CITATION: R. v. Mendonca, 2015 ONSC 495
COURT FILE NO.: 13-50000124-0000
DATE: 20150128
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENDONCA
Jill Cameron and David Tice, for the Crown
Susan Pennypacker and Matt Fisico, for Mr. Mendonca
HEARD: January 7th, 2015
M. Forestell J.
RULING ON APPLICATION TO EXCLUDE
DNA SAMPLE OF THE ACCUSED
I Overview
[1] Brian Mendonca is charged with the first degree murder of Khadeem Antoine.
[2] Following his arrest and incarceration on this charge, police obtained a warrant under section 487.05 of the Criminal Code, R.S.C., 1985, c. C-46 to take a sample of Mr. Mendonca’s bodily substances for DNA analysis.
[3] Counsel for Mr. Mendonca brings this application to exclude from evidence the sample taken from Mr. Mendonca on the grounds that the sample was obtained in a manner that infringed Mr. Mendonca’s right under s. 8 of the Charter to be free from unreasonable search and seizure.
[4] Counsel for Mr. Mendonca had requested standing to make submissions to the issuing justice prior to the issuance of the warrant. The issuing justice denied the request and proceeded ex parte. Counsel for Mr. Mendonca, in this application, argues that the procedure followed was unfair and a violation of Mr. Mendonca’s rights. She argues that the admission of the evidence would bring the administration of justice into disrepute.
II The Evidence on the Application
[5] The allegation against Mr. Mendonca is that he stabbed Mr. Antoine in the early morning hours of March 23, 2012. At the time, Mr. Mendonca was 18 years-old and Mr. Antoine was 19 years-old.
[6] The deceased, Khadeem Antoine, called 911 after he had been stabbed. In the call he names his “friend”, “Brian”, as his assailant. Other information obtained by the police in the investigation led to the police looking for a person nicknamed, “Crash”. Police databases connected the accused, Brian Mendonca, to the nickname “Crash”.
[7] Mr. Mendonca was arrested for the murder and a search warrant was obtained for his residence. The police located a number of items, including two pairs of running shoes and a ‘BB’ gun.
[8] Subsequent testing found blood on the muzzle, barrel and frame of the BB gun. DNA analysis resulted in the opinion of the analyst that the deceased could not be excluded as the source of the blood.
[9] A second DNA profile was obtained from the blood on the frame and the barrel of the gun. Another swab was taken from the grip of the gun and a DNA profile was obtained from this swab. The DNA profile from the grip of the gun was uploaded to the DNA databank for comparison. Mr. Mendonca, whose DNA profile was on the databank, could not be excluded as the source of the DNA on the grip of the gun.
[10] The police also seized a pair of shoes from the residence of Mr. Mendonca. A ‘wearer profile’ was developed from the shoes. The wearer profile from the shoes could not be excluded as the source of the DNA on the grip of the gun.
[11] Mr. Grill, counsel for Mr. Mendonca in 2013, was asked whether Mr. Mendonca would provide a sample of his DNA for comparison. By letter dated February 4, 2013, counsel indicated that his client would not provide a sample on consent. Counsel also indicated that if the police intended to seek a warrant for Mr. Mendonca’s DNA, the application should not be made ex parte.
[12] The police did seek a warrant for Mr. Mendonca’s DNA. Detective Constable Wootton swore an information to obtain a warrant for Mr. Mendonca’s DNA. Detective Constable Wootton attended at the office of Justice L. Budzinski to obtain the warrant. Assistant Crown Attorney Jill Cameron also attended. Crown counsel advised the justice that counsel for Mr. Mendonca had requested that the application not be heard ex parte. Justice Budzinki asked Crown counsel to advise Mr. Grill to outline in writing the reasons why he should be given standing on the application and to send those submissions to Justice Budzinski with a copy to Crown counsel.
[13] On March 6, 2014, Mr. Grill wrote to Justice Budzinski outlining the reasons for standing. The reasons state that there is jurisdiction for an inter partes hearing, that there is no danger of the evidence being destroyed and that such a procedure would ensure reasonableness and fairness.
[14] On March 21, 2014 Justice Budzinski wrote to Mr. Grill denying him leave to make submissions. Justice Budzinski relied on the presumption in the Criminal Code that applications for DNA warrants are to proceed in writing under Form 5.01. He also noted that the Crown was not being asked to make submissions. He stated that he was not persuaded that he needed to hear submissions from defence counsel.
[15] In his March 21, 2014 letter to Mr. Grill that was copied to the Crown, Justice Budzinski indicated that he would ask Crown counsel to provide notice to the defence upon the making of the application. He also indicated that he would ensure that defence counsel was notified once an order was made. He observed that counsel would be free to challenge the warrant.
[16] On April 2, 2014 Crown counsel notified Mr. Grill that an application had been made. On April 7, 2014 Crown counsel notified Mr. Grill that the warrant had been granted and that it would be executed on April 10, 2014.
[17] The warrant was executed on April 10, 2014. Prior to the taking of the DNA sample, Mr. Mendonca was given an opportunity to speak privately with his lawyer.
[18] The DNA taken from Mr. Mendonca was compared to the DNA on the BB gun. Mr. Mendonca could not be excluded as the source of the DNA on the frame, barrel and grip of the gun.
III The Issues
[19] The applicant seeks an order ruling that the DNA sample taken from Mr. Mendonca is inadmissible on the grounds that it was obtained in a manner that infringed Mr. Mendonca’s s. 8 rights. It is argued that Mr. Mendonca’s rights were infringed when he was denied the opportunity to be heard on the application for the warrant.
[20] The issues to be determined are whether the s. 8 rights of Mr. Mendonca were breached by the denial of the right to be heard on the application and, if there was breach, whether the evidence should be excluded under s. 24(2) of the Charter.
[21] For the reasons that follow, I have concluded that the blood sample is admissible. There was no breach of the s. 8 Charter rights of the applicant. Even if there had been a breach I would not have excluded the evidence under s. 24(2).
IV Analysis
[22] The warrant for the collection of bodily substances in this case was issued under the authority of s. 487.05 of the Criminal Code. Section 487.05 provides as follows:
487.05(1) A provincial court judge who on ex parte application made in Form 5.01 is satisfied by information on oath that there are reasonable grounds to believe
(a) that a designated offence has been committed,
(b) that a bodily substance has been found or obtained
(i) at the place where the offence was committed,
(ii) on or within the body of the victim of the offence,
(iii) on anything worn or carried by the victim at the time when the offence was committed, or
(iv) on or within the body of any person or thing or at any place associated with the commission of the offence,
(c) that a person was a party to the offence, and
(d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person
and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1).
(2) In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including
(a) the nature of the designated offence and the circumstances of its commission; and
(b) whether there is
(i) a peace officer who is able, by virtue of training or experience, to take samples of bodily substances from the person, by means of the investigative procedures described in subsection 487.06(1), or
(ii) another person who is able, by virtue of training or experience, to take, under the direction of a peace officer, samples of bodily substances from the person, by means of those investigative procedures.
(3) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.
[23] In R. v. S.F.[^1] the Court of Appeal for Ontario considered the ex parte nature of the procedure under s. 487.05. The Court said as follows:
¶39 …Both in this court and below, the Crown has stressed the requirement in the DNA regime for authorization by a provincial court judge. This judge is the repository of a discretion as to whether to issue the warrant or not, and if he or she is advised, as is proper on an ex parte application, that the suspect is in custody, the judge may well require that the suspect be served. The respondent seemed to think that because the legislation authorized an ex parte application, that this is the only way it could be granted. Clearly, the procedure is permissive.
¶40 It is important to remember that applications for search warrants and other judicial warrants traditionally have been heard ex parte to avoid not only the flight of the suspect but also the destruction of what is sought under the warrant. Even accepting that the destruction or alteration of DNA evidence is not a possibility, and that there may be cases where notice might be ordered by the issuing judge, these are not reasons for the court on a constitutional review to start rewriting customary procedures. One must keep in mind that these DNA warrants are an investigative tool. If their use is to be overly restricted by procedural impediments and interlocutory proceedings, the investigation may be frustrated. As Hill J. acknowledges, one of the important justifications for the legislation is that it can serve to protect the innocent. If the police are focussing on the wrong suspect, it is in everyone's interest that he or she is cleared and the search for the true perpetrator continue without delay. These are all considerations properly left to the issuing judge.
[24] The Supreme Court of Canada, in R. v. Rodgers[^2] upheld the constitutionality of s. 487.055 which provides for the issuance of a warrant for the taking of bodily substances from a person convicted of certain serious offences prior to the enactment of the DNA warrant provisions. The Court considered the ex parte nature of the proceedings and held that the ex parte procedure was not fundamentally unfair. The judgment of the majority also confirmed that there was discretion to give notice.
[25] The Court of Appeal in S.F. and the Supreme Court of Canada in Rodgers relied upon the procedural safeguards in the legislation in upholding the constitutionality of the sections. In Rodgers, Justice Charron wrote:
¶51 …The determinative question becomes whether, in all the circumstances, Parliament's choice of a presumptively ex parte hearing is fundamentally unfair. In my view, it is not. Keeping in mind that there is no constitutional guarantee to the most favourable procedure available, it is important to note that the chosen procedure in this case does provide the offender with the following safeguards:
(1) prior judicial authorization must be obtained on written application to a provincial court judge: s. 487.055(1);
(2) the applicant must establish that the targeted offender falls within one of the designated categories of offenders;
(3) the judge has the discretion to give notice to the offender affected by the application;
(4) the judge has the discretion not to order DNA sampling;
(5) in deciding whether to grant the authorization, the judge is statutorily required to ‘consider the person's criminal record, the nature of the offence and the circumstances surrounding its commission and the impact such an authorization would have on the privacy and security of the person’: s. 487.055(3.1);
(6) the judge may require conditions to ensure that ‘the taking of the samples ... is reasonable in the circumstances’: s. 487.06(2); and
(7) the police must report back in writing to the provincial court judge: s. 487.057(1)
¶52 Further, although there is no appeal from a s. 487.055 order, the decision of the judge is reviewable on certiorari. Without doubt, errors in the record can be made. However, giving the offender notice and an opportunity to be heard is not the only procedure by which any error could be corrected. It is not as if DNA samples can be taken surreptitiously without the knowledge of the targeted person. Before taking any samples, the person acting under the authority of a DNA warrant, order or authorization, has the duty to inform the subject, among other matters, of the contents of the authorizing document and the purpose of taking the samples: s. 487.07 of the Criminal Code. Hence, the offender will be apprised of the basis for obtaining the order. As the absence of a precondition to the making of the order would go to jurisdiction, any such error would be reviewable on certiorari.
¶53 …If a ‘hit’ is generated in the DNA data bank, and the offender's DNA is subsequently gathered by way of a DNA warrant, it will be open to the offender to challenge the admissibility of any DNA evidence at trial on the basis that he or she was illegally included in the data bank itself, if that be the case. Where the ‘hit’ constituted the basis of the DNA search warrant, illegal inclusion in the data bank itself may provide grounds for quashing the warrant. A warrantless search would thereafter be considered prima facie unreasonable and may provide ground for Charter relief at trial. The admissibility of the evidence will also remain subject to all the usual rules of evidence.
[26] In this case, Mr. Mendonca received notice that the warrant had issued. It was open to him to challenge the making of the order by way of certiorari. He did not do so.
[27] There is no suggestion in this application that the warrant was issued without the necessary grounds; there is no suggestion that any precondition for issuance was not met.
[28] Justice Budzinski had the discretion to hold an ex parte or inter partes hearing on the application. He acted within his jurisdiction in exercising his discretion not to hold an inter partes hearing. Before exercising that discretion, he gave Mr. Grill an opportunity to be heard. In all of the circumstances, there was no unfairness to Mr. Mendonca in the procedure followed by Justice Budzinski. There was no breach of Mr. Mendonca’s s. 8 rights.
[29] Even if I had found a breach, I would not have excluded the evidence under s. 24(2). The authorities acted in good faith at each stage of the proceedings, giving notice to counsel for Mr. Mendonca of the application for the order and of the issuance of the order. The evidence is important to the case and would inevitably have been gathered by the police. The breach (if I am wrong and there was a breach) was minimal and technical. On balance, the administration of justice would not be brought into disrepute by the admission of this evidence.
V Conclusion
[30] The application to exclude the DNA sample is dismissed. The evidence is admissible.
M. Forestell J.
Released: January 28, 2015
CITATION: R. v. Mendonca, 2015 ONSC 495
COURT FILE NO.: 13-50000124-0000
DATE: 20150128
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENDONCA
RULING ON ADMISSIBILITY OF
DNA SAMPLES OF THE ACCUSED
M. Forestell J.
Released: January 28, 2015
[^1]: 2000 5627 (ON CA), [2000] O.J. No. 60 (C.A.), paras. 39 and 40
[^2]: 2006 SCC 15, [2006] S.C.J. No. 15