger.
[17] In addition to the evidence of the officers and the video recording, the Crown and defence counsel agreed on the following statement of fact (Exhibit B):
That the officer in charge, DC Abramovitz, Badge No. 9539, asked counsel at the conclusion of the preliminary inquiry whether their clients would consent to provide DNA samples. Counsel for Mr. Bullock advised that his client would not and the constable indicated that a warrant would be sought.
On January 23, 2014 Assistant Crown Attorney M. Passari emailed all counsel indicating that the police were preparing DNA warrants and asking whether their clients would consent to provide samples. Counsel for Mr. Bullock again stated that his client would not consent.
The last communication counsel for Mr. Bullock had with anyone involved in the prosecution regarding the DNA warrant was during the judicial pre-trial before Mr. Justice Speyer on April 1, 2014 during which Mr. Passari indicated that DNA warrants were being prepared and that results would be expected within 60 days.
Counsel for Mr. Bullock had no communication with the police following the issuance of the warrant or prior to its execution.
Counsel for Mr. Bullock did not receive a copy of the warrant until February 19, 2015.
Position of the Parties
[18] The applicant contends that the officers who executed the warrant failed to inform the applicant specifically of vi) a) the content of the warrant; c) he was under no obligation to give a statement; e) the purpose of taking samples; f) the possibility the results may be used in evidence; g) the police are authorized to use as much force as necessary in taking the sample; and h) he shall be detained no longer than necessary to obtain the sample.
[19] Accordingly, the applicant argues that the police failed to execute the warrant in compliance with the terms imposed by the issuing justice. As a result the execution of the warrant was unreasonable and a violation of s.8 of the Charter of Rights and Freedoms. A breach in the context of taking bodily substance samples goes to the very heart of his right to privacy. The impact of admitting such evidence obtained by the police that failed to comply with judicially imposed conditions would bring the administration of justice into disrepute.
[20] In support the applicant relies principally on two cases from British Columbia: R. v. Van Osselaer, [1999] BCJ No. 3141 (BCSC) and R. v. Kyllo et al, [1999] BCJ No. 717 (BCSC).
[21] In R. v. Van Osselaer the Court was concerned, as in this matter, whether there was substantial compliance with the mandatory informational requirements of s.487.07 of the Criminal Code which directs that in the execution of a warrant, a peace officer shall inform the person of the contents of the warrant, the nature of the investigative procedures by means of which the samples are to be taken, the purpose of taking the samples, the authority of the officer to use as much force as is necessary for the purpose of taking the samples and the possibility the results of the DNA analysis may be used in evidence.
[22] In that case, the warrant had not been read to the accused and the officer did not discuss the purpose of obtaining the blood sample or the possibility that the results of the DNA analysis could be used in evidence. However, the accused was given an opportunity to read the warrant prior to its execution and after he then asked questions about the blood found at the scene of the crime. The court concluded from the exchange that the accused understood the purpose of the DNA analysis.
[23] While there has been substantial compliance because the accused had an opportunity to read the warrant, the Court was not satisfied the accused was informed of the possibility that the results could be used in evidence. The court declined to find the accused’s lawyer must have correctly advised him of that possibility. The court concluded that the blood sample, which is conscriptive evidence, was obtained in violation of the accused’s bodily integrity and his right to be protected against unreasonable search and seizure.
[24] Following R. v. Collins, [1987] 1 S.C.R. 265](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii84/1987canlii84.html), [1987] 1 S.C.R. 265 and R. v. Stillman, [1997] 1 S.C.R. 607](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii384/1997canlii384.html), [1997] 1 S.C.R. 607 on a s. 24 (2) analysis the court excluded the evidence on the basis that to allow conscripted evidence to be entered into evidence following an unreasonable search and seizure would affect trial fairness.
[25] In R. v. Kyllo Bennett J. in assessing two DNA warrants found that the first had been executed failing to comply with the informational components set out in s.487.07 as well as additional conditions added by the issuing judge. In the result the court concluded that the execution of the warrant was seriously flawed and that the accused’s s.8 Charter of Rights had been violated. Evidence was excluded pursuant to s. 24 (2).
[26] I note that in both cases, Van Osselaer and Kyllo it would appear that the specific statutory informational conditions were not enumerated in the warrants as in this case at item vi) a) to i).
[27] The Crown contends that the manner of execution of the warrant as revealed by the video recording was not unreasonable despite some inconsequential failures to explicitly comply with the conditions of the warrant.
[28] On entering the room Constable Raspberry confirmed with Mr. Bullock that he had already spoken to his lawyer to which, he received the affirmative response, “uh-hum”. Also, Constable Raspberry told Mr. Bullock that he had the right to speak to him again if he wanted to do so, to which Mr. Bullock said “yeah” and nodded in the affirmative.
[29] Right after having confirmed that Mr. Bullock had spoken to his lawyer, the officer told him that he had a warrant to take a blood sample for his DNA. Then, he placed the warrant before Mr. Bullock giving him the opportunity to look through it. In combination with the officer stating that it was a warrant to take a blood sample for your DNA, and confirming he had spoken to his lawyer, conditions (a) being informed of the contents of the warrant, (e) the purpose of taking the samples to obtain his DNA, and (f) that the results of the analysis might be used as evidence had been complied with.
[30] As to condition (c) that the applicant be informed he was under no obligation to make a statement, the officer having confirmed that Mr. Bullock had consulted with counsel implicitly confirmed that he had been informed he was under no obligation to make a statement. In any event, nothing was done to induce the applicant to give up his right to remain silent. Indeed, the only utterances provided by Mr. Bullock were “yeahs” and “okay” or “uh-hum” in response to specific questions regarding execution of the warrant.
[31] As to condition (g) that the applicant be informed of the officer’s authority to use force, if necessary, to obtain the sample, its omission was inconsequential given that the applicant was compliant, and willingly extended his hand for the purpose of having the sample taken. Moreover, the purpose of the condition is to inform the subject of the warrant of the lawful opportunity for the taking of a sample so that the subject will not unlawfully resist the execution to his own prejudice, which did not occur here.
[32] Condition (h), to inform the applicant he would be detained no longer than reasonably necessary for the purpose of executing the warrant was moot given he was already detained under other authority. The Crown submits that failure to specifically tell the applicant he would be kept in the room in the detention centre only as long as it took to take the sample in no way contributed to an unreasonable seizure from the applicant.
[33] The Crown in argument relies on several cases for the position that minor or technical defects in a warrant do not render the search and seizure unreasonable under s.8 of the Charter: R. v. Benz, [1986] O.J. No. 227, (OCA) and R. v. Harris, [1987] O.J. No. 394 (OCA)](https://www.canlii.org/en/on/onca/doc/1987/1987canlii181/1987canlii181.html), [1987] O.J. No. 394 (OCA) two cases which dealt with the validity in the manner of execution of search warrants, and an extradition case, which dealt with an overbroad search warrant as a basis for the court to issue a sending order, USA v. Price, 2007 ONCA 526, [2007] O.J. No. 2673). The Crown contends there was no significant or meaningful failure to execute the warrant according to its terms. At most the failures were minor in nature and as such the execution of a valid DNA warrant was not unreasonable.
[34] It is clear in the evidence that the specific informational conditions cited by the applicant were not explicitly reiterated by the police. As conceded by the Crown in submissions the police were careless in its administration. While several aspects of the information components can be inferred from what was said and done during the execution of the warranty and some that were omitted may be considered inconsequential in the circumstances, as argued by the Crown, such as informing the applicant that he would be detained only so long as necessary to obtain the sample and as much force as necessary could be used, the fact remains, beyond placing the warrant containing the information before the applicant that the police did not specifically deal with their statutory obligation to do so.
[35] Simply placing the warrant before the applicant was insufficient. I may consider the omissions minor, others inconsequential or even inferentially implicit in the circumstances, however, the police in failing to specifically comply with their statutory obligations under s. 487.07, reiterated in the warrant at paragraph vi) breached the applicant’s s. 8 Charter right in the execution of the warrant.
Section 24 (2) Analysis
[36] Having found that there is a violation of s. 8 the issue is whether the admission of the evidence, the DNA sample results would bring the administration of justice into disrepute contrary to s. 24(2) of the Charter.
[37] I start with the observation that the Supreme Court of Canada in R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32 revisited the Collins factors and Stillman and the characterization that all bodily evidence obtained in violation of a Charter right is conscriptive and would render the trial unfair if admitted.
[38] The court observed the admissibility of bodily samples should not depend solely on whether the evidence is conscriptive. The approach to admissibility of bodily evidence under s. 24(2) that asks whether the evidence was conscripted should be replaced by a flexible test based on all of the circumstances. The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter – infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter – protected interests of the accused (admission may send the message that individual rights account for little), and (3) society’s interest in the adjudication of the case on its merits.
[39] The court’s role on a s.24 (2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[40] The first inquiry is into the seriousness of the Charter infringing state conduct. This is a fact-specific consideration. This involves assessing the misconduct "along a continuum" as Doherty J.A. put it in R. v. Blake, (2009) ONCA 1 at para. 23. The graver the state’s misconduct the stronger the need to preserve the long term repute of the administration of justice by disassociating the court’s processes from that misconduct. At one end of the spectrum is "deliberate police conduct in violation of established Charter standards", which would support exclusion of the evidence. At the other end of the spectrum are "inadvertent or minor violations of the Charter".
[41] The more severe or deliberate the state conduct that led to the violation the greater the need for the courts to dissociate themselves from the conduct by exclusion.
[42] In this instance, I consider the violations to be of a minor nature having regard to the process which took place before and during the execution of the warrant. The warrant contained the information. There was no deliberate misconduct on the part of the state actors to not inform the applicant.
[43] The warrant was placed before him to read. The warrant on its face indicates in bold capital letters that it is a warrant authorizing the taking of bodily substances for forensic analysis. Again, in bold capital letters it sets out all of the charges; attempted murder, aggravated assault, armed robbery, and a number of firearm possessory offences. The officer told him it was to take a blood sample for his DNA. The applicant was given the opportunity to read the warrant. He confirmed to the officer he had spoken to his lawyer about the DNA warrant and he was told he could speak to him again if he wanted to do so. He was aware of what would happen as indicated by offering his hand and finger from which the blood sample would be taken, without being asked by the officers.
[44] In advance of the execution of the warrant the police and prosecution advised defence counsel that a warrant would be obtained when advised by counsel that the applicant would not consent. Here, the applicant affirmed that he had spoken with his lawyer about the warrant. Unlike the court in Van Osselaer, I am prepared to infer that the applicant knew the police were going to execute a DNA warrant for the purpose of obtaining evidence. He would have been aware it was for the purpose of obtaining DNA evidence which might be used in the prosecution against him, for which he was being held in detention.
[45] There was no willful disregard of the applicant’s s. 8 Charter right. A valid warrant was obtained and presented. The sample was taken respectfully and properly. The violation by failing to repeat the conditions set out in the warrant in these circumstances is not one that the court must dissociate itself from in order to maintain society’s confidence in the administration of justice.
[46] In terms of the seriousness of the breach on the applicant’s protected interests, the failure of the police to specifically repeat the conditions set out in the warrant, which was facially valid did not lead to the discovery of evidence or cause the applicant to self-incriminate. Although taking a sample of blood by pricking the subject’s finger is an intrusion of a person’s bodily integrity and privacy, the applicant was obligated to comply by the terms of the valid warrant to provide a bodily substance sample. The sample was taken in a private place, and in a manner and under conditions which respected his human dignity.
[47] The third line of inquiry is society’s interest in an adjudication of the case on its merits. The most important factors here are the reliability of the evidence and its importance to the prosecution's case and the risk of error inherent in depriving the trier of fact of the evidence. Where the evidence at issue is real evidence, this third line of inquiry "tends to weigh in favour of admission".
[48] Here, the DNA results are said to be part of the Crown’s case to connect the applicant to a jacket discarded by a suspect believed to have been involved in the shooting of Richard Kruk. The offences of attempted murder, aggravated assault, robbery and the use of firearms in a home invasion are serious, and ones for which offenders must be held accountable through successful prosecutions.
[49] The evidence of the DNA results is considered reliable evidence and important to the proper adjudication of the case. This is not a situation where the evidence was obtained as a result of a breach of the individual’s Charter right which would compromise the truth seeking function of the trial process.
[50] I appreciate that there is no over-arching rule as to how the balance is to be struck with respect to the seriousness of the breach, the impact on the accused’s Charter protected interests and society’s interests in the adjudication of the case on its merits. In this instance, in my view the seriousness of state misconduct at the minor end of the continuum of seriousness, the impact on the Charter protected interests of the accused and the reliability and relevance of the evidence to the truth seeking function of the trial process outweighs the seriousness of the Charter violation that occurred. In the balance, I am satisfied that the admission of the evidence would not bring the administration of justice into disrepute.
[51] In the result, the application to exclude the evidence is dismissed and the evidence is admitted.
A.J. O’Marra J.
Released: March 21, 2015
2015 ONSC 2488
COURT FILE NO.: CR-14-10000056-0000
DATE: 2015/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Mahmood Ahmad, Russell Bullock, and Mohamed Taha
Accused
Sections 8 and 24(2) Charter of Rights Applications
A.J. O’Marra J.
Released: March 21, 2015