COURT FILE NO.: CR-1087/19
DATE: 2022-12-01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING (Respondent)
– and –
Robert Steven Wright (Applicant)
COUNSEL:
Jeremy D. Tatum / Michelle Campbell / Kevin Ludgate / Brittany Butler, for the Crown
Michael W. Lacy / Bryan Badali, for the accused
HEARD in person: November 1, 2, 2022
DECISION ON APPLICATION
R.D. GORDON, J.
Overview
[1] The accused is charged with second degree murder. As part of their investigation, police arranged for the profile from DNA found on or under the fingernails of the deceased (“crime scene DNA”) to be compared to DNA profiles uploaded by genealogy enthusiasts to public databases. The goal was to identify the donor of the crime scene DNA or relatives from whom he or she could be traced.
[2] The comparison concluded that the crime scene DNA partially matched two sets of siblings in the database. Through genealogical research into publicly accessible family trees, police were able to identify a potential direct ancestor of the donor of the crime scene DNA. The police continued their investigation through interviews with those who had submitted the DNA to the public database on behalf of the siblings in question. They were able to determine that their families intersected, and their information ultimately led the police to focus their attention on the accused and members of his immediate family.
[3] In the fall of 2019, police gathered cast-off DNA from the accused, his brother and his parents. The DNA from the accused could not be excluded as the source of the crime scene DNA. The DNA from the father of the accused could not be excluded as the source of the DNA from a glove found near the scene of the crime. The DNA from the brother of the accused could not be excluded as the source of DNA found on a bloody jacket located with the glove.
[4] Based on this evidence, warrants were obtained to obtain bodily samples of DNA from the accused, his father and brother. The warrants were executed and the accused arrested shortly thereafter. The results of the DNA comparisons confirmed the earlier findings from the cast-off DNA.
[5] Fingerprints taken from the accused upon his arrest were not suitable for comparison to fingerprints found at the crime scene. Subsequently the police were granted a warrant and obtained further fingerprints of the accused and obtained a report positively identifying his fingerprint as the print found on the cash register at the crime scene.
[6] The accused challenges the lawfulness of the warrants to procure a sample of his DNA and to obtain his fingerprints on the basis that they relied on unlawfully obtained information without which neither warrant could have issued. He raises four issues for determination:
Did police require judicial authorization before arranging the search of a public DNA database and, if so, should the results of that search and any derivative investigation, be excised from the ITO?
Did police require judicial authorization before obtaining cast-off samples of the DNA of the accused and his family members?
Could the DNA warrant and impression warrant have issued once the information derived from the public data bank search and/or cast-off DNA analysis was excluded?
If the DNA warrant could not have issued once the information arising from any unconstitutionally obtained DNA samples is excised from the ITO, should the DNA sample obtained from the applicant and his family members be excluded from the evidence pursuant to s. 24(2) of the Charter?
Issue #1 – the Search of the Public Data Bank
[7] The position of the accused is that accessing open-source DNA databanks for the purpose of criminal investigation constitutes a search and requires prior judicial authorization. Essentially, the accused argues that he had a reasonable expectation of privacy in the genetic profile that he shared with the distant relatives whose DNA profiles had been uploaded to the public databank. He argues that if he has such a reasonable expectation of privacy, section 8 of the Charter is engaged and it must be determined whether the search was reasonable. There having been no warrant and no law authorizing the search, he argues that the search must be found to be unreasonable and in contravention of his Charter protected right to be free from unreasonable search and seizure.
[8] As stated in R. v. Cole, 2012 SCC 53, privacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy.
[9] Whether Mr. Wright had a reasonable expectation of privacy depends on the totality of the circumstances, having regard to four lines of inquiry: (1) What is the subject matter of the alleged search? (2) Did Mr. Wright have a direct interest in the subject matter? (3) Did Mr. Wright have a subjective expectation of privacy in the subject matter? (4) If so, was his subjective expectation of privacy objectively reasonable?
The Subject-Matter of the Search
[10] In R. v. Spencer, 2014 SCC 43 the Supreme Court of Canada endorsed the view that a broad and functional approach is to be taken to the question of what the subject matter of a search is. What must be considered is not only the nature of the precise information sought, but also the nature of the information it reveals.
[11] In this case, a profile from the crime scene DNA was uploaded by police agents to GEDmatch for automated comparison to other DNA profiles voluntarily uploaded to the database. The search was for common genetic markers. What was eventually provided to police was the name, email address and estimated relationship of those persons on the database whose genetic markers had similarities to those of the crime scene DNA. Of note, the actual DNA was not provided to police nor any information relating to the DNA other than the degree of relationship that has been revealed by the similarities.
[12] The subject-matter of the search was the name, email address and estimated relationship of persons whose genetic markers had similarities to those of the crime scene DNA.
Did Mr. Wright Have a Direct Interest in the Subject Matter of the Search?
[13] Whether an individual has a direct interest in the subject matter of a search is not defined by whether the subject matter is incriminating or not, but by the degree to which the individual has a meaningful connection to the subject matter – for example, through participation, authorship, ownership or control. [See R. v. Dosanjh 2022 ONCA 312].
[14] All of these “connections” are physical actions related to the existence of the subject matter of the search. Courts have established that a person is meaningfully connected to things they have created, owned or controlled, whether alone or in concert with others.
[15] But can a person have a meaningful connection to the subject matter of the search when he or she has had nothing to do with its existence or creation? Can a person have a direct interest in something they have no knowledge even exists? Is the fact that the subject matter of the search reveals something about him or her sufficient to create the “direct interest” required? In my view, the answer is no.
[16] If all that is required to create a “direct interest” in the subject matter of a search is that the search reveals something about the person challenging it, this factor would be rendered meaningless. I would venture to say that in every case that a search is challenged, it is because the subject matter of the search reveals some sort of information relevant to the accused. If it did not, there would be no reason to make the challenge. There must be something more – something tying the creation or existence of the subject matter of the search to the person challenging it. That connection does not exist in this case.
Did Mr. Wright Have a Subjective Expectation of Privacy in the Subject Matter of the Search?
[17] The threshold for establishing a subjective expectation of privacy is low [see R. v. Marakah, 2017 SCC 59].
[18] Mr. Wright did not testify on the voir dire and so I have no direct evidence of his subjective expectation.
[19] I accept that in some circumstances the court may readily infer such an expectation from other facts that are before it. For instance, the court will not need evidence to establish a person’s subjective expectation of privacy in a home that is proven to be theirs. Similarly, the court will not need evidence to establish a person’s subjective expectation of privacy in a diary that is proved to have been written by them.
[20] In my view it is less obvious that a person necessarily has a subjective expectation of privacy in the number of genetic markers he shares with a person or persons unknown to him, or the nature of the familial relationship those markers reveal. In the absence of evidence from Mr. Wright, I am unable to find that he has a subjective expectation of privacy.
The Objective Reasonableness of the Expectation of Privacy
[21] The Court of Appeal for Ontario nicely summarized the nature of the inquiry in determining whether a reasonable expectation of privacy exists when it said in R. v. Wawrykiewycz, 2020 ONCA 369:
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, “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.” 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.
[22] In R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, the Supreme Court set out several factors for consideration in determining the reasonableness of the expectation, including: (1) The place where the search took place; (2) Whether the subject matter of the search was in public view; (3) Whether the information was already in the hands of third parties and, if so, was it subject to an obligation of confidentiality; (4) Whether the police technique was intrusive in relation to the privacy interest; (5) Whether the subject matter of the search exposed any intimate details of the applicant’s lifestyle, or information of a biographical nature.
[23] Before examining each of these factors, it bears repeating just what the subject matter of the search revealed. To be clear, it did not reveal anyone’s genetic makeup, which is to say, it did not reveal anyone’s DNA. It revealed the extent to which certain DNA profiles shared common characteristics with the profile generated from the crime scene DNA, and the names and email addresses of the providers of those profiles.
[24] It is also important to consider the privacy interest at issue. In this case it is informational privacy and, more particularly, anonymity. As confirmed by the Supreme Court in R. v. Spencer, 2014 SCC 43, anonymity may, depending on the totality of the circumstances, be the foundation of a privacy interest.
Where the Search Took Place
[25] The search took place on an electronic database, accessible by the public for the purposes of having DNA profiles compared electronically. There is no territorial privacy interest at play.
Was the Subject-Matter in Plain View?
[26] Although the subject matter of the search was available on a public database, it was not in plain view.
Was the Subject-Matter Already in the Hands of Others?
[27] As the information in question was contained in the DNA of others, it is fair to say that it was already in the hands of others. It was also contained in the public database. There is no obligation of confidentiality alleged or apparent.
The Police Technique
[28] The police technique was not significantly intrusive in relation to Mr. Wright’s privacy interest. The technique itself was undertaken completely without his knowledge and required no involvement by him. It was intrusive relative to Mr. Wright’s right to remain anonymous, but only indirectly so. The results of the search, on their own, did not reveal his name, his location or anything about him other than the names of certain people to whom he may be related.
The Nature of the Information Exposed
[29] The search did expose information of a biographical nature. In particular, it revealed persons with whom Mr. Wright shared genetic traits and with whom he held a degree of familial relation. However, it is again worth noting that it did not reveal his name or anything else about him. That required further investigative work by police with the cooperation of the persons responsible for uploading their DNA profiles to the database.
[30] Having regard to these factors, is the search of a such a public database by police an acceptable degree of state intrusion into informational privacy?
[31] The accused argues that it poses great peril to the privacy rights of millions of Canadians who may be unaware that police services currently have virtually unfettered access to their genetic information. He argues that because we each share segments of our DNA with family members, important information about our identities and biographical data may be made available without our knowledge or consent.
[32] In my view, this position is somewhat overstated. It is not fair to say that the police have virtually unfettered access to genetic information through these databanks. All they are able to ascertain is whether DNA profiles in the database have any similarities to the DNA profile uploaded by them, and the extent of those similarities. As I understand it, police are not told what aspects of the DNA are shared and it is thus not possible to discern anything from the results of a search other than a possible familial relationship. The obvious exception to this is when there is a 100% match, which would indicate that whoever uploaded the DNA is either the precise person sought by police (whose DNA they already have) or his or her identical twin.
[33] The accused also argues that as more and more people contribute to public DNA databases, the greater the likelihood that the state will be able to trace literally anyone through their DNA, increasing the state’s power of genetic surveillance for the purpose of criminal investigations far beyond what has been put in place in the DNA Identification Act, S.C. 1998, c 37 (“DNA Act”) to protect Canadians’ privacy.
[34] There can be little doubt that the ability to compare the DNA profile of crime scene DNA to DNA profiles on public databases significantly increases the investigative capabilities of police beyond that provided in the DNA Act. However, there are several significant differences between the two: (1) Many of the DNA profiles generated under the DNA Act are from government conscripted DNA whereas none of the profiles in the public databases are conscripted by government. (2) Under the DNA Act, government has control of the actual DNA and DNA profile of samples submitted. In GEDmatch, the government does not access the actual DNA or DNA profile of any participants. (3) Public users of GEDmatch are required to indicate, when they submit their DNA kit, whether they agree to the comparison of their DNA kit with kits uploaded by law enforcement to assist in the identification of perpetrators of violent crime. If they do not opt into this feature, their DNA kits are not used for comparison.
[35] The accused suggests that those who upload profiles to these databases do not understand the potential ramifications of doing so and must be protected. I do not necessarily agree. One of the very reasons people upload their DNA kits to GEDmatch is for genealogical research – to discover persons to whom they are related and to allow others to discover that same relationship. The terms of service for GEDmatch have users acknowledge that they are aware they may register their information under an alias and that no other identifying information is released other than an email address. They must surely understand that they are under no obligation to answer an email inquiry that comes their way, nor are they owed an answer to any email inquiry they make. Through very simple means they retain the right to maintain their anonymity completely should they wish to do so.
[36] Lastly, the accused expresses concern that in the context of ancestry websites, there is no guarantee that the person who uploads the profile is the actual donor of the DNA. In this regard, it is to be noted that the GEDmatch terms of service require users to represent that the DNA data they upload is their DNA, the DNA of a person for whom they are legal guardian, DNA of a person who has granted specification authorization to them, or DNA of person they know to be deceased.
[37] I acknowledge that GEDmatch registration is an honour-based system and that not all users will necessarily adhere to all of the terms of service. Nonetheless I have been provided with no statistical data to establish the prevalence of this sort of non-compliance.
[38] Against these concerns are society’s interests in arriving at the truth in order to bring offenders to justice, avoid wrongful convictions, and provide closure to victims and their families.
Conclusion
[39] Having regard to all of the circumstances, it is my view that Mr. Wright did not have a reasonable expectation of privacy in the results of the GEDmatch search. In my view, a reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy would not find this degree of intrusion by law enforcement to be unreasonable. It follows that Mr. Wright has no standing to challenge the constitutionality of the search or the subsequent use of the information discovered.
[40] The accused also argues that even if he has no privacy interest in the contents of the GEDmatch database, the police failure to obtain prior judicial authorization means that the information flowing from that search must still be excised from the ITO’s in its entirety. He contends that the rule of automatic excision applies even to unconstitutional conduct that does not directly affect his rights.
[41] Assuming this to be a correct statement of the law, it remains that for excision of the information from the ITO, the police action in searching the public database would have to have been unconstitutional. It would have been unconstitutional only if it infringed upon someone’s reasonable expectation of privacy. From the perspective of those persons of the public using the databank, the subject matter of the search was for genetic markers matching the DNA profile uploaded by the police for the purpose of establishing a familial tie. I accept that the using public would have had a direct interest in the subject matter of the search as it involved information from their DNA profiles as uploaded by them. However, given that the very purpose of uploading their DNA profiles to the database was to identify DNA profiles with which they shared genetic markers, it seems unlikely that they would have had a subjective privacy interest in the subject matter of the search. For the same reasons outlined above, they would not have a reasonable expectation of privacy with respect to that information. There being no reasonable expectation of privacy, the police action was not unconstitutional and the information derived need not be excised from the ITO’s.
Issue #2 – the Cast-off DNA Samples
[42] The accused submits that the police acted unconstitutionally in seizing his discarded coffee cup and analyzing it for DNA. Acknowledging that the weight of authority in Canada currently militates against his reasonable expectation of privacy in any of his own cast-off DNA that was seized from the coffee cup, he submits there is no binding law in Ontario on this point and that the time has come to re-evaluate the legal significance of DNA obtained from discarded objects.
[43] To be clear, that police had reasonable grounds to suspect that analysis of the DNA from the cup would afford evidence that would assist them in the investigation of Ms. Sweeney’s death was not contested. What the accused argues is that regardless of those grounds, prior judicial authorization was required.
Vertical Stare Decisis
[44] In R. v. Stillman 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, the Supreme Court of Canada considered the constitutionality of the police seizure of a tissue into which the accused had, while detained by police, blown his nose and discarded into a waste bin. The tissue was seized and subsequently used for DNA testing. In distinguishing between cases in which an item is discarded by a person while in custody versus while not in custody, the court said: “Thus, where an accused who is not in custody discards a Kleenex or cigarette butt, the police may ordinarily collect and test these items without any concern about consent. A different situation is presented when an accused in custody cannot prevent the authorities from taking possession of these items. Whether the circumstances were such that the accused had abandoned the items and relinquished any privacy interest in them will have to be determined on the particular facts presented in each case.”
[45] In my view, this statement by the court is part of the rationale for its decision. As such it would not be obiter dicta, as suggested by the accused, but rather would be precedent which I am bound to follow. Even if obiter, it is a clear statement by our highest court that requires serious consideration.
[46] In R. v. Patrick, 2009 SCC 17, the Supreme Court of Canada specifically considered whether the accused had a reasonable expectation of informational privacy in garbage bags (and the information stored therein) that he had placed out for collection. Recognizing that such garbage can be expected to include such things as DNA, the court held that the accused had abandoned his privacy interest in the contents of the garbage bags and consequently there had been no search and seizure within the scope of s. 8 of the Charter.
[47] I consider these to be binding decisions of the Supreme Court of Canada on the very issue before me.
Horizontal Stare Decisis
[48] If I am mistaken in my understanding of the Supreme Court of Canada’s comments in Stillman and Patrick, it is my view that I am, for the following reasons, also bound by earlier findings by this court that seizure of discarded items for the purposes of DNA analysis is not unconstitutional.
[49] In R. v. Sullivan, 2022 SCC 19, the Supreme Court of Canada had occasion to clarify the law with respect to horizonal stare decisis. The court held that trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances: (1) The rationale of an earlier decision has been undermined by subsequent appellate decisions. This may arise in a situation where a decision has been overruled by, or is necessarily inconsistent with, a decision by a higher court; (2) The earlier decision was reached through carelessness or inadvertence, such as when the decision was reached without considering a relevant statute or binding authority; or (3) The earlier decision was not fully considered, for example where the exigencies of the trial required an immediate decision without the opportunity to consult authority fully.
[50] With respect to the constitutionality of the seizure of discard items for the purposes of analysis of the DNA found upon them, there are decisions of this court on point.
[51] In R. v. Marini, [2005] O.J. No. 6197 the accused challenged the constitutionality of the seizure by police of two ginger ale cans he had discarded while attending court. The accused argued there had been a breach of his s. 8 right to be free from unreasonable search and seizure because he had a reasonable expectation of privacy in his genetic information. Clark J., held that in the absence of direct evidence of the subjective expectation of privacy on the part of the applicant there was nothing from which to reasonably infer that he had an expectation of privacy in his DNA that survived his discarding the can. He also held that any such expectation of privacy would not be objectively reasonable.
[52] In R. v. Merritt, 2017 ONSC 81, the accused persons challenged the police seizure of garbage collected from their residence and from which DNA was analyzed. They argued that even if they were found to have abandoned the garbage, they had not abandoned their privacy interest in their DNA that might be found on any of the items in the garbage. Dawson J. held that abandonment of garbage effectively constitutes abandonment of all private information imbedded in the garbage and accordingly, there was no s. 8 violation in seizing the garbage or in submitting any of its contents for further analysis.
[53] In R. v. Bhogal, 2020 ONSC 7327, the accused challenged the police seizure of a drinking glass he had used at a bar, which police then used for forensic DNA analysis. The defence argued that recent developments in Canadian law cast doubt on the constitutionality of extracting genetic profiles from discard samples. Pomerance J. agreed and undertook the analysis of this issue anew. She concluded that DNA extracted from the drinking glass used by the accused was not abandoned. She determined that it was seized, and the seizure impinged on distinct and important privacy interests. In the absence of binding authority on whether the standard for seizing discard DNA should be one of “reasonable suspicion” without the need for a warrant or “reasonable grounds to believe” with or without a warrant, she elected to apply the standard that put the accused’s constitutional case at its highest.
[54] Justice Pomerance did not have the benefit of Sullivan when she wrote her decision. Although she noted generally that much of the caselaw in Canada supports the view that items abandoned by a person, including the DNA on those items, may be gathered by police without first obtaining a warrant or other authorization, the cases of Merritt and Marini were not considered by her.
[55] Following the analysis prescribed at paragraph 84 of Sullivan I am obliged to look to the substance of Bhogal to determine whether it has been overruled by a higher court, had been decided per incuriam, or had been taken in exigent circumstances. Doing so reveals, as noted above, that Bhogal did not engage whatsoever with the earlier decisions of Marini or Merritt and was therefore a decision per incuriam. As a result, my obligation is to look to Merritt and determine whether on any of these grounds it should not be followed.
[56] It is clear that Merritt was not decided per incuriam and had not been determined in exigent circumstances. The only question is whether the decision has been overruled by, or is necessarily inconsistent with, a decision by a higher court.
[57] In Bhogal, Justice Pomerance identified what she termed a “conceptual shift” in the law. She reasoned that the Supreme Court’s decision in Marakah that control is not an essential pre-condition for privacy allowed for re-examination of the issue of a continuing privacy interest in discarded items containing DNA.
[58] The difficulty with this finding is twofold. Firstly, Justice Pomerance relied upon the following quote from Marakah in support of her decision that a conceptual change in the law was at hand: “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.” However, the very words “the cases are clear” denotes that this has always been the case – that there has been no conceptual change in the law. Secondly, Marakah dealt not with a continued privacy interest in information that had been discarded, but in information that had been shared with another. In my view the decision in Merritt is neither overruled by nor inconsistent with Marakah or any other higher court by which this court is bound.
[59] As a result, horizontal stare decisis requires me to follow Merritt. The result is that the police seizure of the item discarded by the accused and the analysis of DNA found upon it does not amount to an infringement of Mr. Wright’s s. 8 right to be free from unreasonable search and seizure. The same reasoning would apply to the items collected from his family members.
[60] This is not to say that police necessarily have the right to seize cast-off DNA at all times and in all circumstances. The courts by which I am bound have only considered situations in which the police collected cast-off DNA from a person or persons in situations (such as the case before me) in which they have a reasonable suspicion that the resulting DNA analysis will provide evidence that will assist them in the investigation of a crime that has already been committed. In the absence of such a reasonable suspicion, the compelling normative analysis provided by Justice Pomerance in Bhogal and by Justice Abella in Patrick would, I expect, lead to a finding that police acted unconstitutionally.
Issue #3 – the DNA Warrant and the Impression Warrant
[61] As I have determined that the information from both the public data bank and the cast-off DNA was properly included in the ITO’s used to obtain the warrants, I need not consider whether the warrants could have properly issued without that information.
Issue #4- Should the Evidence Be Excluded
[62] As there has been no breach of the s. 8 rights of the accused, there is no basis upon which to exclude the evidence obtained through the warrants that were issued.
Conclusion
[63] Mr. Wright’s application to exclude the evidence relating to DNA and fingerprints seized from him is dismissed.
The Honourable Mr. Justice R.D. Gordon
Released: December 1, 2022
COURT FILE NO.: CR-1087/19
DATE: 2022-12-01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING (Respondent)
– and –
Robert Steven Wright (Applicant)
DECISION ON application
R.D. Gordon J.
Released: December 1, 2022