COURT FILE NO.: CR-19-4707
DATE: 20201127
Decision delivered orally and in writing – November 27, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jitesh Bhogal
Applicant
Kimberley M. Bertholet and Ilana L. Mizel, for the Crown
Peter Thorning and Maureen Salama, for the Applicant
HEARD: November 9, 10, 11, 12, 13, 16, 17 and 18, 2020
RULING ON exclusion of evidence
Pomerance J.:
[1] Jitesh Bhogal is charged with first degree murder. It is alleged that he broke into the home of A.T., sexually assaulted her, and killed her. The cause of death was neck compression and suffocation. Several injuries were detected on the body of the deceased, including injuries to the wrist suggestive of binding and anogenital injuries. She suffered blunt force trauma to her head and multiple bruises to her face and extremities. The accused cannot be excluded as the donor of DNA found on the deceased’s right breast. A trace sample of DNA from another individual was found on the deceased’s breast. The trace sample is too small to permit extraction of a DNA profile, or even identification of the gender of the person who deposited it.
[2] The accused has brought several pre-trial applications, including an application to exclude the evidence of his DNA profile from the trial. The profile was extracted from a sample taken from the accused under a DNA warrant. The defence argues that the information to obtain the warrant (ITO) was based on unlawfully obtained information. It is said that, once the unlawfully obtained information is excised from the warrant, the remaining grounds are insufficient to support issuance of the order. Therefore, the warrant is invalid and the taking of DNA from the accused was a warrantless seizure. The defence argues that the evidence should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
[3] The Crown resists the application, arguing that the information in the ITO was not unlawfully obtained. In the alternative, the Crown argues that the evidence should be admitted under s. 24(2).
[4] The investigation in this case has a cross-border character. The Windsor police engaged the services of Homeland Security Investigations (HSI) to assist in their investigation. Those officers seized a cast-off sample of DNA from the accused from a bar in Michigan. In addition, one of the Canadian officers obtained information directly from an American bank. The analysis, therefore, engages a mix of Canadian law, American law, and the principles governing extra-territorial searches: see R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292. The ultimate question of admissibility is governed by the Charter. The evidence to be tendered at trial was obtained under the authority of the DNA warrant – a Canadian order executed in Canada.
[5] The central issues to be determined are:
a. Did police act unlawfully in obtaining information from the Bank of America identifying the accused?
b. Did police act unlawfully in requesting and obtaining a cast-off DNA sample from the accused, seized by HSI officers who took a drinking glass used by the accused at a bar?
c. If a. and/or b. was unlawfully obtained, must the information be automatically excised from the warrant?
d. If the information is excised and the warrant is invalid, should the evidence be excluded under s. 24(2) of the Charter?
[6] The following will set out the background and chronology of events relevant to the issues.
EVIDENCE
STATEMENTS FROM NEIGHBOURS
[7] The body of A.T. was discovered on June 10, 2018. On June 13, 2018, police spoke with two persons who were squatting in a neighbourhood building. These individuals told police that they were with an unknown male named “Jay” on the evening of June 9, 2018, who wanted to buy cocaine and hire a commercial sex trade worker. They went with the male to a TD Canada bank machine where he withdrew money. After purchasing drugs from their dealer, they returned with the male to the parking lot adjacent to their rooming house. They used some cocaine with the male, but then stole the rest of the drugs and fled. The male was angry and remained in the neighbourhood, yelling. Early the next morning, “Jay’s” vehicle was still parked in the lot.
[8] A.T.’s son was in the residence at the time of the homicide. He told police that an unknown male was in the apartment that night. The unknown male is believed to be the perpetrator of the homicide.
PRODUCTION ORDER: TD BANK
[9] Armed with the information from the neighbours, Sgt. Amlin obtained a production order for the TD bank machine allegedly used by “Jay” on the night of the homicide. Information produced under the order revealed that the transaction occurred at approximately 3:00 a.m. and that the individual used a Bank of America card. The number of the card was identified, but no name was associated with it. Video surveillance and still photographs were produced by TD bank, depicting the person at the instant teller machine. The officers had the number of the card and a photograph of the person who used it, but they did not have any information about the identity of the card holder.
TAYLOR REACHES OUT TO HSI
[10] Sgt. Jeff Taylor, (“Taylor”) was one of the officers on the police team. On June 18, 2018, Taylor reached out to an American HSI officer that he knew from prior cases, Ronald Marcell, (“Marcell”). A series of email communications followed. Marcell obtained some information about border crossings on William Knetchell, a man who had contacted the police about A.T. On June 18, 2018, at 1:59 p.m., Taylor sent a message to Marcell about the Bank of America card:
Ron,
We have a person of interest in our homicide that we are trying to identify. He was captured on an ATM camera using a Bank of America debit card with number 549170004533972. Is there any information you can glean from that that may help us identify him? I hate to keep coming to the well for stuff, but we are grasping at straws at this point.
Any information or direction on how to properly obtain his information would be greatly appreciated.
[11] He did not receive an email response. At 2:36 p.m., Taylor sent the following message to Marcell, advising that the police had obtained the name of the person holding the bank card:
Ron,
We spoke to Bank of America and they were able to tell us this person’s surname is BHOGAL from Canton, MI (Party number: 10009040531). Is that enough information to get border crossing data?
AMLIN REACHES OUT TO BANK OF AMERICA
[12] Amlin was the officer who obtained the name of the card holder. According to Amlin, he did a Google search to find the telephone number for the bank. Having phoned the general number, he was eventually transferred to the security section, where he spoke to Brenda Folkes.
[13] The precise details of that conversation are not clear. Amlin’s recollection was sparse, and he took only a few notes of what was said. What we do know is that Ms. Folkes provided the following information to Amlin, in the absence of any subpoena, warrant, or other authorization:
a. The bank card was issued to a customer with the surname “Bhogal”;
b. The person had been a customer since 2015, with an address in Canton, Michigan;
c. The party identification number for banking activities of Bhogal. This number could be used to access banking records, if a court order was properly issued.
[14] Amlin testified that he did not know how to deal with banks in the United States. According to him, he phoned the bank to find out how he could lawfully obtain the information. However, he also testified that he wanted to see if the bank would just give him the information. According to him, if the bank was willing to provide the information without an authorization, he did not need an authorization. If the bank was not willing to provide the information without an authorization, that would mean that an authorization was required.
[15] Excerpts from his testimony include the following:
Q. All right, and can you tell us everything that you recall from that conversation?
A. Yes, I recall explaining to her who I was and who I worked for. I told her that I work for the Windsor Police Service and we were actively engaged in a homicide investigation and that I was looking for some information regarding a card number that had been used to conduct a transaction in Windsor, Ontario.
Q. All right, and what, if anything – if you could indicate what she responded and what you said next?
A. Yeah. So, I provided her with the card number that was used.
Q. All right.
A. Their – and then she noted that in the number that I provided there had been a zero missing, which she felt fairly certain came – there’s a series of – there’s four zeros in the middle of the credit card, she was fairly certain a zero was missing from that series of four.
Q. Okay.
A. And then she provided me information regarding the limited information regarding the account holder of that card.
Q. Did you turn your mind to determining whether the step you were about to take was lawful step?
A. I though the step of calling Bank of America was a reasonable and a prudent one in the circumstances. I thought that the Bank of America, better than anybody, would be able to explain what information they were able to provide me or how about – how to go about getting the information were they not able to tell me anything.
Q. Again, you just leave it up to the banks to make their determination as to whether or not the information that you’re seeking is legal – lawfully obtained?
A. Well, in my experience the banks have a very firm grasp on that and their – they have no issue telling officers that an order is required if it’s required.
Q. But, as I’m saying, you leave it up to the bank?
A. Yes.
Q. You didn’t, you didn’t just, you didn’t just ask them what information that they would be prepared to provide. You asked them for the information itself.
A. I asked Ms. Folks what information, if any, she was able to provide me about the person that held that account or card.
Q. That’s what I’m saying. You asked her for information.
A. Yes.
Q. You didn’t just simply ask her about the process by which information is lawfully obtained.
A. Yes, that question formed part of that conversation.
Q. And – so, you didn’t just ask about a method, you asked about particular information. You asked for the information that you received.
A. Yes.
Q. So, it wasn’t just a method that you were requesting from her, it was the information itself, right?
[16] Amlin testified that he decided to reach out to Bank of America on his own. He was working in a room with other members of the team, but he could not recall who was present when he made the call. Ms. Folkes was contacted by Windsor Police in September 2020. She advised that she had no recollection of the conversations with officer Amlin in 2018, that she lived in the United States, and that she did not wish to testify – in person or remotely – at these proceedings.
[17] After the conversation with Folkes, Amlin sent an email to Curtis Edge at the Bank of America seeking additional information, including transaction records from Bhogal’s accounts. Curtis Edge advised Amlin that he could not release any customer profiles or transactions unless a subpoena was first obtained. Amlin did not pursue a subpoena as he had already received the information that he needed: the name of the person attaching to the bank card.
SUBSEQUENT STEPS
[18] Once the police learned the name of the Bank of America card holder and that he had opened the account in Canton, Michigan, they were able to actively gather more information about the accused.
[19] Searches of social media and other “open sources” yielded new details, including the first name, Jitesh. This was consistent with the witnesses’ assertions that the man they were with was named “Jay”. Marcell provided information about the border crossings of Jitesh Bhogal, such as his last border crossing into Canada and photographs taken at the border. On June 19th, Windsor officers learned that the accused had two vehicles registered in his name and the address connected to the licence plates in Michigan. Canadian officers shared the fruits of those searches with HSI officers. As of June 27, 2018, police knew where the accused worked and lived and where his parents resided. Other investigative steps were taken, such as a subpoena, for live cell site and GPS data from T-Mobile.
THE CAST-OFF SAMPLE
[20] A skin swab of A.T.’s right breast was submitted to the Centre of Forensic Sciences (CFS). Jennifer McLean conducted forensic DNA analysis on the swab and concluded that the swab consisted of a mixture of DNA from two individuals: A.T. and one male contributor.
[21] On June 22, 2018, during a teleconference, Windsor police asked HSI officers if they would be able to obtain a cast-off DNA sample from the accused. A formal email request was sent after the teleconference meeting.
[22] On July 5, 2018, members of HSI in Seattle began surveillance of the accused. Officers learned that the accused had applied for a Washington State driver’s licence and that he told the clerk that he was relocating to the state of Washington. Cell site and GPS data told the officers where the accused was on several occasions and this facilitated ongoing surveillance. A tracking warrant placed on the accused’s vehicle on July 20, 2018 offered further data on his whereabouts.
[23] On July 26, 2018, HSI officers seized a cast-off sample of DNA from the accused. The details of the seizure were set out in a Homeland Security Report of Investigation, which was admitted as part of an agreed statement of facts on the motion. This report includes the following:
At approximately 4:50 pm, SA MacQuarrie entered the Kuhnhenn Brewery and observed BHOGAL sitting at a table with three other individuals. SA MacQuarrie took a position of surveillance approximately 40 feet across from BHOGAL at a table. SA Keen entered the establishment at approximately 5:00 pm and sat at the same table. Agents had an unobstructed view of BHOGAL.
Agents observed a server deliver a goblet style glass of beer to BHOGAL. Agents continued surveillance on BHOGAL and observed BHOGAL drink from the glass approximately 8-12 times. Agents confirmed that the glass was directly in front of him and the only style glass at the table.
At approximately 5:30 pm, agents observed BHOGAL and members of his party present credit cards to the server and complete the credit card transaction with her. BHOGAL proceeded to finish his drink and set it in front of him on the table.
At approximately 5:38 pm, agents observed BHOGAL and the individuals with him stand up and walk towards the east door and exit. SA Keen walked directly to the table and secured the glass from the bottom that BHOGAL had used. SA Keen secured the glass in his vehicle and locked it.
Agents waited approximately 10 minutes and departed the Kuhnhenn Brewery. SA Keen turned the glass over to SA MacQuarrie. The glass contained a small amount of liquid in the bottom. SA MacQuarrie secured the glass in an upright position and left it uncovered. SA MacQuarrie later transported the glass to the Homeland Security Investigations (HSI) Detroit Office. SA MacQuarrie observed the contents of the glass had dried overnight and placed the glass into a brown paper HSI evidence bag. The bag was sealed with a HSI evidence sticker, marked by SA MacQuarrie.
On July 27, 2018 at approximately 10:54 am, Windsor, CA Constable Heath Thompson met with SA MacQuarrie at the HSI Detroit Office. Agents secured the evidence bag containing the glass inside a HSI evidence box for transportation. Constable Thompson signed the DHS 6051S Evidence receipt and took custody of the glass.
On July 30, 2018, SA MacQuarrie spoke with Bret Kuhnhenn by phone (586) 480-4611. Kuhnhenn identified himself as the owner of Kuhnhenn Brewing. SA MacQuarrie advised Kuhnhenn of a confidential investigation that resulted in the seizure of a beer glass from his business. SA MacQuarrie explained the reason for the delayed notice and that the Department of Homeland Security would provide a receipt and payment for the evidence. Kuhnhenn stated to SA MacQuarrie that none of the above would be necessary. Kuhnhenn stated he was not worried about receiving the glass back and or any type of monetary reimbursement. Kuhnhenn explained that his business would be happy to assist DHS with any additional investigative follow-up.
HSI Detroit investigation continues.
[24] The glass was transported to Windsor police by Sgt. Heath Thompson, who was working with Border Enforcement (BEST) at that time. The item was sent to the Centre of Forensic Sciences where it was analyzed by Jennifer McLean. She concluded that the donor of the DNA on the beer glass could not be excluded as a contributor to the mixture of DNA located on the deceased’s right breast at the autopsy.
[25] HSI obtained a warrant for the arrest of the accused on August 16, 2018. That warrant was executed on August 17, 2018. The accused waived his right to an extradition hearing. He was returned to Canada and was formally arrested and charged by Windsor police on September 9, 2018.
THE DNA WARRANT
[26] A DNA warrant was obtained on April 27, 2019 and was executed on May 9, 2019. As with the cast-off sample, the donor of the known sample taken from Bhogal cannot be excluded as the donor of the male DNA sample taken from the deceased’s right breast.
[27] The ITO for the DNA warrant was based on the information obtained from the Bank of America and the forensic DNA analysis of the cast-off sample seized from the Michigan bar. If the information obtained from these procedures is excised from the ITO, there are no remaining grounds that could justify issuance of the order.
SHARING OF THE DNA PROFILE
[28] After the DNA profile was extracted from the cast-off sample, police had some discussion about whether the profile could be shared with HSI officers. It is not clear just how the discussion came about, or precisely what HSI officers wished to do with the sample, though it would appear that they were thinking of running it through their own database of DNA profiles.
[29] The request was initially made of Taylor, who passed the request on to Sgt. Khristi Hamelin, who then passed it on to the CFS. No one really knew whether the DNA profile could be shared or not. Hamelin testified that she did not know whether such sharing could occur, so she left the decision to the CFS. McLean, of the CFS, said that she did not know whether such sharing could occur, so she left the decision to the Windsor police. McLean testified that, because the evidence was the property of the Windsor police, she believed that the DNA profile was also the property of Windsor police, for them to do with what they chose.
[30] In response to the request, Ms. McLean wrote a “letter of release” to Windsor police, which contained the following information:
a. The male DNA profile – with DNA typing results identified at each of 15 STR loci - extracted from the sample on A.T.’s breast; and
b. The fact that “the major DNA profile developed from the discarded goblet-style glass (CFS item 34-1) reportedly from Mr. Jitesh Bogal (sic) could not be excluded as the source of this male DNA component (see my report dated August 3, 2018)”.
[31] The effect of this letter was to identify a specific genetic profile that the accused could not be excluded from. This was an unusual step, as reports from the CFS do not typically set out the identifying features of DNA profiles.
[32] According to an agreed statement of facts, the letter was not added to the Windsor police case file, it was not disclosed and, indeed, was not known to exist by either Crown or defence until September 2020. The letter was never distributed to the HSI or any other agencies.
ISSUES
[33] For ease of reference, I will repeat the central issues on this application:
a. Did police act unlawfully in obtaining information from the Bank of America identifying the accused?
b. Did police act unlawfully in requesting and obtaining a cast-off DNA sample from the accused, seized by HSI officers who took a drinking glass used by the accused at a bar?
c. If a. and/or b. was unlawfully obtained, must the information be automatically excised from the warrant?
d. If the information is excised and the warrant is invalid, should the evidence be excluded under s. 24(2) of the Charter?
ANALYTICAL FRAMEWORK
[34] As noted above, this case has extra-territorial features. Some of the searches were carried out in the United States; some in Canada. Canadian law – including the Canadian Charter – does not apply to the collection of foreign evidence, unless the foreign power consents to the application of Canadian law, or the manner of collection is contrary to Canada’s international obligations. If the Charter does not apply, s. 24(2) is not engaged. Instead, the court is to determine whether the admission of the evidence at trial would render the trial unfair. One factor to be considered is whether the investigative steps were lawful according to the laws of the foreign jurisdiction: see Hape.
[35] Hape and related cases: see R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, and R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 S.C.R. 597 involved situations where the evidence obtained in a foreign jurisdiction was, itself, proffered as evidence at a Canadian trial. That is not the case here. The evidence obtained in the United States is not being tendered at trial. Rather, it forms part of the ITO used to obtain the DNA warrant. The fruits of the warrant are the evidence to be introduced at the trial. How does Hape apply where the evidence from the foreign jurisdiction is part of the investigative chronology, but is not the evidence to be introduced at trial? How does the lawfulness of the activity impact on the validity of the ITO and resulting warrant?
[36] This issue merges with the question of excision from the ITO. The defence says that if the evidence was collected unlawfully, it must be automatically excised from the ITO. The defence contends that both the banking information and the cast-off sample were obtained unlawfully. The Crown argues that there was no unlawful activity in the collection of evidence in the United States. The Crown argues, in the alternative, that excision from the ITO should not be automatic.
[37] I will deal with the issue of excision in due course. For now, it suffices to note that the evidence sought to be admitted at the trial was sought in Canada, seized in Canada, and forensically examined in Canada. Therefore, in the event of a Charter breach, the admissibility of that evidence falls to be determined under s. 24(2) of the Charter. The application of Hape and related case law dealing with extraterritorial searches governs assessment of the validity of the ITO.
SEIZURE OF BANK INFORMATION
[38] The first issue concerns the seizure of identifying information by Amlin from the Bank of America. This was a critical step in the investigation. Canadian officers had learned, from witness statements, that a person of interest had used a TD bank machine. They had learned, through execution of a production order, that the person used a particular Bank of America card. They had learned, through the production of photographs, what that person looked like. However, without a name, or other identifying information, there was little that they could do to further the investigation. They had no way of knowing who the person was and where he might be. Once the name and location were obtained from the bank, investigative options expanded. Open source searches yielded additional information, surveillance was established, and court orders were obtained for tracking and examination of the accused’s work phone and computer. None of that could have happened unless, and until, police learned the identity of the man at the bank machine.
[39] In challenging the seizure of information from Bank of America, the defence raises questions about the factual record, arguing that critical pieces are missing from the chronology. For one thing, it is said that there is an unexplained gap in communication between Taylor and Marcell at a critical time.
[40] On June 19, 2018, at 13:59, Taylor sent an email asking Marcell about how to get information from the bank. Marcell did not respond before Taylor sent the next message, at 14:36, advising that “we spoke to Bank of America and they were able tell us this person’s surname…”. The defence questions whether Taylor and Marcell might have had communications between these two messages that were not recorded. The defence points to the evidence of other email communications between Taylor and Marcell. In most instances, Marcell responded to Taylor within moments. On the crucial question of banking information, there is a 36-minute gap. Marcell did not need time to think about Taylor’s question. He testified that he knew instantly that the bank would require a subpoena before releasing the name of the bank card holder. Why, then, did he take so long to respond?
[41] Was there some other form of communication between Taylor and Marcell, not recorded, and not mentioned in the evidence? Did Marcell telephone Taylor and suggest that he just call up the bank for the information? I have concluded that, on the current record, this suggestion is too speculative to ground an inference of wrongdoing. Marcell did not remember why his response was delayed, but he pointed out that he might have been busy with another matter at that particular time. Amlin testified that he decided to call the bank on his own initiative, without speaking to anyone first. There are gaps in police notes and memories, but I am not inclined to draw a sinister inference from the mere passage of time between messages.
[42] I am, however, prepared to find that Amlin acted unlawfully in calling the bank to obtain the information. According to American law, the bank required some form of authorization – a subpoena – before it could lawfully release customer information. This was the opinion of Marcell. It was the opinion of Curtis Edge of the Bank of America. It is the law as set out in the Right to Financial Privacy Act, 12 USC § 3401-3402.
[43] Neither Crown nor defence led evidence of the contractual terms of agreement between Bank of America and its customers.
[44] The Crown argues that Amlin did not call the bank to obtain the information, but rather, called up to find out how he could lawfully obtain it. On that approach, Amlin did not set out to get the information without authorization. He was looking for guidance on what he needed to do to lawfully secure the data.
[45] This interpretation is belied by the testimony of Amlin himself. His testimony makes clear that he was hoping that the bank would simply give him the information. Amlin left the issues of lawfulness up to the bank. He testified that, if the bank was willing to give him the information without authorization, then no authorization was required. If the bank would not give him the information, then an authorization was required. The question of whether it was lawful was, in his mind, determined by the bank employee. Indeed, in his first description of the conversation, he testified that he told Folkes that he was investigating a homicide and that he was “looking for some information regarding a card number”. After correcting the card number, Folkes gave him the information. It would seem that Amlin was prepared to ask how to obtain the information, but only if it was not voluntarily offered by the bank employee.
[46] This approach vests the decision-making authority in the wrong person. Police do not rely on civilians to tell them whether they require an authorization. Nor is police entitlement to information defined by the willingness of a civilian to provide it. This is particular so when the civilian custodian is employed by an agency – such as a bank –bound by a duty to protect customer privacy. The police did not know how to obtain banking records in the United States, but it was incumbent upon the police to find out by securing competent legal advice. The question could not be delegated to a bank employee, nor answered by her willingness to share.
[47] In other words, where there is investigative uncertainty, the solution is not for the police to see how far they can go without authorization. Amlin had many years of experience in the Fraud unit, where he routinely sought information from banking institutions. He knew that the type of information he was seeking from Bank of America would require a production order in Canada. This should have flagged the likelihood that a similar rule applied in the United States.
[48] The defence pointed to the paucity of the record in suggesting that Amlin might have pressured Folkes to release the information. I agree that it is unclear whether Amlin referred to the holder of the bank card as a person of interest or a suspect. He told the bank employee that he was investigating a homicide, though it is not clear whether he shared any details of the killing. Whether this constituted “pressure”, or merely a statement of fact, it is conceivable that, presented with this information, Folkes might have felt a civic obligation to assist police with investigation of a violent crime. There is nothing to indicate that Folkes cited authority for giving the information to Amlin. She directed him to contact Curtis Edge if he wanted further information about the account.
[49] The Crown has argued that the information seized from the bank did not meaningfully engage privacy concerns. It did not impinge on the biographical core that is protected by s. 8 of the Charter. The information extended only minimally beyond the name of the account holder. This is not a case where a bank offered up information about account activity. The Crown relies on various cases such as R. v. Lillico (1994), 1994 CanLII 7548 (ON SC), 92 C.C.C. (3d) 90 (Ont. Gen. Div.) and R. v. Quinn, 2006 BCCA 255, 209 C.C.C. (3d) 278.
[50] These cases do not apply to a search conducted of an American bank. It is American law, not Canadian law, that governs lawfulness. The Crown did not provide any authorities to suggest that, under the Fourth Amendment, the acquisition of the Bank of America information was not a search.
[51] That said, while the information came from a bank in the United States, there is a Canadian dimension to this search. The information from the bank identified the person who stood in front of an instant teller machine in Canada. To that extent, the search impinged on privacy interests in both the United States and Canada. Therefore, I will also address the Bank of America search from the perspective of Canadian Charter law.
[52] The information from the bank consisted of the accused’s last name, the fact that his account was opened in Canton, Michigan, and other data that was not of any investigative value. A person’s privacy interest in a name is arguably less than a privacy interest in account activity. However, a name is not always just a name. A functional and purposive approach must be taken to the determination of the subject matter of the search, and whether it attracts a reasonable expectation of privacy. The court must ask what inferences could be drawn from the information. The court must ask: “what were the police really after?”. In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, Internet Service Provider (ISP) subscriber information was not just a name. It revealed the identity of a person who used a computer that accessed child pornography. In this case, the police were looking for the identify of a person who used a particular bank machine on the night that A.T. was murdered. As it was put by Cromwell J. in Spencer, at para. 66:
In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.
[53] Consumers reasonably expect that banks will not disclose a customer’s transactions to others, without proper authorization. In some cases, police might call a bank to confirm that they have records pertaining to a particular person or corporation. This is sometimes necessary in order to obtain a production order. The police must be able to establish that the institution possesses the records of interest. In that instance, the bank is merely confirming that a particular individual or agency banks at the institution. This is akin to asking whether a person is a patient at a hospital. In R. v. Dersch, 1993 CanLII 32 (SCC), [1993] 3 S.C.R. 768 it was held that such inquiry, without more, did not engage s. 8 of the Charter.
[54] This case is very different. The police did not contact Bank of America to find out if the accused banks there. The police contacted Bank of America to determine who, within the population of the world, or, at least their customer base, carried out a particular transaction. The bank machine did not require that a user identify himself by name. The effect of the inquiry was to remove the anonymity that the accused could otherwise claim the benefit of. The linking of the transaction to a name pierces the biographical core that defines the ambit of s. 8 of the Charter.
[55] In Spencer, Cromwell J. recognized that the right to privacy includes the right to anonymity – the right to merge into the situational landscape. Just as Mr. Spencer had an interest in maintaining anonymity on the internet, Mr. Bhogal had an interest in maintaining anonymity when he used the bank machine in Canada. This is a reduced expectation, given the presence of cameras and the expectation by those who use such machines that they will be captured on video. Nonetheless, citizens reasonably expect that a bank will not attach their name to a transaction unless presented with some form of judicial authorization.
[56] I note the case of R. v. Eddy, [1994] N.J. No. 142, in which police sought to link a known individual to a bank book found in a vehicle that also contained a kilogram of hashish. In concluding that the accused had a reasonable expectation of privacy (REP) in the information provided to the police by the bank manager, Puddester J. said the following, at para. 175:
It is one thing to have an unidentified bank book containing records of deposits and withdrawals and revealing financial information, when it is not linked to a name. The linkage of a name to that information creates at once the intimate relationship between that information and the particular individual, which is the essence of the privacy interest.
[57] More recently, in R. v. Merritt, 2017 ONSC 366, at para. 158, Dawson J. linked the analysis in Eddy to the Spencer decision:
These observations by Puddester J. made in 1994 are remarkably similar to those made by Cromwell J. in Spencer in 2014. They illustrate an application of the anonymity interest in relation to informational privacy. In Spencer and in Eddy the police already had a considerable amount of information that was revealing of the intimate details of someone’s lifestyle and personal choices. When the police obtained the subscriber information in Spencer and the account holder information in Eddy, those intimate details became linked to internet users at a specific address in Spencer or to a specific individual in Eddy. I have already found that nothing similar occurred in this case.
[58] It is open to inference that police were operating under some exigency in the weeks following the homicide. One can imagine time was of the essence. However, none of the officers testified that they were acting on the basis of exigency. None of the officers referred to temporal urgency in describing their actions as it related to the bank. Therefore, while it would have been objectively open to the officers to consider exigency in requesting the reason for information from the bank, this was not the subjective basis for Amlin’s decision. Police can only rely on a lawful authority if they subjectively considered it at the time of the search: see R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51. In any event, it is not clear that the time required to obtain a subpoena would have resulted in a significant delay, given that most of the grounds had already been articulated in the TD production order.
SEIZURE OF CAST-OFF DNA
Was it a theft?
[59] HSI conducted wide-ranging surveillance of the accused for some time, tracking his movements from Seattle back to Michigan. On July 26, 2018, American agents surveilled the accused as he drank a glass of beer at a bar and seized the glass as soon as the accused left the establishment. The officers did not speak to the bar owners that day, but four days later, an agent contacted the bar owner to advise that a confidential investigation has led to the seizure of a bar glass from his business. The bar owner was advised that the Department of Homeland Security would pay for the evidence, and the bar owner advised that it would not be necessary.
[60] The defence argues that the seizure of the beer glass was a theft and, therefore, unlawful. On this basis, it is said that the cast-off sample must be excised from the ITO for the DNA warrant.
[61] The seizure of the glass took place in the United States; therefore, the lawfulness of the seizure is governed by the law of the United States. On the other hand, the DNA profile was extracted in Canada, for purposes of admission at a Canadian trial. The privacy interest in the sample – and resulting DNA profile – is governed by Canadian law.
[62] On the issue of standing, the accused cannot claim to be a victim of theft, though the accused holds the privacy interest in the biological sample. It is said by the defence that the accused does have standing to assert that the taking of the glass was a theft. Mr. Thorning, counsel for the applicant, argues that, if the evidence was obtained unlawfully, through commission of a crime, it does not matter if the crime was committed against the accused. The fruits of crime must be excised from the ITO. I will address the issue of excision in due course. For present purposes, I accept that the accused has standing to challenge the seizure from the bar because it formed part of the ITO for the DNA warrant.
[63] Was the taking of the glass a theft? We can presume, given subsequent events, that the bar owner would have consented to the taking, had he been asked ahead of time. When police tried to pay for the glass, the bar owner told them that he was happy to help the investigation. Can this retroactively purge the crime? It would seem not, at least on the strict definition of theft. If the physical and mental elements are in place at the time of the taking, after the fact permission does not undo them. At the time of the taking, the police did not know that the bar owner would consent, and their willingness to pay for the glass serves as an acknowledgement that they deprived the bar owner of this property.
[64] On the other hand, other considerations negate the notion of theft. Theft is defined as the taking of property without consent. A police seizure is also a taking of property without consent. However, it does not follow that all police seizures are thefts. Nor is this suggested by the defence. The defence acknowledged that, if a seizure is authorized by warrant or by statute, the taking is not a theft, because it is authorized by law. This begs the very question in this case, which is whether the taking of the glass was, or was not, authorized by law. The defence argues that it was not authorized by law because it was a theft. However, it is only a theft if it was not authorized by law.
[65] The key distinction between seizure and theft is that theft requires proof of a felonious or fraudulent intent. If the taker has a claim of right over the property, the act is neither theft or larceny. An officer who takes property in order to further an investigation is not acting with felonious intent but rather has a claim of right: see e.g. Barnett v. State Farm General Ins. Co. 200 Cal. App. 4th 536 (2011). Theft is fundamentally a crime of dishonesty. This essential element is missing where police act to preserve or secure evidence of crime. Were it otherwise, then police officers would be perpetually liable to prosecution for discharging their duties to the public.
[66] The HSI officers were clearly investigating crime when they took the glass from the bar. There was no felonious intent. The belief that the glass contained a sample of DNA from a suspect in a homicide furnished a claim of right over the property. The taking of the glass did not constitute a theft or larceny, as defined in Michigan. Nor, incidentally, would it qualify as a theft based on law of Canada: see e.g. R. v Braile, 2018 ABQB 361.
Was analysis of the DNA on the beer glass a constitutional violation?
[67] The Crown argues that the analysis of the biological material on the beer glass was in accord with constitutional principles. It says that the item – and the biological substance left on it by the accused – was abandoned. Where evidence is abandoned, there is no longer any privacy interest, and police can gather it without first obtaining a warrant or other authorization. Indeed, the taking of an abandoned item is not a “seizure” for purposes of s. 8 of the Charter, as a seizure implies interference with a reasonably held privacy interest.
[68] The Crown’s position is consistent with much of the case law in Canada. There are several cases in which police have secured discarded biological samples in an effort to link a known person to DNA left behind at a crime scene. Many a spin team has followed a target waiting for him or her to shed DNA. Discarded cigarette butts, drinking straws, cups, chewing gum, and other items have linked individuals to crime scenes, facilitating the obtaining of DNA warrants. One person’s trash is often a police investigator’s treasure. Courts have held, in many cases, that techniques designed to gather cast-off DNA are lawful and in accord with s. 8 of the Charter.
[69] The defence argues that recent developments in Canadian law cast doubt on the constitutionality of extracting genetic profiles from discard samples. I agree that recent authority from the Supreme Court of Canada commands a reconsideration of the s. 8 implications of this technique. The following propositions are pertinent:
a. Control is no longer critical to privacy. One can maintain a privacy interest despite having relinquished control over property or information.
b. Abandonment requires a conscious advertence to what is being given up. This is defined by reference to the subject of the search – what the police are really after.
c. Citizens do not, as a rule, consciously contemplate that they are leaving their genetic profile behind when they leave a drinking glass at a restaurant or bar.
d. Even if a citizen did contemplate the DNA on their drinking glass and/or eating utensils, there is little that he or she could do – short of living like a recluse – to prevent the state from collecting it.
e. Analysis of cast-off samples not only yields highly personal information; there are no statutory restrictions on what can be done with the samples or genetic profiles obtained in this fashion.
f. Privacy is normative, not descriptive. The normative question is, not whether the claimant risked an invasion of privacy but, rather, whether reasonable persons in a free and democratic society would expect police to obtain a warrant before acting in the way that they did. The prospect of unregulated, unauthorized collection and use of genetic profiles, at the sole whim of the state, without the consent or even knowledge of the affected individual, is inimical to principles of privacy and liberty that animate a free and democratic society.
[70] I will deal with each of these in turn.
Privacy Does Not Depend on Control
[71] In R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, the Supreme Court of Canada dealt with the abandonment of interests in a bag of garbage left for collection. In that case, the placement of the bag for pick up, in a location accessible by others, was seen to be an abandonment of both the property and the informational privacy attaching to the bag’s contents. To the extent that there were private items in the bag – pill bottles with labels, envelopes with names, or other documents – the homeowner had to expect that others, including police, might access that material. A critical factor in Patrick was the relinquishment of control.
[72] Other cases took a similar approach. Mr. Edwards could not claim an interest in his girlfriend’s apartment, where he had hidden his drugs. Unable to control access to and from the apartment, he was nothing more than an especially privileged guest: see R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128. Ms. Lawrence could not claim an interest in a car, in which she was merely a passenger. She could not control access to the vehicle and was unable to challenge seizure of stolen property from the backseat: see R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341. Historically, ownership, possession, historical use, and/or the ability to control access to an item or location were pivotal factors in the assessment of privacy.
[73] This changed with the decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, which marked a conceptual shift. In Marakah, the accused sent a text message to his criminal confederate. The fact that the message was sent did not deprive him of his privacy interest. McLachlin C.J. (as she then was), at paras. 41-42, said the following about control:
The cases are clear: a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where “technological reality” (Cole, at para. 54) deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny. Mr. Marakah shared information with Mr. Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this information to third parties. However, by accepting this risk, Mr. Marakah did not give up control over the information or his right to protection under s. 8.
The shared control aspect of this case is similar to that in Cole. Mr. Cole had pornography stored on his work computer. His employer, like Mr. Winchester in this case, could access the contents of the computer. Mr. Cole did not have exclusive control of the physical location searched (his work-issued laptop). Yet this Court held that Mr. Cole had a reasonable expectation of privacy in the subject matter of the search, i.e., the pornographic material stored on the computer: Cole, at paras. 51-58.
[74] Subsequent cases confirmed that control is not an essential pre-condition for privacy. In R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34, the accused was able to challenge a detention based, in part, on the fact that police trespassed in a backyard that belonged to someone else and over which Mr. Le had no control. In R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, the accused shared a computer. He did not have control in that the co-user could access his data. It did not, however, follow that the data could be taken by police. In R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, the Supreme Court recognized that one can claim privacy in public places despite there being no control over being seen by others. Here, the court affirmed that privacy is not an all or nothing proposition; it means different things in different contexts, and the fact that information is accessible by a third party does not imply that it can be shared with the state.
[75] Many of the cases dealing with discarded DNA in this area have found abandonment because the accused relinquished control of the physical item containing the DNA. To be sure, there is no control over what is done to a drinking glass once one leaves a drinking establishment. In the wake of Marakah, this is no longer dispositive. Giving up control does not necessarily mean giving up privacy.
Abandonment Requires Conscious Advertence
[76] Abandonment implies a voluntary intention to give something up. Absent a voluntary intention, there is no abandonment. This point is illustrated by R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227. In Law, the accused’s safe was stolen and he called police. His safe was found in a field, open, with his papers exposed to view. This was not abandonment because, as was held at para. 18: “the appellants did not voluntarily discard their private documents”. The documents were only available because of the intervening act of the thief. Therefore, police were not at liberty to rifle through the documents in the safe. Of curious note is the court’s concern with the prospect of stolen items being examined for DNA, at para. 20:
As I see it, to conclude otherwise would authorize the police to conduct a full search of any item reported stolen, aided only by an unreasonable suspicion or a hunch. Even if an individual reported something as innocuous as a stolen sweater, the respondent’s logic would permit the police to conduct DNA testing of the sweater to assist an ongoing murder investigation. This is particularly problematic given the range of items people are bound to report stolen: a purse, a computer, a car, perhaps even a mobile home. The unauthorized search of such items is precisely the type of investigative action which the “residual” expectation of privacy, and indeed the search warrant process, is meant to prevent.
[77] The voluntary intention to abandon must, logically, attach to the subject matter of the search. How is that defined in this context? Spencer and Marakah, instruct that, in defining privacy, we must not ask overly narrow questions. Privacy is defined, not only by the information sought by law enforcement, but also by the inferences and uses that flow from that information. The reference point is what the police were really after. On this approach, the subject of the search here was not the beer glass, nor even the biological substance on the glass. The subject of the search was the genetic profile extracted from the glass and linked to the accused.
[78] It follows that, in this context, the question is whether the accused voluntarily relinquished his interest, not in the glass, not in the substance, but in his genetic profile. There is no evidence to indicate that the accused adverted to the DNA on the glass, let alone that he deliberately abandoned it. Most citizens are probably unaware of the fact that we leave a trail of genetic calling cards as a function of day to day life.
[79] The Crown relies on the reasons of Ruel J.A. in D’Amico v. R., 2019 QCCA 77, 375 C.C.C. (3d) 1. In finding that the seizure of the appellant’s DNA did not violate s. 8, Ruel J.A. reasoned at para. 379:
In this case it is true that the appellant did not waive the general protection of his DNA data. However, he knew or should have known that leaving bodily substances in public could eventually allow law enforcement to collect and analyze DNA for comparative purposes.
[80] With respect, I am not inclined to impute this constructive knowledge to citizens. I prefer the reasons of Vauclair J.A. in the same case, at paras. 96-97, where he concluded that “a reasonable person does not give any thought to whether or not he or she is abandoning DNA”:
Notwithstanding a strong statement to the effect that a case where someone “abandons” her DNA while she is not in custody turns on the question of “abandonment,” see Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, I am not convinced that the present appeal can be so resolved. True, the cup was abandoned. I have more difficulty finding that the “information” present on the coffee cup, the drinker’s DNA, was abandoned as well.
While it is true in most situations that a thing and the privacy interest in it are abandoned simultaneously, abandonment is not an absolute concept. As an author puts it, “it is important not to leap automatically from the physical act of ceasing to hold something to the conclusion ‘the accused abandoned that’,” because other factors, such as intention, must be taken into account: S. COUGHLAN, On Abandonment and Flight, (2014) 10 C.R. 322. I find that a reasonable person does not give any thought to whether or not he or she is abandoning DNA.
One Cannot Prevent the Shedding of DNA
[81] Even if citizens were to consciously advert to the depositing of DNA, there are other factors militating against the notion of voluntary abandonment. Human beings constantly shed DNA. The sophistication of testing methods allows for DNA analysis of extremely small samples. It is difficult to imagine what someone would have to do if they wished to prevent the state from acquiring genetic material. He or she would have to live like a recluse, or else keep all drinking glasses, eating utensils, and personal trash. Even then, it might still be possible for a resourceful investigator to find a biological scrap suitable for testing.
[82] In other words, discarding DNA is not a voluntary choice. It is, rather, an inevitable consequence of contact with the external world. To this extent, the notion of abandonment is misplaced. The DNA is neither consciously cast-off, nor voluntarily shared. It is emitted, whether or not that is the choice of the individual.
[83] On this point, the decision of the Supreme Court of Canada in R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, is a poignant guide. The police seized a used tissue from Mr. Stillman while he was being questioned in detention. Cory J. found that the concept of abandonment has limited application in the detention or custodial context, given the impossibility of keeping one’s biological material from prison officials. As he put it, at para. 59:
The appellant had been arrested at the time the tissue was seized, and was being detained. He had exercised his right to refuse to provide the police with bodily samples for the purposes of DNA analysis. Without that consent, the police had no right to take these samples from him. However, in the course of his five‑day detention, it is reasonable to presume that, among other things, the appellant would blow his nose, use the toilet, possibly cut himself and bleed, and eat from a spoon. In other words, through “happenstance” the police would be able to take advantage of the appellant’s imprisonment to obtain all the samples they needed, but which they could not legally seize in the absence of a valid search warrant. In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples? He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”. [Emphasis added.]
[84] Given the increasing sophistication of forensic DNA tests since Stillman was decided, this reasoning has become equally applicable to persons who are not in detention. Those who do not wish to share their DNA would, as put by Cory J., “be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from ‘retrieving’ this ‘potentially useful waste’”. As it was put by one commentator in Elizabeth E. Joh, “DNA Theft: Recognizing the Crime of Nonconsensual Genetic Collection and Testing” (2011) 91 B.U.L. Rev. 665, at p. 681:
With genetic information, the ability to take private precautions is limited; no locks or private security can protect the genetic traces we leave behind everywhere. Moreover, unlike a stolen credit card or bank account number, once your genetic information is exposed without your consent, nothing can be done to sever your connections to that information.
See also D’Amico per Vauclair J.A., at para. 110. If there is no choice but to emit DNA, it is, in any real sense, abandoned?
[85] Discarded DNA is, in this respect, similar to technological data and meta-data generated as a function of living in the digital age. Emissions from smart phones, smart homes, and other devices may not be deliberately or even consciously shared – yet, captured and analyzed, they can disclose a revealing portrait of the intimate details and lifestyle choices of the individual. In Carpenter v. U.S., 138 S. Ct. 2206 (2018), the issue was whether the government could take possession of cell site records containing retrospective and comprehensive tracking data for a large mass of citizens. American courts have historically embraced the third-party doctrine, ruling that if someone shares information with a third party, they run the risk that the information will be acquired by the state. In Carpenter, the court expressly departed from this approach based on the sheer breadth of the surveillance data and the fact that it was not “shared” in the traditional sense:
Cell phone location information is not truly “shared” as one normally understands the term. In the first place, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Riley, 573 U. S., at ___ (slip op., at 9). Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates CSLI, including incoming calls, texts, or emails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume[] the risk” of turning over a comprehensive dossier of his physical movements. [Emphasis added.]
[86] So too can it be said that citizens do not, in any meaningful sense, voluntarily assume the risk of turning over, to the state, the highly intimate and uniquely personal information attaching to a genetic profile. There is a distinction between knowing that privacy is being invaded and genuinely consenting to such invasion.
The Normative Approach
[87] It has often been observed that privacy is normative, not descriptive. The normative approach has an aspirational quality. It focuses, not just on what privacy is, but on what it should be. It views individual cases through the broader lens of how we want to live as a society. It transcends the factual minutiae of a given case. It reminds us that just as there is a societal interest in effective law enforcement, so too is there a societal interest in the right to be left alone. It defines the boundaries of the relationship between citizens and the state
[88] As it was put in Patrick, at para. 14:
“Expectation of privacy is a normative rather than a descriptive standard” (Tessling, at para. 42). A government that increases its snooping on the lives of citizens, and thereby makes them suspicious and reduces their expectation of privacy, will not thereby succeed in unilaterally reducing their constitutional entitlement to privacy protection. Equally, however, while a disembarking passenger at the Toronto airport might feel entitled to privacy when emptying his bowels after an intercontinental flight, the obligation to make use of a “drug loo facility” under the supervision of the authorities was upheld in the context of border formalities in R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652. Privacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy. This is inherent in the “assessment” called for by Dickson J. (as he then was) in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60:
This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
[89] In its purest form, the normative approach focusses more on the actions of the state than the actions of the privacy claimant. In R. v. Reeves, at para. 41, the court observed that: “The question is not which risks the claimant has taken, but which risks should be imposed on him in a free and democratic society”. The question, as it was put in R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, is: “Whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.” Applied in this context, we must ask whether seizure of discard DNA, at the sole whim of the state, without authorization or even a requirement of particularized suspicion, is inimical to the notions of freedom and liberty that define a free and democratic society
[90] Unregulated, unauthorized taking of genetic material raises a host of concerns. In R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678, at para. 48, the Supreme Court of Canada recognized that “there is undoubtedly the highest level of personal and private information contained in an individual’s DNA.” While samples taken under warrant or on consent are subject to clear restrictions on use and disclosure, information collected from discard samples is not subject to these controls. This exacerbates the potential for invasion of informational and bodily privacy. Theoretically, there is nothing to stop the state from using cast-off DNA to create a bootleg databank, or test samples for personal characteristics, or share genetic information with other individuals and agencies. These concerns are not just theoretical. In this case, the profile from the cast-off sample was shared by CFS with the Windsor police, on the understanding that they might share it further with HSI. The profile was not sent to HSI, but that was more a function of HSI’s failure to follow up than any intention to protect the accused’s privacy.
[91] All of this is to say that the long-term consequences of permitting unregulated seizure of “discarded” DNA are troubling Indiscriminate collection, use and transfer of genetic material is offensive to those principles that define the relationship between individuals and the state. This was implicitly recognized in R. v. Wawrykiewycz, 2020 ONCA 269, in which Court of Appeal for Ontario cautioned against unauthorized collection of material that could be tested for DNA, at paras. 36, 41-42:
Whether the appellant had a reasonable expectation of privacy in the material collected from the door handle of a car he parked in public is a normative, value-laden inquiry. The essential question is what degree of state intrusion into personal, territorial, and informational privacy can be tolerated without prior judicial authorization. As observed in R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14, “[p]rivacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.” Elsewhere, the Supreme Court has observed, “At the same time, social and economic life creates competing demands. The community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns.”: see Tessling, at para. 17.
I would not conclude that any physical contact by the police with the car is necessarily a violation of a reasonable expectation of privacy. An officer might, for example, place a hand on the hood of a car to determine whether it is warm, that is, to determine whether the vehicle has recently been driven. This evanescent contact is not far beyond the casual contact patrons of a parking lot might incidentally have with other vehicles.
However, I would hold that taking samples of residue left by a suspect’s hands on the handles of a vehicle, and subjecting those samples to chemical analysis, is an intrusion for which a warrant should be required. This investigative technique can reveal “intimate details of the lifestyle and personal choices of the individual.”: see R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. These swabs presumably revealed whether the appellant had handled cocaine. I also agree with the observations in Wong, at para. 27, that privacy concerns are heightened because the swabs may also provide DNA samples for analysis by police, even if that is not why they were initially collected, or what they were used for. Patrick concerned police searches of a suspect’s curb-side garbage. Though the police were searching for evidence of drug offences, the potential for collection of DNA was also relevant to the privacy analysis: see para. 30. The court also expressed scepticism of the notion that privacy concerns are diminished because the search was targeted at contraband: see Patrick, at para. 32; see also A.M., at para. 73. [Emphasis added.]
[92] For these reasons, I find that the DNA extracted from the accused’s drinking glass was not abandoned. It was seized, and the seizure impinged on distinct and important privacy interests. As it relates to the property interest, the glass was the item to be seized. As it relates to the privacy interest – the genetic profile – the glass was the place to be searched. A search of the glass to secure the biological material containing DNA was an invasion of informational (and, in a remote sense, bodily) privacy.
[93] It does not necessarily follow that police must comply with the full prior judicial authorization model before testing discard DNA. That model contemplates that the police obtain a warrant, from a neutral arbiter, on oath, on a showing of reasonable grounds to believe that the procedure will afford evidence of crime. While that is the standard in many contexts, the requirements imposed by s. 8 of the Charter are flexible. In some contexts, a lesser standard – that of objective reasonable suspicion – suffices to meet constitutional requirements. For example, the standard of reasonable suspicion governs use of sniffer dogs. It governs the issuance of certain Criminal Code warrants, including orders for transmission data recorders (s. 492.2); and tracking warrants (s. 492.1).
[94] It is open to argument that the analysis of discard DNA might similarly call for a standard of reasonable suspicion, rather than reasonable grounds to believe. In R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, Binnie J., at para. 9, recognized that to require reasonable grounds and prior judicial authorization would effectively neuter sniffer dogs as an investigative tool:
While the dog sniff constituted a search, it is a search of a minimally intrusive and tightly targeted type. For reasons to be explained, I would not go so far as the accused who insists that the full Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, requirement of prior judicial authorization must be imposed. In effect, the defence argument would mean that the dogs can only be used where there is no need for them. If the police have reasonable and probable grounds to believe that an individual has committed a drug offence and that a search would lead to apprehension of the perpetrator and/or discovery of evidence, the police would already have the grounds required for a search warrant. The defence argument produces too much rigidity and does not take into account the minimally intrusive nature of a sniffer-dog search, and the fact that a sniffer dog properly trained and handled “alerts” only to contraband with a high degree of accuracy.
[95] The seizure of discard DNA is different, in some respects, than the use of sniffer dogs. The obvious difference is that there is far greater privacy in one’s DNA than in the presence of contraband in a receptacle. On the other hand, the seizure of discard DNA is less intrusive than other physical searches in that the DNA is taken from an object rather than the suspect’s body – an object that is not usually owned by the suspect. Moreover, like sniffer dogs, a reasonable grounds standard would negate the utility of discard DNA as an investigative tool. Discards are usually seized as an intermediate step in an investigation, taken when police do not have grounds for more intrusive measures. If police have reasonable grounds to believe that DNA testing will identify the donor of a crime scene sample, they need not to resort to a discard sample. They can proceed directly to an application for a DNA warrant.
[96] Therefore, it could be said that the standard of reasonable suspicion recognizes the investigative exigencies of DNA related investigations, the absence of bodily intrusion in these cases, and, on the other side of the equation, the subsisting privacy interest that exists in genetic material. The reasonable suspicion standard might well strike a proper balance between competing state and individual interests. It would ensure that police can effectively turn to discard samples when necessary but would prevent genetic fishing expeditions and DNA dragnets.
[97] The utility of the reasonable suspicion standard was recently discussed in Ahmad, 2020 SCC 11, [2020] S.C.J. No. 11, at para. 24:
In every context, the reasonable suspicion standard ensures courts can conduct meaningful judicial review of what the police knew at the time the opportunity was provided (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 26 and 58; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 41). This standard requires the police to disclose the basis for their belief and to show that they had legitimate reasons related to criminality for targeting an individual or the people associated with a location (K. Roach, “Entrapment and Equality in Terrorism Prosecutions: A Comparative Examination of North American and European Approaches” (2011), 80 Miss. L.J. 1455, at pp. 1472-73; Ashworth, at pp. 304-5). An objective standard like reasonable suspicion allows for exacting curial scrutiny of police conduct for conformance to the Canadian Charter of Rights and Freedoms and society’s sense of decency, justice, and fair play because it requires objectively discernible facts. As is the case with warrantless searches, “the trial judge [must be] . . . in a position to ascertain [these objective facts], and not bound by the personal conclusions of the officer who conducted the [investigation]” (P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123, at p. 126 (emphasis added)). This is essential to upholding the rule of law and preventing the state from arbitrarily infringing individuals’ privacy interests and personal freedoms (Chehil, at para. 45). [Emphasis in original.]
[98] Finally, there would be an incidental advantage to this approach, in that it would characterize the collection of discard DNA as a “seizure”. It is not simply the gathering of an abandoned item. To this extent, the provisions of ss. 489.1 and 490 of the Criminal Code, R.S.C., 1985, c. C-46, apply. Section 489.1(1) requires a return or report to a justice “where a peace officer has seized anything under a warrant … or otherwise in the execution of duties under this or any other Act of Parliament”. Section 490 sets out a mini-code for overseeing police detention of things seized. These provisions do not impose DNA specific restrictions such as those in the DNA warrant and DNA data bank schemes. They could, however, be interpreted to offer some measure of after the fact accountability and some measure of judicial control over what is done with the item, the substance and the resulting genetic profile.
[99] It may be for others to determine what the procedure for seizing and analyzing discard DNA should properly be. Were the standard one of reasonable suspicion, without need for a warrant, the extraction of DNA in this case would likely satisfy that test. By the time the police obtained the DNA, the accused had been identified as a suspect, and was known to have been in the vicinity of the crime during the time frame of homicide On the other hand, if the proper standard is one of reasonable grounds to believe, with or without a warrant requirement, the extraction of DNA in this case would not satisfy the test, and would violate s. 8 of the Charter.
[100] Given that, on a reasonable grounds standard, the obtaining of the DNA profile would amount to a s. 8 violation, I will proceed on the basis that the extraction of DNA resulted in a breach of the Charter. This will ensure that the accused’s constitutional case is taken at its highest when considering the issue of excision and s. 24(2) of the Charter.
EXCISION
[101] I have found the following:
Police acted unlawfully in obtaining information from Bank of America without authorization;
Police did not act unlawfully in seizing the drinking glass from the Michigan bar;
Police potentially acted in breach of s. 8 of the Charter when the genetic profile was extracted from the biological substances on the drinking glass.
I must now determine what impact these findings have on the validity of the ITO and warrant.
[102] The defence argues that any information obtained in an unlawful or unconstitutional manner must be automatically excised from the ITO. This would require that the Bank of America information be excised. Excision of that information could lead, by necessity, to the excision of the evidence of the cast-off sample. Police could not have obtained the cast-off DNA without the information unlawfully seized from the bank. They would not have known who to surveil and who to target during their investigation. On this approach, the ITO is a metaphoric house of cards. To remove the foundation – the information from Bank of America – is to topple the entire structure. Alternatively, the defence argues that the DNA should be excised on its own terms, as the fruits of unconstitutional activity.
[103] The excision of the Bank of America data would also have the effect of removing the information taken from a warranted examination of the accused’s work phone and computer. The defence says that the ITO is deficient, because the affiant failed to disclose a letter from the accused’s employer about his technological devices. The letter says that the employer had decided to turn the devices over to Windsor police, rather than searching for information themselves. The defence argues that this is inconsistent with an assertion in the ITO that the employer had discovered an internet search about the homicide on the accused’s computer. I do not see these assertions as necessarily inconsistent. Nor did Amlin, the officer who swore the ITO. It is conceivable that the internet search was discovered when the employer began reviewing the contents of the computer, and before the employer decided to turn over the devices. Be that as it may, the accused’s computer would not have been acquired if police had not first received the information from Bank of America. Therefore, the information about the internet search is a part of the collateral damage flowing from excision of the Bank of America search.
[104] The Crown resists the notion that excision is automatic. It argues that there is good reason to engage in a more nuanced balancing process before excising information from the ITO.
[105] The issue of excision has generated some debate in the case law, though it is arguably not a debate that can be resolved in the lower courts. The Supreme Court of Canada has affirmed in several cases that, where information has been obtained in an unlawful or unconstitutional fashion, it is to be removed from consideration in the ITO, the rationale being that the police should not be permitted to profit from their own wrongdoing. The doctrine can be traced back to R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3 and a subsequent trilogy of cases in the 1990s: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223; and R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 SCR 263. In Kokesch, the police conducted a perimeter search of the target’s property and relied on the fruits of that search to obtain a warrant. The Supreme Court of Canada held that the perimeter search violated s. 8, and that it was a serious breach, impinging on the privacy interest in the home. The warrant was struck, and the evidence excluded under s. 24(2).
[106] The issue of perimeter searches came back before the court in Plant, Grant, and Wiley. In Grant, the police had again conducted an unlawful perimeter search and relied upon the search to get a warrant. This time, however, there were other grounds in the ITO, independent of the perimeter search, that could justify issuance of the order. The perimeter search was excised, but the warrant, capable of issuance without it, was held to be valid.
[107] The automatic excision of the perimeter search from the ITO was not surprising on the facts of Grant. Just a short time before the Supreme Court of Canada had found in Kokesch that the perimeter search was a serious breach, warranting exclusion of the evidence. It logically followed that the same evidence would have to be excluded in Grant. However, the Supreme Court of Canada has continued to apply the rule of automatic excision, even where it is not so obvious that the information in question would be excluded at a trial.
[108] Some judges have commented, in critical terms, on the anomalous contrast between the rule of automatic excision from the ITO and the more balanced approach taken under s. 24(2) to admission of evidence at trial. As Gleeson J. put it in Sections 12 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 (Re), 2020 FC 616, at para 184:
As noted by Justice Code in Jaser the excision doctrine has survived, but not without two major critiques. First, the rule creates an anomaly: when considering the validity of a warrant, a judge must automatically excise evidence arising from a Charter breach or that was otherwise unlawfully obtained, while, at trial, the judge will only exclude that same information following a careful balancing under subsection 24(2) (Jaser at para. 26, citing R v Chau, [1997] OJ No 6322 at para. 50, aff’d on other grounds 2000 CanLII 17015 (ON CA)). Second, the source of the excision doctrine is not clear: it does not appear to be a subsection 24(1) or 24(2) remedy as it is rigid, categorical, and lacks proportionality; nor does it appear to be a common law remedy as it is not based on any traditional exclusionary principle such as trial fairness, reliability, abuse of process, or the balancing of probative value and prejudicial effect (Jaser at para. 28).
[109] MacDonnell J. offered a response to the criticism in R. v. Lam, 2015 ONSC 2131, at paras. 55-58:
As Justice Code observed recently in R. v. Jaser and Esseghaier, 2014 ONSC 6052, Grant, Wiley and Plant have been consistently interpreted as laying down a ‘rule’ requiring courts reviewing the sufficiency of informations to obtain search warrants to excise facts obtained by means of a Charter breach regardless of the gravity of the breach and without the kind of assessment of contextual factors that takes place in a s. 24(2) analysis.[6] The rule has not been without its critics, however.[7] It is anomalous, some have argued, that facts derived from a breach of the Charter must be ‘automatically’ excluded on a mere evidentiary hearing while at the trial itself, where guilt or innocence is at stake, unconstitutionally obtained evidence can only be excluded after the careful balancing required by s. 24(2).
The short answer to that criticism, as Justice Code pointed out, is that if the rule of excision is to be modified, the modification will have to come from the Supreme Court of Canada. The better answer, however, may be that the criticism is based on a misconception. Excision has nothing to do with the admissibility of evidence. Unlike s. 24(2), it is not a remedy for a breach of the Charter. Its purpose is not to determine whether evidence obtained pursuant to a search warrant or other judicial authorization should be admitted or excluded at trial. Rather, it is a mechanism for determining the significance of prior unconstitutional conduct in the chain of events that led to the evidence that is sought to be excluded. It enables a court to determine whether the evidence would have been obtained in any event of the breach, which in turn will assist in determining whether the evidence was ‘obtained in a manner’ that infringed the accused’s rights and the extent of the impact of the breach on the accused’s Charter-protected interests.
The kind of balancing that Grant, Wiley and Plant have been criticized for not contemplating, and that the Crown invited the court to undertake here, would do nothing to assist in making those determinations. Ruling that, on balance, unconstitutionally obtained facts should not be excised from an ITO would not change their character as unconstitutionally obtained facts and would not insulate the fruits of a subsequent search from exclusion under s. 24(2).
I acknowledge that in Grant Justice Sopinka stated that by excising improperly obtained facts from an ITO “the state is prevented from benefitting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event”. Considered in isolation, that statement might suggest that excision is a remedy for unconstitutional police conduct. However, when the statement is read in context, it is clear that Justice Sopinka was not talking about the exclusion of evidence. Nowhere in Grant did he suggest that a determination that a warrant could not have issued without reliance on unconstitutionally obtained facts means that evidence obtained in the execution of the warrant is necessarily inadmissible.
[110] I will add my voice to those of judges who question the wisdom of the automatic excision rule. As noted by Code J. in R. v. Jaser, 2014 ONSC 6052, it is odd to suggest that one might admit evidence at a trial yet force an automatic removal of that same evidence from the factual matrix in a search warrant. If a trier of fact could consider the evidence in arriving at a finding of guilt, why can a police officer not consider the evidence as grounds for an investigative step? The ultimate question is one of reasonableness – whether it was reasonable for the police to believe that they could lawfully rely on the information. One can imagine a situation in which the police reasonably believe that they acted lawfully, even though the reviewing court has come to a different conclusion. Police reliance on existing law is evidence of good faith, capable of supporting admission of the evidence at trial.
[111] Moreover, the very essence of s. 8 lies in the balancing of competing state and individual interests. The issuing justice must consider whether the interests in law enforcement outweigh individual interests in privacy. That would ordinarily imply that an issuing judge – and by necessary implication – a reviewing court – is entitled to weigh all of the circumstances, including an illegality, in determining whether the warrant should issue. I accept the principle that the state should not profit from unlawful conduct. However, that rule is not absolute in other contexts. As illustrated by the jurisprudence under s. 24(2), unlawful conduct can manifest in a variety of ways, some flagrant and highly offensive, some technical and of lesser consequence. The rule of excision lumps them all together and decrees, in advance, that all must be removed.
[112] This case raises a twist in that the search of the bank was extra-territorial. Were that evidence presented at trial, it would not be subject to analysis under s. 24(2). It would instead be subject to the standard set out by Lebel J. in Hape – whether the admission of the evidence would render a Canadian trial unfair. As it was put in Hape, at para. 109:
[T]he foreign law is not governing in trials in this country. For example, it may happen that the evidence was obtained in a manner that conformed with the law of the country where it was obtained, but which a court in this country would find in the circumstances of the case would result in unfairness if admitted at trial. On the other hand, the procedural requirements for obtaining evidence imposed in one country may be more onerous than ours. Or they may simply have rules that are different from ours but are not unfair. Or again we may not find in the particular circumstances that the manner in which the evidence was obtained was sufficiently objectionable as to require its rejection. In coming to a decision, the court is bound to consider the whole context.
At the end of the day, a court is left with a principled but fact‑driven decision.
[113] There might be cases where the extra-territorial nature of the search would matter, but this is not one of them. The search of the bank was unlawful in the United States because of the absence of authorization, and it would have been unlawful in Canada because of the absence of authorization. I am bound by the Supreme Court decisions that have affirmed that unlawfully obtained information should be excised, and application of that rule in this case would remove the Bank of America information from the ITO.
[114] Were I free to do so, I might have reached a different conclusion as it relates to the genetic profile. While the DNA analysis might have violated s. 8, the police were entitled to rely on the plethora of cases that have historically permitted this technique. In the end, however, this does not matter given that a) I am bound by the Supreme Court authority; and b) absent the information from the Bank of America, there would have been no seizure of DNA, as police would not have identified the person at the bank machine.
[115] Therefore, the Bank of America seizure, the genetic profile, and its comparison to the profile on the victim’s right breast are excised from the warrant. This effectively guts the ITO. That which remains is incapable of justifying the issuance of the order. The warrant having been declared invalid, the extraction of the DNA was, in effect, a warrantless search, in violation of s. 8 of the Charter.
SECTION 24(2)
[116] Section 24(2) governs the admissibility of the DNA profile obtained as a result of execution of the DNA warrant. The seizure of the DNA sample violated s. 8 because it was warrantless. It was warrantless because of unlawful or unconstitutional procedures that were relied upon in the ITO.
[117] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada articulated three lines of inquiry to be considered in determining whether evidence obtained in a Charter-infringing manner should be excluded under s. 24(2): (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.
[118] I will deal first with the seriousness of the state conduct. As it relates to the information obtained from Bank of America, Sgt. Amlin either knew, or ought to have known, that some form of authorization would likely be required to obtain this information. I have already referred to his testimony about the nature of the call and what he was hoping to achieve. Amlin testified that he thought the bank employee would know whether she was authorized to provide information about the account holder. If she gave him the information, he did not need an authorization. If she did not provide the information, then he needed an authorization. I have already observed that police are required to conduct their own assessment of whether they have authority to act, what that authority is, and what it entitles them to do. They are not at liberty to test the waters and see how far they can go without authorization. This is particularly so in protected waters, where the custodian of the information has a duty of confidentiality. The police cannot ask banks to disclose financial information without authorization any more than they can ask doctors to disclose health information without authorization.
[119] The police did not know how to proceed in a cross-border investigation. They did not know the law in the United States. This did not excuse the failure to take lawful steps. It is, itself, cause for concern. Windsor is a border city, in which people routinely travel from Canada to the United States. In Hape, Lebel J. recognized, at para. 98, that: “transnational crime is a growing problem in the modern world as people, property and funds move fluidly across national borders.”
[120] Because the call to Bank of America reflected a careless disregard for the accused’s rights, the Crown cannot rely on a finding of good faith. At the same time, I cannot find bad faith. The police did take steps to comport with the law. The TD bank information was obtained through a production order. Taylor was seeking advice from Marcell about how to obtain information from Bank of America. This is not a case in which police forged ahead without any regard for Charter principles. When they knew what they needed to do, they did it. It was in the face of uncertainty that the police faltered. That is not an excuse. The police had access to legal advice and should have availed themselves of it. It is only to say that the Bank of America breach occurred in the context of other lawful investigative activity. This is not a case in which there is a flagrant pattern of multiple breaches, or a failure to pay any heed to constitutional principles.
[121] I am mindful of the exigencies of police work and the fact that decisions made quickly in the field are often the subject of microscopic dissection and scrutiny in the courtroom. In this case, police were anxious to identify the person who had committed the crime. There was no doubt a concern for public safety and a related concern that, as time passed, the perpetrator could end up being further and further away. These considerations would not have rendered the search lawful – there was not sufficient exigency to justify acting without authorization. Moreover, having already written the ITO for TD bank, it would not have taken a great deal of time to prepare material for an American subpoena. Nonetheless, a perception of exigency might have mitigated the seriousness of the breach, had it been articulated by the police witnesses who testified in the voir dire. The officers did not speak of temporal urgency, and, therefore, I have not given it weight in the analysis.
[122] The seizure of DNA does attract a finding of good faith. I have ruled that the extraction of DNA from the cast-off sample potentially violated s. 8 of the Charter. However, this ruling runs counter to much of the existing law in this area. A similar approach was taken by the Quebec Court of Appeal in D’Amico, but the law in Ontario has historically permitted police to seize discard samples in order to obtain DNA. While I believe that the ruling on s. 8 flows inexorably from Supreme Court authority, police are entitled to rely on existing law and are not held to a standard of prescience as to what the law might become. Similarly, it was reasonable for police to believe that the DNA seized under the warrant was lawfully authorized to be taken and analyzed for presentation in court.
[123] On the second line of inquiry, the obtaining of information from the Bank of America violated the accused’s privacy, but the scope of the violation was limited. The information allowed for identification of the accused as the person who used the bank machine near the time and place of the murder. This was a breach of s. 8, but the gravity is tempered by the surrounding circumstances. The accused had to reasonably expect that his image would be captured by a camera while he used the bank machine. He likely knew that there would be an electronic record of his bank card number and the details of the transaction. The information obtained from Bank of America was private but did not involve extensive disclosure of financial activities. The violation of privacy was not insignificant – we expect banks to respect confidentiality – but the information obtained fell toward the outer perimeter of the biographical core.
[124] By way of contrast, the seizure of DNA – both the cast-off sample, and the sample obtained under warrant – impinged in a very substantial way on Charter-protected interests. DNA is the outer manifestation of identity, involves use of the body, and attracts a significant degree of privacy.
[125] Finally, I must consider society’s interest in the adjudication of the case on the merits. As held in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility” (citations omitted).
[126] The crime before the court is, of course, serious. First degree murder is the most serious offence known to our law. However, that does not excuse the breaches, nor lead to the admission of evidence at trial. The seriousness of the crime is a double-edged sword. There is a public interest in the trial; but there is an equally compelling societal interest in having police comply with the Charter particularly when investigating cases of this nature. The Supreme Court of Canada has cautioned against allowing the nature of the crime to overwhelm the s. 24(2) analysis.
[127] What is to be considered under this head of inquiry is the reliability of the evidence and its importance to the case for the prosecution. The DNA is reliable evidence. I am not here referring to its actual or ultimate reliability. It is open to the defence to challenge the accuracy of the DNA testing at trial should it choose to do so. In this context, reliability refers to the fact that the DNA was not susceptible to manipulation as a result of the breach. A statement obtained in breach of the Charter may or may not be reliable. It does not exist irrespective of the breach. The biological sample is unaltered by police conduct and to that extent has a reliable character, independent of the Charter violation. It is also, in this case, a centrepiece of the case for the Crown. Absent the DNA, there is little to connect the accused to the crime.
[128] Tallying the analysis, the first set of factors warrants exclusion as it relates to the Bank of America information, but not the DNA. The second set of factors warrants exclusion as it relates to the DNA but not the banking information. The third set of factors would warrant admission of the evidence at trial.
[129] Balancing these respective considerations, I conclude that the DNA sample taken pursuant to the warrant – albeit an invalid warrant – would not bring the administration of justice into disrepute. Nor, were I to apply the rule in R. v. Hape, would the admission of the evidence render the trial unfair.
[130] The application to exclude the DNA evidence from the trial is dismissed.
Original signed by Justice Renee M. Pomerance
Renee M. Pomerance
Released: Orally and in writing - November 27, 2020
COURT FILE NO.: CR-19-4707
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Jitesh Bhogal
Ruling on exclusion of evidence
Pomerance J.
Released: Orally and in writing – November 27, 2020