[1] The appellant appeals from a judgment rendered by the Court of Quebec, District of Montreal (the Honourable Judge Isabelle Rheault), rendered on October 21, 2014, which convicted him on the five counts consisting of three sexual assaults, one sexual assault causing bodily harm and one assault.
[2] For the reasons of Thibault, Vauclair, and Ruel, JJ.A., THE COURT:
[3] DISMISSES the appeal.
[4] For his part, Vauclair J.A. dissents on a question of law. He concludes that the police operation in obtaining the appellant’s DNA was done in violation of section 8 of the Charter but he refuses to exclude the evidence as per section 24(2) of the Charter.
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REASONS OF VAUCLAIR, J.A. |
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[5] Is the state free to collect the DNA of persons under suspicion of criminal activity by tricking them into giving up their DNA, keeping those samples indefinitely and using them as they see fit, without any prior authorization and without supervision of any kind? This is one of the many questions raised by this appeal.
[6] The appellant was suspected of having committed sexual assaults on four women who were sex workers. He was charged and convicted of three counts of sexual assault, one count of sexual assault causing bodily harm and one count of assault on four different victims. The events occurred in 2002, 2003, 2004 and 2005.
Background
[7] Between 2002 and 2005, in Montreal, the four complainants were victims of sexual assault. On the evidence, these facts set the background.
[8] In 2002, J. H. (H.) was assaulted and thrown out of a black truck. A witness at the scene called the police and the vehicle bearing the licence plate number [...] was intercepted moments later with the appellant at the wheel. That vehicle belonged to the appellant’s father. The victim, intoxicated at the time, did not collaborate with the police. Police surveillance of the appellant yielded some pictures of him, but nothing else.
[9] In 2003, L. N. (N.) and, in 2005, C. G. (G.) were also sexually assaulted and they reported the assaults to the police. N. gave a plate number: [...]. Both were brought to the hospital for forensic examination. In each case a forensic evidence kit was used and “crime scene DNA” was found and kept.
[10] In 2008, the murder of Nicole Blanchette (Blanchette) came to the attention of the Montreal Police Sexual Assaults Unit. Blanchette was also a sex worker in downtown Montreal and her murder, according to the police, recalled the modus operandi of the sexual assault cases outlined above. The appellant was a suspect in these cases.
[11] At that time, the police knew from preliminary forensic analysis that DNA comparisons with the Blanchette murder excluded without doubt the appellant as the perpetrator. In fact, the murderer eventually confessed and pled guilty.
[12] Nevertheless, with the objective of retrieving “abandoned DNA”, police followed the appellant to no avail. Consequently, they imagined a scenario to get the appellant’s DNA. Deploying an undercover police officer, they succeeded. It is the object of one of the grounds of this appeal and I later give more details regarding this issue.
[13] No judicial authorization was requested. The “abandoned DNA sample” was processed through the “crime scene index” of a “Local DNA Data Bank”, as opposed to the “National DNA Data Bank” established by the DNA Identification Act, SC 1998, c 37. Indeed, the evidence shows that police forces in the Province use a “Local DNA Data Bank” organized by the Quebec forensic science laboratory (“Laboratoire de sciences judiciaires et de medicine légale”, hereinafter “the Laboratory”).
[14] DNA forensic analysis and comparisons were requested and done with the “abandoned sample”. There was a match and a possible match with the G. and N. sexual assault cases.
[15] On July 16, 2008, the appellant was arrested and a warrant for DNA samples was obtained.
[16] The police reactivated the file of Cl. F. (F.). She testified to a sexual assault by the appellant in June of 2004. He was a returning client and she knew him by name. At the time, she reported the assault to a community support group for sex workers in order to issue a general warning. She had written down the plate number [...] after the assault.
[17] At trial, many voir dires were held. Among others, the trial judge dismissed an O’Connor motion, a motion to separate the indictment, a motion to exclude the DNA evidence and a motion to exclude prior extrajudicial statements from G., deceased shortly before the trial begun. The trial judge granted the Crown’s motion to admit similar fact evidence, consisting of the different counts of the indictment.
Grounds of appeal
[18] The appellant raises eight questions on appeal:
I. Did the Honourable Trial Judge err in failing to order the full disclosure of the evidence contained in the Nicole Blanchette murder investigation file?
II. Did the Honourable Trial Judge err in dismissing the appellant’s motion to sever the counts of the indictment?
III. Did the Honourable Trial Judge err in admitting into evidence the results of the analysis of the Appelant’s DNA?
IV. Did the Honourable Trial Judge err in permitting the prosecution to lead similar fact evidence?
V. Did the Honourable Trial Judge err in admitting into evidence four out of court statements made by G. and convicting the appellant of her sexual assault as a result?
VI. Did the Honourable Trial Judge err in convicting the appellant of the sexual assault and threatening of H.?
VII. Did the Honourable Trial Judge err in finding that identification, in the case of N., had been proven beyond reasonable doubt?
VIII. Did the Honourable Trial Judge err in the evaluation of the evidence regarding the alleged sexual assault of F.?
[19] Because grounds V and VI have bearing on ground IV, I will invert their order.
[20] As I will explain, I find that the police obtained the appellant’s DNA illegally, but that the evidence, however, should be admitted. I will not give effect to the other grounds and consequently, I propose to dismiss the appeal.
I. Non-disclosure of the Murder Investigation File
[21] The murder of Blanchette was resolved with the conviction of Bernard Armelin, who confessed to the crime. At trial, the appellant sought the disclosure of the police investigation file on Armelin, because the investigators had initially seen a similar modus operandi between that murder case and two of the sexual assault cases brought against the appellant.
[22] On September 29, 2011, invoking Stinchcombe, [1995] 1 S.C.R. 754 and after holding a voir dire, the trial judge ordered the disclosure of the information concerning the appellant directly in the Armelin murder file. The judge found that the information did not add much to the evidence already disclosed. The trial judge took the two-step approach set out by the Supreme Court in O’Connor, [1995] 4 S.C.R. 411 and McNeil, [2009] 1 S.C.R. 66. She decided that the appellant had met his burden to show that the evidence was likely relevant, but after reviewing the file, she concluded that there was no true relevance in the case against him.
[23] The appellant advances a general argument pertaining to the relevance of this investigation file. He does not argue that the trial judge erred in law. The appellant, however, did not provide the Court with the documentation reviewed by the trial judge, and it is therefore impossible for the Court to examine the relevance of its content. In this context, the argument of the appellant must fail.
[24] Further, the appellant argues that the trial judge erred when she did not reconsider her initial decision after she allowed third-party suspect evidence to be adduced. True, three years later, on April 24, 2014, the trial judge did authorize such evidence. Appellant sees these decisions as contradictory.
[25] The appellant does not suggest that he reiterated his disclosure demand after the latter decision. Without deciding if the proposed defence could have been sufficient to revisit the first disclosure decision, it is not for a judge on his or her own initiative to reopen decided issues. The appellant did not pursue the matter before the trial judge and therefore cannot raise this issue on appeal. Thus his argument must fail.
II. Refusal to Sever the Counts
[26] The decision to sever the counts or not is within the discretion of the trial judge, the exercise of which must be guided by the interest of justice. In Last, [2009] 3 S.C.R. 146, at para. 16, the Supreme Court wrote:
[16] The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.
[27] The application to introduce similar fact evidence and the severance application share some resemblance. In the latter, the onus is on the defence to convince the judge to sever counts, while in the former it is on the Crown: see Cartier, 2015 QCCA 329, at para. 44. The “test for admitting similar fact evidence is more stringent…than the test for determining whether multiple counts should be joined or severed”, since the judge needs only, “to assess whether [the former] could “possibly” be met in the future”: Blacklaws, 2012 BCCA 217, at para. 42, confirmed at [2013] 1 S.C.R. 403.
[28] While the test and the burden are different, the use of similar fact evidence at trial is a factor that helps capture how the interests of justice may be served without creating prejudice to the accused: “[i]n many cases a ruling allowing similar fact evidence will favour a joint trial since the evidence on all incidents would have to be introduced in any event.”: Last, [2009] 3 S.C.R. 146, at para. 33; Cartier, 2015 QCCA 329, at para. 52; Laporte (PLR), 2016 MBCA 36, at para. 117; Mastronardi, 2014 BCCA 302, at para. 27; Gamble, 2014 SKCA 101, at paras. 10-11; Waudby, 2011 ONCA 707, at para. 4.
[29] The Crown’s intention to introduce similar fact evidence was an important consideration in refusing the severance application. In my view, no other factor standing alone would have justified a joint trial. Correctly applying Arp, [1998] 3 S.C.R. 339, at para. 52 and Handy, 2002 S.C.R. 908, at para. 43, the trial judge acknowledged that:
[7] All four alleged victims were prostitutes who were picked up by a white man driving a black truck, with grey or beige interior.
[8] For three of the alleged victims, a licence plate was noted, which refers to the accused's father.
[9] On one occasion, the accused was arrested shortly after the police had been called, behind the wheel of a truck bearing that particular licence plate.
[10] Three of the alleged victims were abruptly sodomised without their consents.
[11] DNA (although an issue in this matter), presumably belonging to the accused, was found inside the pants of one of the alleged victims, and inside the rectum of another one. (see MS-7)
[12] The Crown will eventually ask for a similar facts evidence motion to be granted and will do so as well, should the severance motion be accepted.
[13] This motion for similar facts evidence will be requested to show a system, a "modus operandi", a pattern of behaviour, not for the purpose of identifying the accused.
[14] At this stage, there is a probable possibility that such a motion would be likely to succeed, "the high degree of similarity" rendering "the likelihood of coincidence objectively improbable".
[30] The trial judge was only required, at that stage, to conclude that it was possible that the test for similar fact evidence could be met later: Cartier, 2015 QCCA 329, at para. 44. In my view, she did so without error. The trial judge then turned her attention to the accused’s intention to testify, another factor to be balanced in determining whether the counts should be severed. To that end, she stated that the burden rests on the accused to “provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention”: Last, [2009] 3 S.C.R. 146, at paras. 26-27. She concluded that the appellant did not meet his burden.
[31] The trial judge also assessed other factors. She considered the common DNA evidence, the fact that the trial was proceeding before a judge sitting without a jury and, finally, the benefit to the administration of justice, which revolved mostly around the admissibility of similar fact evidence.
[32] The trial judge also considered —and the appellant contends that she attributed too much weight to this factor— the vulnerability of the potential witnesses and the fact that severing would cause considerable delays. I agree with the appellant that the trial judge emphasized the need to accommodate the victims and to avoid delays. The respondent, however, is correct in holding that “society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner” is an important consideration in this analysis: see Last, [2009] 3 S.C.R. 146, at para. 16, Cross (1996), 112 C.C.C. (3d) 410 (Que. C.A.). Even if these factors are relevant to the analysis, the judge “must consider and weigh cumulatively all the relevant factors to determine whether the interests of justice require severance”: Last, [2009] 3 S.C.R. 146, at para. 44. Here, the trial judge committed no error.
[33] As the Supreme Court said, “[o]n an application to sever a multi-count indictment, the overarching criteria are the interests of justice”: Last, [2009] 3 S.C.R. 146, at para. 1. The decision to join or sever an indictment is highly discretionary for both the Crown and the judge. When a judge acts judicially and the ruling does not result in an injustice, deference is required on appeal. In other words, absent an error on a question of law or an unreasonable decision, an appeal court will not intervene. No such errors were made in this case.
III. Admission into Evidence of the Appellant’s DNA Analysis
[34] This appeal calls for an analysis of the constitutionality of the way in which police obtained the appellant’s DNA. In Usereau, 2010 QCCA 894, my colleague Hilton wrote:
48 Mr. Usereau, however, goes further and contends that the collection of DNA evidence in this manner can give rise to legislatively unauthorized covert banks of DNA evidence over which no control can ever be exercised. This apocalyptic view is highly speculative at best. There is no evidence that any such covert banks exist or have ever existed. Nor is there a risk that DNA profile obtained without a warrant under the regime provided for in the Criminal Code will be permanently maintained as if they had been obtained with a warrant and their destruction not subsequently ordered.
49 […] The time to consider the legality of samples maintained in a covert bank will arise if and when it is established that such a bank exists, and an accused applies to exclude evidence derived from the use of his or her DNA samples in such a bank.
[35] It seems that the time has come.
[36] There is merit to this ground. It involves the difficult question of whether police are authorized to actively gather “abandoned” DNA from citizens they suspect of being involved in criminal activity, to keep the DNA samples indefinitely and use them as they see fit.
Background
[37] At trial, the appellant argued the illegality of the investigative tactic, which compelled him to “abandon” his DNA and contested the use of his DNA analysis to incriminate him, thereby claiming a violation of his ss. 7 and 8 Charter rights.
[38] How the police obtained the appellant’s DNA was not contested on the voir dire.
[39] DNA was found on the “crime scenes” of the G. and N. sexual assault cases in 2003 and 2005 respectively. The appellant was a suspect. In 2008, another victim was found dead. As I already outlined, a detective from the Montreal Police Sexual Assaults Unit saw a similarity in the modus operandi, between the homicide and the other cases and informed his colleagues of the Major Crimes Unit handling the murder case.
[40] On April 9, 2008, police were told that there was no DNA correspondence between samples found on the N. “crime scene” and on the Blanchette “crime scene”.
[41] On April 9 and April 11, 2008, police followed the appellant in the hope that he would “abandon” some of his DNA, but to no avail. Police then set up a scenario to obtain his DNA. They arranged a false business meeting with the appellant who operated a small Internet-related services company. After an initial contact, another meeting was set in a café. The undercover police officer and the appellant talked business while each drank a cup of coffee. At one point, the undercover police officer rose to clear the table and took the appellant’s coffee cup to the counter for a colleague to pick it up. Police considered that the appellant “abandoned” his DNA at the café.
[42] The cup was sent to the laboratory and a DNA sample was obtained.
[43] Police asked to compare it to the DNA sample from the Blanchette murder case and from the N. sexual assault case. It did not match the DNA samples in the murder file and thus, the appellant was eliminated as a suspect in that file.
[44] However, it revealed a possible match with the N. case. It was also processed through the “crime scene index” of the “Local DNA Data Bank” and further comparisons were made. A match with the G. case was established.
[45] Several months later, police obtained a warrant to take bodily substances for forensic DNA analysis pursuant to s. 487.05 Cr. C. It confirmed the previous findings and further analysis confirmed that the appellant’s DNA matched the DNA found in the N. case.
[46] Léo Lavergne (Lavergne) testified on the voir dire. He is the administrator of the National DNA Data Bank for Quebec. He explained how the DNA Identification Act structure works, how samples of DNA, whether a single source or a mixed profile (DNA from more than one individual), from unknown sources are uploaded and updated from local data banks to the National DNA Data Bank for forensic comparison with the DNA profiles of convicted criminals. These profiles, however, are not kept in local banks and cannot be accessed at the local level. It is the responsibility of the Laboratory to feed the National DNA Data Bank with DNA materials.
[47] Lavergne also explained the operation of the Local DNA Data Bank. In Quebec, the Local DNA Data Bank has existed since 2006. Equivalents are found in Vancouver, Edmonton, Regina and Ottawa. These data banks essentially compile and keep various DNA samples that are not or cannot be shared with the National DNA Data Bank.
[48] The National DNA Data Bank contained, and was limited to at that point in time, the “Crime Scene Index” and the “Convicted Offender Index”. In a nutshell, the first index contains DNA profiles derived from bodily substances found on designated offences’ crime scenes, thus DNA from potential perpetrators of the crime. The second index contains DNA profiles derived from bodily substances of convicted offenders of designated offences taken pursuant to judicial authorizations. Comparison of DNA between the two indexes may reveal the implication of a convicted offender in an unresolved crime, where DNA was collected at the crime scene. Police are then able to obtain that person’s DNA with a judicial authorization or with the person’s consent. The witness also explained that local data banks do not have access to the Convicted Offender Index.
[49] Police may also obtain a warrant to collect someone’s DNA but it will be compared only to the sample or samples found on the specific crime scene to which this person is connected. The witness acknowledged that the law provides for a rigorous destruction schedule of bodily substances when, as a result of the analysis, a person is no longer a suspect in the relevant investigation.
[50] All local authorities have the responsibility to “upload”, through communication technology, the needed DNA samples to the National DNA Data Bank, creating thereby a national library of DNA found on crime scenes to be compared with DNA samples as the law permits and only as the law permits.
[51] Some DNA samples are not uploaded to the National DNA Data Bank. For instance, the witness explained that “complex mixture of DNA profiles from unknown sources” are not uploaded in the National DNA Data Bank, to avoid overloading it. Those samples are kept at the local level.
[52] The Local DNA Data Bank compiles all DNA from Quebec crime scenes, from deceased victims and DNA not kept at the national level. One index consists of “abandoned” DNA samples, the “Discarded Sample Index”. It is composed of DNA collected during police surveillance or during police interrogation of an individual.
[53] All samples are associated with a reference number, connecting them to the police investigation file where nominal information is available for identification. All data is shared with other local data banks across the country.
[54] Indeed, Lavergne explained that the National DNA Data Bank — as it was operated at the time under the law; amendments came into effect in March of 2018 — limits the comparison possibilities to three categories of DNA samples: obtained from a suspect with a judicial warrant, voluntarily submitted by a suspect and obtained from a convicted offender. Only the latter, however, is part of the National DNA Data Bank.
[55] Thus, “abandoned” DNA samples from police suspects are kept indefinitely in local DNA database for future comparisons until they yield a match. To be clear, Lavergne testified that if police followed 26 suspects of one sexual assault, picking up 26 used and “abandoned” Kleenex tissues, but only one DNA sample yielded a match, all the other DNA samples would remain in the Discarded Sample Index. These samples are compared on a regular basis with DNA samples retrieved from crime scenes and thus may reveal a match in any future investigation.
[56] Lavergne further testified that the Local DNA Data Bank had accumulated 500 to 550 “abandoned” DNA profiles. Since 2006, the Discarded Sample Index profiles yielded 68 matches. Of those, annually, only four or five discarded samples are found to match a real unknown sample found on a crime scene.
[57] The following two questions and answers summarize the explanations of the witness:
Q. Okay. So if a judge issues a DNA warrant and the suspect is excluded for the crime under investigation, the lab is required to destroy the sample and remove the records?
A. That’s right.
Q. But if the same judge refuses to issue the warrant and the police collect the discard sample, then that sample can stay in the lab and be compared for years to come?
A. That’s right.
[58] According to the witness, the Laboratory operates on the opinion that the legality of local banks is founded on the decision of Barlow, 2004 Carswell Ont 11494 (Ont. S.C.J.). The Crown shares that opinion and it also appears that those reasons form the basis for the trial judge’s decision on that aspect of the case.
The Trial Judge’s Decision
[59] At trial, the appellant presented a motion to declare that his ss. 7 and 8 Charter rights had been violated, to annul the section 487.05 Cr. C. warrant and to exclude the evidence obtained as a result of the analysis of his DNA.
[60] The trial judge dismissed the motion: D’Amico, 2013 QCCQ 20909. The trial judge did not agree that police collecting the coffee cup to obtain the appellant’s DNA violated s. 8 of the Charter, nor did she find that the method used violated s. 7 of the Charter. She consequently confirmed the validity of the warrant and refused to exclude the DNA evidence.
[61] The trial judge held that police took adequate precautions before setting up the scenario to collect the appellant’s DNA sample. She wrote: “[t]he homicide police officers took precautions before, as they had some advice from a senior crown prosecutor. They didn't circumvent the application of 484.04 ss. as, quite obviously, there were no sufficient grounds for a DNA warrant to be granted under these sections at the time, although D'Amico was a suspect in a murder case.”: D’Amico, 2013 QCCQ 20909, at para. 42 (my emphasis).
[62] After narrating the police operation, which she found to have been carried out in good faith with the advice received from senior counsel, the trial judge noted that subterfuges do not equate to improper elicitation, citing Nguyen, 2002 CanLII 44910 (Ont. C.A.), Hebert, [1990] 2 S.C.R. 151 and Broyles, [1991] 3 S.C.R. 595.
[63] The trial judge wrote:
[27] The key issue here is abandonment. The Court refers to Patrick, [2009] 1 S.C.R. 579 (referring itself to Stillman, [1997] 1 S.C.R. 607 and Dyment, [1988] 2 S.C.R. 417 Tessing, [2004] 3 S.C.R. 432).
[28] From these cases, it is quite clear that abandonment is fatal to a reasonable expectation of privacy.
[…]
[31] Thus, the focus must be on the conduct of the appellant and whether a reasonable and objective person, considering the totality of the circumstances would think that the cup was abandonment.
D'Amico, 2013 QCCQ 20909, at. paras. 27-28, 31 (emphasis added).
[64] The trial judge focussed her reasoning on the concept of “abandonment” and the conduct of the appellant. She insisted on the absence of any dirty trick on the part of the police and of any infringement to the physical integrity of the appellant, and thus concluded to the legitimacy of obtaining the coffee cup and the appellant’s DNA. Indeed, she noted that the appellant was not in custody, he was not even offered a coffee by the undercover agent, but he decided to have one. In addition, he was not compelled to discard the cup and he had no intention of keeping it.
[65] According to the trial judge, it was obvious that police did not have reasonable grounds to obtain a warrant as per section 484.04 of the Criminal Code, but the appellant was suspected of murder, a designated offence.
[66] The trial judge applied the principles laid out in Patrick, [2009] 1 S.C.R. 579 to conclude that “abandonment is fatal to a reasonable expectation of privacy”: 2013 QCCQ 20909, at para. 28. She evaluated the totality of the circumstances to determine whether there had been “abandonment” in this case. She wrote:
[34] Even if D'Amico was tricked into a scenario, considering all the circumstances, the undercover operation was a passive trick, not a dirty trick that would shock the community.
[67] The trial judge then turned her attention to the ruling of the Supreme Court in Rodgers, [2006] 1 S.C.R. 554, at para. 44: “The data bank provisions strike an appropriate balance between the public interest in the effective identification of persons convicted of serious offences and the rights of individuals to physical integrity and the right to control the release of information about themselves.”
[68] Further, the trial judge found that the collection of discarded samples is “not submitted to the DNA warrant scheme of the Criminal Code” and “no judicial authorization applies”: D'Amico, 2013 QCCQ 20909, at. paras. 75 and 79. She concluded that the Laboratory did not create “secret data banks”: D'Amico, 2013 QCCQ 20909, at. paras. 80-81. In her opinion, the Local DNA Data Bank only compiles abandoned DNA for which there is no expectation of privacy and consequently, she held that the Discarded Samples Index is legitimate and not illegal.
[69] That being, she decided that the warrant was validly obtained and that there was no violation of s. 8 of the Charter. Given those findings, the trial judge did not consider it necessary to address the test of paragraph 24(2) of the Charter.
Position of the Appellant
[70] The appellant contends that his s. 8 Charter rights were violated when the police took a DNA sample from a discarded coffee cup. Further, he argues that the method used violated ss. 7 and 8 of the Charter, that therefore the warrant obtained was invalid and finally, that his DNA samples should be excluded from the evidence in accordance with s. 24(2) of the Charter.
[71] In sum, the appellant argues that he maintained an expectation of privacy in relation to his DNA found on the coffee cup. He contends that the analysis adopted by the trial judge was limited to the question of whether the appellant “abandoned” his DNA, which was only one of the factors she should have considered. Citing justice Binnie in Patrick, [2009] 1 S.C.R. 579, at para. 14 and M.(A.), [2008] 1 S.C.R. 569, at para. 33, he presses that the concept of reasonable expectation of privacy is a normative standard, not simply descriptive and its interpretation depends on the interests it protects.
[72] In addition, the appellant says that DNA is inevitably left behind by citizens and that it is unreasonable to let the state collect it and store it forever in databases for possible future use. Referring to S.A.B., [2003] 2 S.C.R. 678, at para. 48, the appellant notes in his factum that “DNA undoubtedly reveals the ‘highest level of personal and private information’ about an individual.”
[73] Therefore, the appellant argues that such a search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. He argues that police plainly circumvented the legislative regime on collecting and using DNA. IN his factum, the appellant says that “Parliament deliberately placed bulwarks to protect the presumed innocent from both unwarranted invasions of their privacy and the permanent surrendering of deeply revealing biographical information to the state.”
[74] In his view, allowing the method used to obtain a DNA sample from him and the following analysis conducted through the Local DNA Data Bank “would be to provide [the police] with a licence to engage in the systematic and indiscriminate collection of the DNA of citizens.”
[75] The appellant proposes general guidelines. He would not contest that law enforcement be allowed to collect a discarded DNA sample from an individual, whom they objectively and subjectively reasonably suspect of being involved in the commission of a designated offence, where a comparison of his DNA with samples collected during the investigation of that offence would assist in its resolution. If no link is established, however, the sample would have to be destroyed without delay. This police power would be subject to extensive note-taking obligations and prompt notification to the biological bearer of the DNA.
[76] In the end, he submits that the analyses leading to matches with the N. and G. cases were not “targeted analysis,” but the result of an indiscriminate search throughout the entire database.
[77] Invoking s. 7 of the Charter, the appellant says that liberty and security of the person are at play. In his factum, he argues that “it should be recognized as a principle of fundamental justice that the DNA of citizens benefiting from the presumption of innocence cannot be collected and analyzed by law enforcement without (1) proper supporting grounds (2) proper oversight and without (3) being justified by a specifically identified and reasonably based investigation.” Thus, DNA should not be kept unless the result of its analysis constitutes relevant evidence in the context of the precise investigation for which the sample was collected.
[78] Since no grounds existed before the illegal seizure of the appellant DNA, the appellant contends that none existed to sustain the information to obtain (ITO) the s. 487.05 Cr.C. warrant once the tainted evidence is not considered.
[79] Accordingly, the appellant suggests that the DNA evidence should have been excluded from his trial pursuant to s. 24(2) of the Charter, having regard to the principles enunciated by the Supreme Court in Grant, [2009] 2 S.C.R. 353. According to him, the infringement on his rights was very serious, the impact on his Charter-protected interests favours the exclusion, and although the evidence sought to be excluded is reliable and material, the appellant asserts that “this is one of the cases where the long-term repute of the administration of justice, in conjunction with the first two factors of the Grant test, militate in favour of the exclusion of the impugned DNA evidence.”
[80] The effect would be an acquittal on count 2 of the indictment (the G. sexual assault case) and a re-evaluation of the evidence under count 3 (the N. sexual assault case).
Position of the respondent
[81] The Crown presents a very succinct argument resting exclusively on the concept of “abandonment”: Stillman, [1997] 1 S.C.R. 607 and Patrick, [2009] 1 S.C.R. 579. The Crown sees an analogy between the present case and Delaa, 2009 ABCA 179, where the accused spat “his chewing gum into a Dixie cup during an undercover police operation to obtain DNA evidence”: at para. 1; and also refers to Canada (Procureur général) c. Goodleaf, 1997 CanLII 9982 (CAQ).
[82] The Crown argues that the behaviour of the appellant was inconsistent with any privacy interest in the cup, an expectation he could not have in the circumstances, because “expectation of privacy must be made without reference to the conduct of the police during the impugned search”: Edwards, [1996] 1 S.C.R. 128, at para. 33. The Crown further suggests that the DNA was “gathered, not seized”: Dyment, [1988] 2 S.C.R. 417, at para. 31.
[83] In any event, the Crown says that the DNA analysis that led to a match in the N. case was obtained in a way that respects the test enunciated by the appellant, the N. case being one of the investigations in which the appellant was a suspect when his DNA was collected.
[84] The Crown relies exclusively on abandonment and does not otherwise try to justify the state action, if only to mention the decision in Barlow, 2004 Carswell Ont 11494 (Ont. S.C.J.).
[85] In the Barlow ruling, the Ontario Superior Court decided that the police could recover discarded cigarettes butts left behind in the polygraph room by an accused who had voluntarily passed the test. Although details are scarce in the decision, the ratio was that Barlow was not set up to come and pass the test. He voluntarily participated, smoked and left the butts behind. His DNA was collected and retained, and used against him many years after. Although the Court discusses the local data banks, it did not have the benefit of the Supreme Court decision in Rodgers, [2006] 1 S.C.R. 554.
[86] The Crown contends that the violation, if any, is of minor gravity. It underlines that police acted in good faith, based on case law that existed at the time: Usereau, 2010 QCCA 894; Legere, [1994] A.N.-B. 579 (C.A.); Good, [1995] B.C.J. No. 2853 (Sup.Ct.); Titian, [1998] B.C.J. No. 2993 (C.A.); F.(D.M.), (1999) 139 C.C.C. (3d) 144 (C.A. Alb.); Johnson, [2004] M.J. No. 109 (Q.B.); Marini, [2005] O.J. No. 6197 (Sup. Ct.); Delaa, [2006] A.J. No. 948 (Q.B.); R. c. Macryllos, [2007] J.Q. no 11429 (C.S.).
[87] Further, it stresses that the evidence is reliable and material, that it was created without the participation of the state, gathered without any violation of the appellant’s physical integrity, as well as being essential to a determination on the merits. Finally, it asserts that the crimes are serious and the public interest in the adjudication of the case on the merits weighs strongly in favour of its admission.
Analysis
[88] The appellant’s argument can be fully answered by resorting exclusively to s. 8 of the Charter: Mills, [1999] 3 S.C.R. 668; Rodgers, [2006] 1 S.C.R. 554, at para. 23. Accordingly, I do not see the necessity of discussing similar issues raised under s. 7 of the Charter.
[89] As I already mentioned, the concept of “abandonment” is central to this appeal and, because it has the potential of evacuating any useful arguments on a Charter breach, I will first explain why there was no abandonment.
[90] If there are exceptions where DNA “abandonment” is possible, none apply in this case. If the police have a power to collect non-abandoned DNA from a suspect, with due respect for the contrary opinion, it would require articulating and putting some safeguards into place. There were none proposed on this appeal and I find that it would be a matter best left to Parliament.
(1) The Appellant Did Not Abandon His DNA
[91] The trial judge concluded, and it is not disputed on appeal, that there were no reasonable grounds to obtain a warrant, be it a DNA warrant or any other warrant. Reasonable grounds were simply lacking; the police only had informed suspicion. Hence, “abandonment” would be the only justification to the state’s power to collect the appellant’s DNA in the present case. “Abandonment” is the cornerstone of both the trial judge’s and the Crown’s positions. They conclude that the appellant abandoned the coffee cup and any privacy interest he had in it. Therefore, the police were allowed to collect it and use it at will.
[92] With respect, this position oversimplifies the important privacy interest vested in a person’s DNA and overlooks the true nature of the “thing” seized. While resorting to the concept of “abandonment,” the trial judge failed to consider all the circumstances in determining whether the item seized was, in fact, abandoned.
[93] In particular, the key issue for the trial judge was that the coffee cup was abandoned: D'Amico, 2013 QCCQ 20909, at para. 31. The respondent does not see any error. Respectfully, they both fail to identify the true subject matter of this search: Spencer, [2014] 3 S.C.R. 212, at paras. 30-31; Kang-Brown, [2008] 1 S.C.R. 456. What needed to be determined was if the appellant’s DNA information had been abandoned, not the coffee cup.
[94] It is undisputed that when no reasonable privacy interest exists, no protection is afforded and, when one truly abandons something, no privacy interest may be claimed: Patrick, [2009] 1 S.C.R. 579, at paras. 22-23. As Binnie J. wrote, when an item is truly abandoned, it is abandoned as a whole “whatever private information was embedded therein”: at para. 2.
[95] As regards the definition of someone’s expectation of privacy, courts must remember that “[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”: Patrick, [2009] 1 S.C.R. 579, at para. 14.
[96] 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] 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.
[97] 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.
[98] The case of Fearon, in some way, is illustrative of the contextual nature of the analysis. Cromwell J. explained that a cell phone left unlocked “does not indicate any sort of abandonment of significant privacy interests one generally will have in the contents of the phone”: Fearon, [2014] 3 S.C.R. 621, at para. 53. Abandonment does not flow automatically from behaviour that may be interpreted as such when the subject matter generally bears a significant privacy interest. In Villaroman, Greckol and Strekaf JJ.A. aptly wrote and I agree that “[p]rivacy is not an all-or-nothing concept”: Villaroman, 2018 ABCA 220, at para. 3.
[99] In my view, the same applies to DNA. Not only because that “thing” may reveal the most personal information about an individual and is therefore replete with privacy interest, but because one abandons “it” everywhere, all the time without even giving the slightest thought to it. It is “the inevitable consequence of the normal functioning of the human body”: Stillman, [1997] 1 S.C.R. 607, at para. 58. One simply cannot infer, from the being of a person, one’s intention to abandon the privacy interest in one’s DNA information.
[100] In Stillman, the Court had to decide whether the state could collect waste “discarded” by a detainee and analyse it to get his incriminating DNA profile. Stillman was in police custody and “the police seized a tissue, used by the appellant to blow his nose, from the garbage bin in the washroom of the RCMP headquarters”: Stillman, [1997] 1 S.C.R. 607, at para. 52. In the discussion on whether Stillman abandoned the tissue, the Court distinguished the situation of a detainee and a person who is at liberty, stating in an obiter that when a person who is not in custody discards an item containing bodily fluids, “the police may ordinarily collect and test these items without any concern about consent”: Stillman, [1997] 1 S.C.R. 607, at para. 62.
[101] However, Stillman was detained and the Court was not called upon to fully canvass the situation of the non-detained person, as the issue was not before it. This distinction was too briefly addressed in Stillman; more nuances are necessary.
[102] First, while the majority acknowledged decisions where DNA had been “gathered” rather than “seized”, it did not formally confirm those decisions. They served to differentiate the custodial reality applicable to Stillman’s situation.
[103] Second, it is noteworthy that the respondent Crown in Stillman downplayed the role of the police in acquiring the tissue, arguing that: “[n]ot only is this not a case where the police engineered the taking it is not even a case where the police, by design, deliberately afforded themselves the opportunity to make such observations. What the police did was take advantage of an otherwise unforeseen occurrence”: Stillman, [1997] 1 S.C.R. 607, at para. 57.
[104] The Supreme Court came to a different conclusion. It held that, with the detention of Stillman, the police “deliberately afforded themselves the opportunity” to get the DNA, and the Court found that to be impermissible.
[105] Third, the analysis being contextual, there may be other variables to consider when police find a substance or material evidence susceptible to reveal DNA on a crime scene: see LeBlanc (1981), 64 C.C.C. (2d) 31 (N.B.C.A.), a pre-Charter case, where blood from an intoxicated driver was “collected” from the front seat of a car after the accident. Also, police now routinely collect DNA without a warrant on crime scenes when available; indeed, this collected DNA constitutes one of the indexes of the National Data Bank.
[106] Leaving behind items while fleeing from police may also call for a different approach: see Canada (Procureur général) c. Goodleaf, 1997 CanLII 9982 (QCCA); Nesbeth, 2008 ONCA 579; L.B., 2007 ONCA 596. That is not, however, the factual background in this appeal.
[107] Fourth, the majority in Stillman stressed that for “an accused person […] in custody, the production of bodily samples is not an unforeseen occurrence. It is simply the inevitable consequence of the normal functioning of the human body. The police are only able to profit from the production of the samples because the accused is continuously under their surveillance. For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody”: Stillman, [1997] 1 S.C.R. 607, at para. 58 (emphasis added).
[108] Fifth, the majority was concerned that “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”.”: Stillman, [1997] 1 S.C.R. 607, at para. 59 (emphasis in original).
[109] Sixth, the Supreme Court majority so concluded despite the fact that, being in custody, Stillman had a lower expectation of privacy. The Court noted that “privacy expectation should not be reduced to such an extent as to justify seizures of bodily samples without consent, particularly for those who are detained while they are still presumed to be innocent”: Stillman, [1997] 1 S.C.R. 607, at para. 61.
[110] Surely, these reasons matter. The application of the Stillman case turns on more than the simple fact that a person is detained or not. I do not see the fundamental distinction between custody and constant surveillance of a suspect by police to “gather” his or her DNA. In both cases the state is deliberately affording itself the opportunity to obtain the person’s DNA it would otherwise need an appropriate warrant. Someone who is at liberty shares the same presumption of innocence as someone who is detained, but enjoys a full expectation of privacy. That person does not “implicitly” consent to a search or to the abandonment of his or her DNA. DNA samples do not come about through “happenstance” because someone is continuously under police surveillance. There are no fundamental differences between constant surveillance of a detainee and constant surveillance of a citizen at liberty. Only the setting is different, the control exercised by the police is the same. In this context, I respectfully fail to see any difference.
[111] It is helpful in my opinion to analogize the facts of the present case to the facts in Duarte. In that case, a police informant and undercover police officer installed audiovisual recording equipment in the wall of an apartment where they met with Duarte and discussed a cocaine transaction. The informer and the undercover officer consented to the interception of their conversations, thereby not “intercepting” the conversation. Thus, the question was to determine if “participant surveillance” infringes s. 8 of the Charter. What the Court said about the interception of spoken words can have some bearing on the situation of the DNA one leaves behind through the normal functioning of one’s body. About electronic surveillance, the Court wrote that its regulation does not protect against “the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words”: Duarte, [1990] 1 S.C.R. 30, at p. 44.
[112] The Court thus explained the need for protection against the limitless discretion of the state in spying. The following passage is equally relevant to collecting DNA and setting up uncontrolled data banks:
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: "Electronic surveillance is the greatest leveler of human privacy ever known." If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.
Duarte, [1990] 1 S.C.R. 30, at p. 44.
[113] That discussion in Duarte also answers the argument of my colleague Ruel when he says that any person ought to know his or her DNA is abandoned, all the time, everywhere. Respectfully, one does not renounce a protected privacy right because one ought to know that the State may acquire the protected information.
[114] The statement of the Supreme Court in Stillman, [1997] 1 S.C.R. 607, to the effect that “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”, at para. 62 (emphasis added), may well be nuanced in a near future, especially in view of the word “ordinarily” used by the Supreme Court. Of course, as stated in Henry, [2005] 3 S.C.R. 609, there is no strict demarcation between the narrower and binding ratio decidendi of a case, and obiter that are not.
[115] Further, the decision of this Court in Usereau, 2010 QCCA 894, applying Stillman, stated that police could pick up a discarded item by the appellant, namely a glass and a straw in a restaurant garbage bin, while they had him under passive surveillance. As I understand Usereau, the object was abandoned and consequently, the police could collect it to legitimately gain access to the person’s DNA profile.
[116] As much as I would respectfully make further distinctions and express a disagreement on those findings, mainly because of the evolution of the jurisprudence, it is not necessary for the purposes of resolving this appeal. On this appeal, the context is different. The police engineered the taking of the sample and, with respect for the contrary opinion, I disagree that the absence of any “dirty trick” is relevant to the breach analysis. I further disagree, in view of the nature of DNA itself, its substantial informational content and the intrinsic high valued privacy expectation it bears, that the concept of “abandonment” routinely applies to one’s DNA. There is no implied consent that third parties, especially law enforcement agencies, are authorized to collect other people’s DNA.
[117] Purposeful engineering of the collection of DNA by the state was not the background either in Stillman or Usereau. So, even if I accept, as a binding point of law already decided, that the state may “collect” DNA from “persons of interest” or “suspects”, I understand that power to be limited to collection of DNA from people at liberty, but only under passive surveillance by the police. That is the law as it stands in Quebec. For the reasons stated herein, I respectfully disagree with the position that police operations to trick citizens into giving up their DNA are reasonable: see Delaa, 2009 ABCA 179.
[118] In sum, I find that the appellant cannot be said to have abandoned his DNA.
[119] As I will explain, I found the police strategy to actively trick someone into giving up DNA is a breach of s. 8 of the Charter. Further, as indefinitely retaining the DNA samples of “suspects” in an unregulated data bank for further use or comparison was not considered in either of the aforementioned cases, I subsequently turn to that issue.
(2) The Application of Section 8
[120] Section 8 of the Charter protects against “unreasonable” searches or seizures by the state. To establish that a search or seizure has occurred a person must show the existence of a “reasonable expectation of privacy” in the relevant subject matter. A breach is made out when that search or seizure was unreasonable: Jones, [2017] 2 S.C.R. 696, at para. 11.
[121] An individual’s reasonable expectation of privacy must always be balanced with the interests of the state in law enforcement.
[122] As La Forest J. said in Dyment, privacy interest must be protected, not vindicated. He stressed the importance of clear rules when the privacy interest at stake is important. He said:
One further general point must be made, and that is that if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated. This is especially true of law enforcement, which involves the freedom of the subject. Here again, Dickson J. made this clear in Hunter v. Southam Inc. After repeating that the purpose of s. 8 of the Charter was to protect individuals against unjustified state intrusion…
Dyment, [1988] 2 S.C.R. 417, at p. 430.
[123] Although the investigation of crime is a valid and shared value in the public, it cannot be at any price; powers conceded to law enforcement agencies are subject to constitutional limitations: Tessling, [2004] 3 S.C.R. 432, at para. 18.
[124] Protection is afforded to people, not places; s. 8 protects reasonable expectations of personal, territorial and informational privacy in the subject matter of state action: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at. p. 159; Tessling, [2004] 3 S.C.R. 432, at para. 20; Rodgers, [2006] 1 S.C.R. 554, at para. 25; Patrick, [2009] 1 S.C.R. 579, at para. 42; Cole, [2012] 3 S.C.R. 34, at para. 34; Spencer, [2014] 2 S.C.R. 212, at para. 16, 35; Marakah, [2017] 2 S.C.R. 608, at para. 10.
[125] One must take a purposive approach to defining the constitutional protection afforded by s. 8 of the Charter: Marakah, [2017] 2 S.C.R. 608, at para. 19; Spencer, [2014] 2 S.C.R. 212, at para. 15; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 156-57.
[126] Privacy interests are defined in three broad types — personal, territorial and informational privacy —, sometimes overlapping, but which “have proven helpful in identifying the nature of the privacy interest or interests at stake in particular situations”: Spencer, [2014] 2 S.C.R. 212, at para. 35.
[127] Constitutional protection must be interpreted generously: Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344; Marakah, [2017] 2 S.C.R. 608, at para. 19. Further, s. 8 of the Charter is not limited to the protection of a privacy interest. Early on, the Supreme Court did not foreclose the possibility that “the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159.
[128] Where DNA is concerned, the right not to incriminate oneself is engaged in the protection of s. 8 of the Charter: SAB, [2003] 2 S.C.R. 678, at paras. 34-35. To focus only on the protection of privacy in s. 8 “cannot exhaust the analysis where the principle against self-incrimination is at issue”: SAB, [2003] 2 S.C.R. 678, at para. 57. Although the principle against self-incrimination requires a contextual analysis, it is broadly defined as imposing “limits on the extent to which an accused person can be used as a source of information about his or her own criminal conduct”: SAB, [2003] 2 S.C.R. 678, at para. 33, citing Jones, [1994] 2 S.C.R. 229, at p. 249, and White, [1999] 2 S.C.R. 417, at para. 42.
[129] Search and seizure are, of course, a daily reality in law enforcement. The purpose of the protection is “to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160 (emphasis in original).
[130] Reasonable state intrusions are allowed. To be reasonable, a search or seizure must satisfy three criteria: (i) it must be authorized by law; (ii) the law itself must be reasonable; and (iii) the manner in which the search was carried out must be reasonable. Warrantless searches that do not meet those three criteria are presumed unreasonable: Collins, [1987] 1 S.C.R. 265, at p. 278; Grant, [1993] 3 S.C.R. 223, at p. 250; Stillman, [1997] 1 S.C.R. 607, at para. 25; Golden, [2001] 3 S.C.R. 679, at para. 84; Rodgers, [2006] 1 S.C.R. 554, at para. 23; Nolet, [2010] 1 S.C.R. 851, at para. 21. The same applies in the absence of urgency or other exigent circumstances: Dyment, [1988] 2 S.C.R. 417; Jones, [2017] 2 S.C.R. 696, at para. 11, footnote 1.
[131] In the warrantless search context, the onus shifts to the Crown to demonstrate that the search was nonetheless reasonable. The Crown must rebut the presumption of unreasonableness by leading evidence that the warrantless search was authorized by a reasonable law whether a statutory provision or a common law authority, and that it was carried out in a reasonable manner: Collins, [1987] 1 S.C.R. 265, p. 278; Buhay, [2003] 1 S.C.R. 631, at para. 35.
[132] In assessing the protection afforded by s. 8 of the Charter, one cannot ignore the impact of technological development: Marakah, [2017] 2 S.C.R. 608, at para. 19. What seemed very private in the past is now subject to interference, notably with the aid of technology. Examples are numerous: in Wong, [1990] 3 S.C.R. 36 (video surveillance of a hotel room), in Duarte, [1990] 1 S.C.R. 30 (electronic surveillance conducted without authorization), in Wise, [1992] 1 S.C.R. 527 (tracking devices), in Tessling, [2004] 3 S.C.R. 432 (thermal imaging device aimed at a home from an aircraft). Indeed, modern technology brings its load of challenges where privacy is concerned. While the protected expectation of privacy remains reasonable, technological innovations influence the analysis. More importantly, technology facilitates surveillance by the state, with the effect of expanding the possibilities for social control.
[133] Two equally important privacy interests are at stake in dealing with DNA samples and are protected by s. 8 of the Charter. First, there is a concern with a potential interference with the physical integrity of the person. Second, the kind of information contained in a DNA profile raises questions about an informational privacy interest: SAB, [2003] 2 S.C.R. 678.
[134] As regard interference with physical integrity of the person, the issue is obvious. Inviolability of a person's body is an undisputed principle: Pohoretsky, [1987] 1 S.C.R. 945. It is “perhaps […] the strongest claim to constitutional shelter”: Tessling at para. 21. Taking a bodily sample for DNA analysis involves using buccal swab, obtaining blood samples or plucking hair. Protection exists even if “the degree of offence to the physical integrity of the person is relatively modest”: SAB, [2003] 2 S.C.R. 678, at para. 44. Physical integrity, however, is not at stake when the DNA sample is collected from a discarded item, as in the appellant’s case: Stillman, [1997] 1 S.C.R. 607, at para. 62. But this conclusion does not put an end to the section 8 analysis.
[135] Interference with informational privacy is also an issue when dealing with DNA. DNA reveals important private information about an individual. In SAB, [2003] 2 S.C.R. 678, at para. 48, the Supreme Court stated:
48 The informational aspect of privacy is also clearly engaged by the taking of bodily samples for the purposes of executing a DNA warrant. In fact, this is the central concern involved in the collection of DNA information by the state. Privacy in relation to information derives from the assumption that all information about a person is in a fundamental way his or her own, to be communicated or retained by the individual in question as he or she sees fit (per La Forest J. in Dyment, supra, at p. 429). There is undoubtedly the highest level of personal and private information contained in an individual’s DNA. However, it is important to recall that the bodily samples collected pursuant to a search warrant issued under ss. 487.04 to 487.09 are collected for a limited purpose, clearly articulated in the Criminal Code.
[136] Any coffee drinker would not consent to his DNA being collected by a third party, whether an insurance company wanting to investigate his or her health issues, an enthusiastic techie neighbour wanting to test a new pocket-sized “DNA Reader” or, moreover, gathered by police and kept indefinitely for an indefinite use, without any legal control.
[137] Again, as the Supreme Court clearly stated, the “notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit”: Dyment, [1988] 2 S.C.R. 417, at p. 429; Spencer, [2014] 3 S.C.R. 212, at para. 40; SAB, [2003] 2 S.C.R. 678, at para. 48. The Court also underlined that “the closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy”: Cole, [2012] 3 S.C.R. 34, at para. 46.
[138] Furthermore, as the Supreme Court put it in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167: “[t]he state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion”.
[139] Indeed, reasonable expectation of privacy varies according to the circumstances. Concepts of reasonable expectation of privacy as well as abandonment must be assessed in context: Marakah, [2017] 2 S.C.R. 608, at para. 11; Edwards, [1996] 1 S.C.R. 128; Patrick, [2009] 1 S.C.R. 579, at para. 26. The location of and the kind of information are both relevant: McKinlay Transport Ltd., [1990] 1 SRC 627, at p. 645.
[140] In SAB, the Supreme Court grappled with DNA warrants granted pursuant to ss. 487.04 to 487.09 of the Criminal Code, the detailed regime elaborated to allow legal usage of DNA while protecting both personal privacy and informational privacy. Arbour J., for the Court, concluded that “in general terms, the DNA warrant provisions of the Criminal Code strike an appropriate balance between the public interest in effective criminal law enforcement for serious offences, and the rights of individuals to control the release of personal information about themselves, as well as their right to dignity and physical integrity.”: SAB, [2003] 2 S.C.R. 678, at para. 52.
[141] The provisions are meant to regulate the search and seizure of DNA materials for investigative purposes: SAB, [2003] 2 S.C.R. 678, at para. 3; Rodgers, [2006] 1 S.C.R. 554, at para. 8. The regime also regulates the collection of bodily substances voluntarily provided by a person, and it describes the many conditions to meet to obtain a warrant to collect them. The state needs to enter a sworn statement, presented ex-parte to a judge, enunciating the reasonable grounds to believe, among other facts, that the person targeted by the investigation was a party to a designated offence. Notwithstanding these reasonable grounds, the judge must also be satisfied that it is in the best interests of the administration of justice to issue the warrant and may impose such conditions to ensure that the seizure is reasonable in the circumstances: ss. 487.05 and 487.06 Criminal Code; SAB, [2003] 2 S.C.R. 678, at paras. 4-6, 39, 46.
[142] Further, the Criminal Code authorizes comparisons between the sample acquired through the warrant and samples collected on the specific crime scene where the designated offence was committed. It prohibits any other use, as well as it provides for the destruction of the material if, among other reasons, the results of the analysis exclude the person as the perpetrator of the designated offence, unless a judicial authorization to the contrary or a confirmed conviction (or discharge) for the designated offence under investigation is entered: ss. 487.08 and 487.09 Criminal Code; SAB, [2003] 2 S.C.R. 678, at paras. 13-14.
[143] Arbour J. also noted in SAB that, according to the legislative regime in place, “the DNA analysis is conducted solely for forensic purposes and does not reveal any medical, physical or mental characteristics; its only use is the provision of identifying information that can be compared to an existing sample”: s. 487.04 Criminal Code; SAB, [2003] 2 S.C.R. 678,at para. 49.
[144] Thus the informational aspect of privacy is protected by s. 8 of the Charter, and “the DNA warrant scheme [that] explicitly prohibits the misuse of information is an important factor that ensures compliance” with that section: SAB, [2003] 2 S.C.R. 678, at para. 50.
[145] In sum, methods of collecting DNA involving interference with the physical integrity of a person require judicial authorization and deserve special attention. Methods that do not, however, are unregulated. If a difference exists between “forced” DNA sampling and retrieval of “abandoned” or otherwise “discarded” DNA, the logic of this distinction ends when the samples are in the hands of the state. At that moment, it is the informational aspect of privacy that is at stake and the distinction as to “how” the samples were obtained is irrelevant, thus the need for prior authorization in all cases. La Forest J., speaking for the majority in Colarusso said that “the protection against unreasonable seizure is not addressed to the mere fact of taking. Indeed, in many cases, this is the lesser evil”: Colarusso, [1994] 1 S.C.R. 20, at p. 63.
[146] In Rodgers, the Supreme Court examined the constitutionality of s. 487.055 of the Criminal Code, permitting prior judicial authorization for DNA warrants “to authorize the collection of DNA samples from three classes of previously convicted and sentenced offenders”: Rodgers, [2006] 1 S.C.R. 554, at para. 1.
[147] In her analysis, Charron J. for the majority, noted that “[t]he potential invasive impact on the right to privacy has carefully been circumscribed by legislative safeguards that restrict the use of the DNA data bank as identification tool only”: Rodgers, [2006] 1 S.C.R. 554, at para. 5. Fish J., dissenting on the justification for ex parte proceeding, stated that: “[t]he DNA data bank constitutes a substantial and novel invasion of privacy.” Rodgers, [2006] 1 S.C.R. 554, at para. 95.
[148] In view of that invasion, the law provides safeguards. Charron J. considered them in upholding the constitutionality of the legislative scheme. Those safeguards, aimed at protecting the informational privacy of individuals, are: (1) the need for judicial authorization, (2) class of persons confined in the law, (3) use of bodily samples collected controlled by law, (4) criminal offence to misuse bodily samples, (5) comparison of DNA profiles strictly limited (offender with crime scene profiles) and access to the bank restricted (criminal offence to breach provisions), (6) communication of information restricted, (7) bodily samples retained for safekeeping for further forensic limited, (8) further samples taken only upon further judicial authorization, (9) Data Bank Advisory Committee established by regulation, (10) Commissioner of the RCMP required to report annually, (11) Act subject to a review by Parliament after five years, (12) Act permits sharing of DNA with foreign entity only for legitimate law enforcement purposes pursuant to specific agreement or arrangement: Rodgers, [2006] 1 S.C.R. 554, at para. 11.
[149] Charron J. thus concluded that “[t]he data bank provisions strike an appropriate balance between the public interest in the effective identification of persons convicted of serious offences and the rights of individuals to physical integrity and the right to control the release of information about themselves”: Rodgers, [2006] 1 S.C.R. 554, at para. 44.
[150] One must not lose sight of the fact that those processes and safeguards were enacted for convicted offenders. It seems odd that no such safeguards would exist for the protection of non-convicted citizens at liberty. At best, they are currently left to the unfettered discretion and good faith of the state.
[151] In view of the growing possibilities offered by DNA analysis, the words of the Supreme Court apply equally, if not more, to the police: “[t]he protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.”: Bain, [1992] 1 S.C.R. 91, at pp. 103-104; Nur, [2015] 1 S.C.R. 773, at para. 95.
[152] There was no scientific evidence in this case on DNA and the information it may yield on an individual. It is clear, however, that the Supreme Court concluded that the possibility to extract only the identifying information is sufficient to require safeguards that are actually non-existent if the police do not conform to the statutory regime.
[153] Given the obiter in Stillman and this Court’s decision in Usereau, indicating that “abandonment” of one’s DNA is possible in certain circumstances, I would conclude that police cannot target a person and set that person up in a scenario to obtain his or her DNA. Doing so is the functional equivalent of collecting someone’s DNA while they are in custody and this is not possible without a warrant. The practice of tricking members of the public into surrendering a DNA sample should be subject to prior authorization by a general warrant (487.01 Cr. C.). Once legally seized for its DNA potential and analyzed, the use of the DNA thereby obtained should be regulated so that sufficient safeguards are put into place to strike a balance between the competing interests of people’s privacy and law enforcement.
(3) The Retention of “Discarded” DNA Information
[154] By retaining the DNA forever, the state aggravates the infringement. The Crown based its entire response on the Barlow decision.
[155] In Beare; Higgins (1987), 34 C.C.C. (3d) 193 (Sask. C.A.), the Court of Appeal found that the lack of a requirement to destroy fingerprints taken by police under the authority of the law, when the initial charge was withdrawn or dismissed, was an infringement of section 7 of the Charter. The Supreme Court reversed this decision, but noted that the issue of the retention of the fingerprints of an accused who was not convicted was not before the court: Beare; Higgins, [1988] 2 S.C.R. 387, at pp. 413-414. For La Forest J., speaking for the Court, if the law provides for some retention, it cannot authorize unconstitutional retention: at p. 414.
[156] La Forest J. thus rejected that fingerprinting was an infringement of a right of privacy, partly on the basis that the fingerprints were acquired after a lawful arrest. He said:
“… a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or a person against whom a case for issuing a summons or warrant, or confirming an appearance notice has been made out, must expect a significant loss of personal privacy….”
Beare; Higgins, [1988] 2 S.C.R. 387, at p. 413.
[157] This last remark, in my opinion, precludes any parallel with DNA samples obtained from citizens on the basis of suspicion. In the present appeal, it must be recalled that the trial judge found that there was no reasonable ground to believe that the appellant had committed a crime under investigation.
[158] On this same issue, in Dore, Feldman J.A., speaking for the Ontario Court of Appeal, discussed the retention of fingerprints. It must be kept in mind that the discussion proceeds on the basis that the fingerprints of Dore were legally obtained, according to the Identification of Criminals Act, R.S.C. (1985), ch. I-1.
[159] First, restating the basic test, Feldman J.A. said: “the court must undertake a traditional s. 8 analysis, the onus being on the Crown to show on a balance of probabilities that (a) the ongoing retention is authorized by law; (b) the law is reasonable; and (c) the retention in this case was reasonable: Collins (1987), 33 C.C.C. (3d) 1 at 14 (S.C.C.).”: Dore (2002), 166 C.C.C. (3d) 225, at para. 38.
[160] Feldman J.A. concluded that there must be some reasonable statutory authorization to retain fingerprints and found that the Act provided for some authority to retain fingerprints properly and legally taken, but, recalling the words of La Forest J. in Beare and Higgins, she added that “the section does not authorize ‘unconstitutional retention.’”: Dore (2002), 166 C.C.C. (3d) 225, at para. 41.
[161] In this case, the Crown does not point to any statutory authorization to retain DNA acquired from suspected citizens without legal authority.
[162] Second, Dore acknowledges the privacy interest at stake in the retention of something associated with one’s body. Those comments equally apply to DNA samples. Feldman J.A. said:
… anything associated with one’s body, especially where it is not something that is otherwise normally accessible, is of a personal and confidential nature and is the type of information that people expect to be able to control and keep private in the ordinary course. The fact that one’s fingerprints may tell nothing about the person other than his or her identity hardly makes the information impersonal.”
Dore (2002), 166 CCC (3d) 225, at para. 53.
[163] Feldman J.A. discarded the argument that there is no privacy interest in fingerprints or DNA, because they are not inherently incriminating and said “this concept adds nothing to the debate on whether a person has a privacy interest in his or her fingerprint information”: Dore (2002), 166 CCC (3d) 225, at para. 55. Making the analogy with DNA, Feldman J.A. further said:
Of course a very critical contextual factor is the nature of the privacy interest in fingerprints. As I have already discussed, the nature of the information contained in a person’s fingerprint is that it can identify the person. However, it cannot reveal core value, personal or private information as can, for example, DNA. The privacy interest is arguably a minimal one, but is derived both from the nature of the information emanating from one’s body, together with the fact that in the retention context, it is stored by the police and is linked with the stigma of identification as a criminal.
Dore (2002), 166 CCC (3d) 225, at para. 70.
[164] I agree with those comments and note that DNA certainly carries a higher privacy interest and deserves higher legal protection than fingerprints.
(4) Application to This Case
[165] The facts are uncontested. The police engaged in the surveillance of the appellant on the basis of some resemblance between a recent murder and sexual assaults, which had occurred years earlier. Police knew, on April 9, 2008, from preliminary discussions with the laboratory personnel that there was no connection established between the DNA found in the Blanchette murder case and the DNA found in the N. sexual assault case. This was subsequently confirmed. Nevertheless, they proceeded with the surveillance of the appellant and tricked him, in a scenario functionally equivalent to detention, into surrendering a sample of his DNA.
[166] It was put into evidence that police collect and retain indefinitely, through the laboratory, those DNA samples and other “abandoned” samples into an organized local data bank for further comparison, even if a suspect at the time the samples are collected is not connected to the offense he or she was suspected to have committed. Once the implication of the person is demonstrated after a trial, however, the corresponding samples are removed from the Local Data Bank because they will be preserved, from that point on, in the National Data Bank.
[167] I have no hesitation in concluding that the appellant had a subjective privacy interest in his DNA, that he did not consent to the search or seizure, nor did he voluntarily “abandon” his DNA, that the police action was a warrantless search or seizure, and that the Crown did not rebut the presumption of unreasonableness. The active police operation to obtain the DNA of the appellant infringed his constitutionally protected right. The retention of DNA constitutes a continuing infringement.
[168] That said, contrary to the appellant’s contention, his DNA samples were never retained for the purposes of forensic analysis in relation to the offences for which he was charged. This case is not a case as in Barlow or Dore where the bodily evidence of the person was retained and stored and, only years later, yielded a connection to a crime scene. All forensic analyses in question here were made contemporaneously.
[169] The initial police operation was designed to enable a comparison between the DNA of the appellant and the DNA found both in the Blanchette murder case and the N. sexual assault case. The same sample also, contemporaneously, revealed a match with the G. case. These results provided grounds to obtain a warrant.
[170] As I have said, the appellant’s DNA was first obtained through a warrantless search and seizure. The Crown has not otherwise tried to justify the warrantless search and seizure and the presumption that it was unreasonable has not been rebutted. Therefore, a violation of the appellant’s section 8 protected rights occurred.
[171] The trial judge’s finding that no reasonable grounds existed before acquiring the DNA samples for the purpose of obtaining a warrant was not challenged on appeal and commands deference. Without the tainted evidence in the ITO provided by the warrantless search, which must be redacted, the warrant was not legally obtained: Evans, [1996] 1 S.C.R. 8, at para. 19; Grant, [1993] 3 S.C.R. 223, at p. 251; Kokesch, [1990] 3 S.C.R. 3.
[172] For the reasons that follow, however, although the evidence was obtained in violation of a constitutional right, I would not exclude it.
Exclusion of the evidence: Section 24 (2) of the Charter
[173] In Grant, the Supreme Court clearly distanced itself from the “near-automatic exclusionary rule for bodily evidence obtained contrary to the Charter”: Grant, [2009] 2 S.C.R. 353, at para. 100. The test is now flexible and based on all the circumstances of the case.
[174] In Stevens, Kasirer J.A. summarizes the balancing function of the three inquiry test:
[87] According to Grant, three avenues of inquiry are engaged when determining whether or not evidence should be admitted pursuant to s. 24 (2) of the Charter:
(1) the seriousness of the Charter-infringing state conduct (admission may send the message that the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interest of the accused (admission may send the message that individual rights count for little), and
(3) society’s interest in the adjudication of the case on its merits.
[88] The more serious they are in actual fact, the more heavily the first two factors identified in Grant weigh in favour of excluding the illegally obtained evidence. On the other hand, when society’s interest in establishing the truth is pressing, this factor weighs in favour of its inclusion. After weighing these criteria, a judge must determine whether the admission of the disputed evidence could bring the administration of justice into disrepute.
Stevens, 2016 QCCA 1707, at para. 87-88 (references omitted); see also McGuffie, 2016 ONCA 365.
(1) Seriousness of the Charter-Infringing State Conduct
[175] I agree with the appellant that the infringement on his constitutional rights was serious.
[176] As stated by the Supreme Court in Grant, “[t]he more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law”: Grant, [2009] 2 S.C.R. 353, at para. 72.
[177] Almost thirty years ago, the words of Sopinka J. captured the situation perfectly: “[w]here the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally”: Kokesch, [1990] 3 S.C.R. 3, at p. 29.
[178] It must also be remembered that “for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge”: Grant, [2009] 2 S.C.R. 353, at para. 75.
[179] Those are apt words because, according to the evidence, The DNA samples of some 500 persons are now being kept indefinitely in the local data bank, without their knowledge, without having been charged with any crime. Further, these samples are being “tested” with every DNA sample found on crime scenes in Quebec and elsewhere in Canada, without statutory authorization. The only wrongdoing of these individuals was to have been “suspected” at one time of something for which the police have no evidence.
[180] In the present case, however, as we know, there was no interference with bodily integrity, thus diminishing the seriousness of the infringing state conduct.
[181] Further, there was no bad faith on the part of the police. They used an often confirmed investigation method: Lévesque Mandanici, 2014 QCCA 1517, at paras. 83-85. I am also mindful of the fact that the state claimed to be “authorized” by one particular judicial decision, namely Barlow.
[182] The result of this first inquiry consequently weighs against the exclusion of the evidence.
(2) Impact of the Breach on the Charter-Protected Interests of the Accused
[183] When discussing DNA, the Supreme Court stated numerous times that there are important privacy interests at stake. The strong words used in SAB and Rodgers, cited herein, are certainly illustrative. In Grant, Chief Justice McLachlin, as she then was, said this about the privacy interest one has in one’s hair: “[p]lucking a hair from the suspect’s head may not be intrusive, and the accused’s privacy interest in the evidence may be relatively slight”: Grant, [2009] 2 S.C.R. 353, at para. 103. Whether the protected interests of the accused are significant seems open for discussion. I would not, however, take this comment by McLachlin C.J. to be determinative on the issue.
[184] One important consideration here is the discoverability of the evidence. Police acted in a hurry to get a result that they could have obtained, as the law stands now, with more patience: Usereau, 2010 QCCA 894.
[185] Although I concluded that the state’s practice to retain DNA without statutory authority is also contrary to section 8 of the Charter and aggravates the infringement caused in collecting the DNA, on the facts of this case, the appellant’s DNA was not retained.
[186] I conclude that the result of this second inquiry weighs against the exclusion of the evidence.
(3) Society’s Interest in the Adjudication of the Case on the Merits.
[187] Society expects that a serious criminal allegation be adjudicated on its merits and, when reliable and important evidence is excluded, it may undermine the truth-seeking function of a trial: Grant, [2009] 2 S.C.R. 353, at paras. 80-84.
[188] Having concluded that the first two inquiries weigh in favour of including the evidence, it follows that “the third inquiry will almost certainly confirm the admissibility of the evidence”: McGuffie, 2016 ONCA 365, at para. 63.
[189] I conclude that the exclusion of the evidence would be more likely to bring the administration of justice into disrepute than its admission.
IV. Admission of G.’s Four Out of Court Statements
[190] G. was assaulted on September 23, 2005, but passed away in 2008, before the arrest and trial of the appellant. Immediately after the assault, G. told a passer-by, Mr. Trudeau (Trudeau), what had just happened and asked him to call 9-1-1. The police officer Tanguay (Tanguay), arriving at the scene, also received brief oral statements from G., whom he perceived to be in panic. She was constantly saying that she had been violently sodomized and that she was in pain, her rectum was hurting. Six days later, on September 29, 2005, G. provided a written statement to the police. Finally, on July 1, 2008, the police obtained a K.G.B. statement from her. On the day of her aggression, semen was found in the complainant’s rectum. Complete spermatozoa were found, a rare occurrence when the sperm is found in the rectum, which indicated that the sexual assault had occurred in the past 6 to 21 hours. The sperm matched the appellant’s DNA.
The decision
[191] The Crown was successful in adducing G.’s four statements as evidence. The first two statements were admitted as res gestae. The other two were admitted pursuant to the principled approach to the admissibility of hearsay evidence.
[192] The trial judge stated that the traditional exceptions to the exclusion of hearsay continued to be relevant, being presumptively admissible while remaining subject to the overriding requirements of necessity and reliability. Here, necessity was not contested.
[193] The trial judge defined res gestae as a traditional exception to hearsay and more specifically, she explained that it consists of: “statements that occur contemporaneously with an act, such statements being inextricably bound up in the transaction,” and that the “words must accompany or form part of the transaction or at least must be substantially contemporaneous, as this reduces the possibility of concoction or distortion”: D'Amico, 2013 QCCQ 20910, at paras. 18-19.
[194] Reliability not having been challenged, the trial judge admitted the oral statements because “they are ‘contemporaneous’, ‘inextricably bound up’ to the transaction, as the possibility of concoction, distortion or error is impossible under the circumstances”: D'Amico, 2013 QCCQ 20910, at para. 27.
[195] The trial judge then determined that the written statement and the videotaped statement met the threshold reliability and admitted those statements under the principled approach. While noticing discrepancies between the two statements on certain points, the trial judge found that on the crucial points, they were the same. The trial judge was comforted by the extrinsic evidence, notably the DNA evidence and the testimony of Trudeau and Tanguay, but also other supportive evidence, which she considered “adequate safeguards to substitutes in the process of testing the statements through cross-examination”: D'Amico, 2013 QCCQ 20910, at paras. 34-48.
Position of the parties
[196] This ground of appeal is limited to certain aspects. The appellant argues that the trial judge did not duly consider all the circumstances. Relying on the testimony of Trudeau, who said G. gave him the impression that she was forcing herself to cry and that she seemed intoxicated, the appellant submits in his factum that there was a possibility of fabrication. He also sees possible calculation, because G. admitted in her video-statement omitting to mention that she was a sex worker for fear of not being believed, an intellectual process incompatible with a state of shock and compatible with possible fabrication.
[197] The appellant contends that the trial judge further erred in admitting the written and KGB statement under the principled approach to hearsay, because cross-examination of this witness would not have been superfluous. First, he says that the written statement did not yield any charges, because the police officer in charge of the investigation at the time, who testified at trial, thought that the story was not reliable. Second, he suggests that when giving the KGB statement in 2008, the witness showed a lack of independent memory. He contends that she did nothing more than repeat, at the insistence of the police officer asking leading questions, what she had said in her written statement. Reliability was thus lacking. Finally, the appellant submits that the independent evidence was not supportive evidence. For instance, the appellant says that the presence of his DNA in the complainant’s rectum was only an indication that he had had a sexual encounter with G.. Next, the Crown admitted at trial that the contusions found on the complainant’s body could be an indication that sexual intercourse had occurred, rather than assault. Finally, the appellant says that relying on the res gestae statements introduced by Trudeau and Tanguay was also an error, because of their inadmissibility.
[198] The Crown responds that a decision on the admissibility of the evidence was squarely within the discretion of the trial judge. The DNA, where it was found in the complainant’s body, the expert testimony relating to the quality of the semen, the spontaneous utterance to officer Tanguay confirming her pain in the anal region, and his observation that she could not sit normally in the police cruiser all offer more than adequate supportive evidence.
Analysis
[199] With respect, this ground is unconvincing. I agree with the Crown. The appellant’s approach is piecemeal. His argument bears on the ultimate reliability of the evidence, rather than focussing on the threshold admissibility of the evidence: Youvarajah, [2013] 2 S.C.R. 720, at paras. 24-25; Khelawon, [2006] 2 S.C.R. 787, at paras. 50-52.
[200] Further, the supportive evidence is indeed very strong and corroborates the hearsay statement on material aspects. The frailties of this evidence, if any, could and have been explored at trial in the cross-examination of Trudeau and Tanguay: Blackman, [2008] 2 S.C.R. 298. The trial judge did not have the benefit of the Supreme Court decision in Bradshaw, but I am of opinion that the corroborative evidence first, mitigate the need for cross-examination on the point that the hearsay is tendered to prove and second, that it meets the high threshold stated therein, meaning that “its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement…”: Bradshaw, [2017] 1 S.C.R. 865, at paras. 44-47.
[201] The appellant does not show any error in the trial judge’s application of the legal test and fails to show an error in the factual findings. I would reject this ground.
V. Convicting the Appellant of the Sexual Assault and Threatening of H.
[202] In 2002, when H. was assaulted, a witness saw part of the aggression and the dark coloured SUV. Geneviève Brière (Brière) testified at trial. Seeing a body falling out of the SUV, she ran towards it as the vehicle was quickly taking off. She clearly saw the licence plate. Brière called the 9-1-1 emergency services. She remembers that she was asked to identify herself. She also remembers giving the 9-1-1 operator her location, the plate number, of which she was absolutely sure, and the general direction of the SUV. She was affirmative that she was then telling the truth. She did not, ten years after, remember the plate number and her memory could not be refreshed.
[203] At trial, the recording of that call was not available because of the archiving policy, but a computer transcript printout was available. That printout was admitted into evidence and the licence plate number appearing on the document is [...].
[204] The SUV bearing that licence plate was intercepted a few minutes later and the appellant was identified as the driver by police officer Melo-Gomez, who also testified at trial.
[205] Finally, the 9-1-1 operator at the time, Diane Mio (Mio), also testified. Mio could not remember the number or the call itself, but identified the printout as a written copy of the call that she had received, after explaining the context of how she worked.
The decision
[206] The trial judge admitted the printout under the principled approach to hearsay. The necessity criterion was satisfied, because nobody remembered the licence plate number. Threshold reliability was also satisfied, firstly because the printout reflects the general testimony heard, and secondly because the 9-1-1 operator was accurate in her testimony and thus offered a reliable description of her functions when receiving a call.
[207] The trial judge also found that the printout was not a record made in the course of an investigation as per section 30(10)(a)(i) of Canada Evidence Act and that it was not inadmissible on that ground. The trial judge ruled that the “record was not made in the course of an investigation. It was made before the investigation”: D’Amico, 2013 QCCQ 20911, at para. 21. She further found that the document satisfied the best evidence rule enunciated in section 31.2 (2) of the Act.
Position of the parties
[208] This ground of appeal is threefold. First, the appellant argues the inadmissibility of the computer printout. According to him, the trial judge erred because the printout was a record made in the course of an investigation or inquiry and was inadmissible according to the Act.
[209] If it is admissible, however, the appellant contends that it remains hearsay. Applying the principled approach, the trial judge would have erred in concluding that the necessity criterion had been met because it was, at best, “manufactured necessity”. The appellant claims that the state was negligent in destroying the vocal recordings prior to the arrest and charge of the appellant.
[210] Second, if the printout is admissible as hearsay, the appellant questions the reliability and reasonability of the evidence. The time of interception on the printout indicates that the call was received at 1:30 a.m. and the police report indicates that the interception of the appellant’s vehicle occurred at 1:30 a.m. In addition, the call was made on November 13, 2002 and the printout’s date is December 9, 2009.
[211] Third, the appellant submits that the verdict rests on the trial judge’s failure to properly address key inconsistencies in the evidence pressed by the defence at trial. The appellant submits that those discrepancies needed to be addressed and resolved. First, the fact that the time appearing on the printout record and the time of the interception are the same. Second, the different descriptions of the appellant’s clothes offered by H. and by police officer Melo-Gomez: according to the former, he was wearing a suit and tie, and for the latter, he was wearing blue jeans and a dark jacket when he was intercepted. Lastly, the appellant raises the implausibility of the description of how H. was pushed out of the car.
[212] The respondent does not answer the arguments of the appellant. According to the Crown, the trial judge concluded that any prejudicial effect this evidence may have is outweighed by its probative value and that finding lies within the trial judge’s discretion.
Analysis
[213] With respect to the respondent’s position, I do not find any express conclusion to the effect that the prejudicial effect of this evidence is outweighed by its probative value.
[214] The appellant, however, does not argue that the prejudicial effect outweighs the probative value. He has narrower arguments, but again, with respect, this ground has no merit.
[215] I agree with the trial judge that the computer printout of the 9-1-1 call is not a record made in the course of an investigation, and therefore that it is admissible despite section 30(10)(a)(i) of Canada Evidence Act. The appellant offers no authority supporting his proposition and it does not appear to rest on solid grounds.
[216] As a matter of logic, 9-1-1 calls are not a part of an investigation, but they may trigger such an investigation. The information gathered during the call existed before any investigation began. In another context, the British Columbia Court of Appeal explained that “[t]he effect of s. 30(10)(a)(i) is that a record made in the course of an investigation may not be admitted as a business record. It does not, however, prevent information contained in the record from being admitted as direct evidence.”: United States of America v. New, 2017 BCCA 249, at para. 37. I tend to agree, but I would not at this point do so conclusively, because of the paucity of arguments presented by the parties.
[217] The same may be said for the argument relating to the finding of necessity. Necessity seems obvious. In another context, this Court allowed the use of the recording of the 9-1-1 call under the principled approach to hearsay evidence: Lebel, 2018 QCCA 302.
[218] Whether it was “manufactured” is, of course, another argument. There are authorities holding that a party cannot create its own necessity: Lezama, 2015 QCCA 1462, at para. 47, citing Rockey (1995), 99 C.C.C. (3d) 31, at paras. 56, 65-66 (C.A.O.), confirmed at [1996] 3 S.C.R. 829; Simpson 2007 ONCA 793; Baldree, [2013] 2 S.C.R. 520, at paras. 67-68 and Khelawon, [2006] 2 S.C.R. 787, at para. 104.
[219] The appellant insists heavily on the state’s negligence in not preserving the recording of the call. At trial, the parties agreed to adduce part of the testimony of officer Bourque on this issue given at the preliminary enquiry. In his testimony, he explained the routine destruction of the recordings of 9-1-1 calls after two years.
[220] The circumstances surrounding the destruction of the evidence and the relevance that the evidence was perceived to have at the time are relevant factors to consider: La, [1997] 2 S.C.R. 680, at para. 21. Considering that no charges had been laid at the time and that the 9-1-1 call became relevant only in 2008, when the investigation was given a new start when the appellant’s DNA sample was obtained, it was not unreasonable for the trial judge to find that the state had not been negligent in destroying the recording. I would not intervene on that finding.
[221] As for the other part of the appellant’s argument relating to the various discrepancies, it is not contested that they exist as they do in most trials, if not in all of them, and even more so when they are held many years after the facts. The trial judge, however, positively found that the plate number was correct, that a witness did see H. fall out of the dark SUV and that the same SUV was intercepted by the police officer. Once those findings, which were contested, were confirmed, the discrepancies could be resolved on the whole of the evidence. Looking at the evidence and the judge’s reasons as a whole, the times are obviously erroneous, H. did fall out of a dark SUV no matter how she did so and the police officer did intercept the appellant a few minutes away from the event’s location. As for the clothing, I fail to see a discrepancy. H. testified the appellant was wearing a jacket and he wore jeans. The fact that the police officer wrote a “coat” and jeans is of no moment.
[222] I would not give effect to this ground.
VI. Admission of Similar Fact Evidence
[223] The Crown announced, early in the trial, its intention to seek the admissibility of the evidence on each count as similar fact evidence. The Crown made its request at the end of the presentation of its evidence. Modus operandi was the issue. The decision was rendered a few months later.
The decision
[224] The trial judge wrote, “the similar facts [sic] evidence is requested to show a system, a ‘modus operandi’, a pattern of behaviour, not identity. This refers to a live and relevant trial issue”: D'Amico, 2013 QCCQ 20908, at para. 15.
[225] In telegraphic mode, the trial judge stated the relevant decisions and explained very succinctly the law as it relates to similar fact evidence. She goes on to state the facts:
[24] The Court is of the opinion that collusion is not an issue here. No question of fabrication arises from the evidence shown in court. The alleged victims did not know each other. There is only a slight possibility that two of the alleged victims might have met briefly at Stella's.
[25] On the other hand, the connecting factors between the alleged victims are numerous.
[26] In all the cases, the four alleged victims are female prostitutes, in Montreal, picked up on the street, in the night.
The abuses take place inside the vehicle, a dark truck, SUV style.
It starts with consensual contract for specific sexual services (fellatio).
Rapidly, it becomes non-consensual. The aggressor becomes aggressive and insulting (pulls hair, beats up). It happens in a secluded, isolated area.
[27] In three out of four of the cases, the truck bears the same licence plate (related to the accused or his father). The interior of the vehicle is grey.
The abuser chooses the place to go.
The abuser has a non-consensual sexual behaviour (sodomy).
The abuser doesn't use condoms.
[28] In two out of four, the abuser touches the alleged victims genitals with his fingers.
The alleged victim is abruptly thrown out of the car.
DNA evidence relating to the accused is also found in the cases of two of the alleged victims.
D'Amico, 2013 QCCQ 20908, at paras. 24-28
[226] The trial judge acknowledges discrepancies but concludes that “the evidence shown entitles the Court to infer first a situation-specific propensity of the accused and second, that such propensity as established is present in each of the alleged victims' cases.”: D'Amico, 2013 QCCQ 20908, at para. 39.
[227] Finally, the trial judge then proceeds to weigh the prejudicial effect and the probative value. On that issue, the reader finds the following statement: “the proposed similar fact evidence demonstrates to be sufficiently probative to justify running the risks of prejudice presented by the evidence.”: D'Amico, 2013 QCCQ 20908, at para. 49.
Position of the appellant
[228] The first argument of the appellant rests on the other grounds of appeal. He argues that once the DNA evidence, the extrajudicial statements made by G. and the content of the 9-1-1-history printout would have been excluded, the similar fact evidence should not be have been allowed. For the above-stated reasons, I have concluded, however, that all this evidence was properly admitted.
[229] The appellant then makes the subsidiary argument that the trial judge committed two errors in admitting similar fact evidence: she misstated certain facts and relied on generic similarities.
[230] According to the appellant, errors of fact can be found in three of the propositions made by the trial judge. The first proposition to the effect that the victims were “female prostitutes, in Montreal, picked up on the street, in the night” (at para. 26 of the judgment) is incorrect. According to the appellant, this statement holds two factual inaccuracies: the time of day, in the assault on N., was late afternoon and not at night, and there was no evidence that the appellant knew that G. was a sex worker when she entered his vehicle. A second proposition of the trial judge that the “aggressor becomes aggressive and insulting (pulls hair, beats up)” (at para. 26 of the judgment) is also incorrect according to the appellant. The victim F. did not testify that her assailant was aggressive, she rather said that it was “not his style.” Finally, the trial judge would have been wrong in stating that in three cases “the abuser doesn't use condoms” (at para. 27 of the judgment), while H. had testified that the agreement was to use a condom and it was unclear whether there was penile penetration in her case.
[231] The appellant also points to a mistake of the trial judge in assessing the similarities. According to him, the trial judge would have erred in law when she used indiscriminately evidence going to the appellant’s connection to each crime (the “dark truck, SUV style”, the licence plate number, the DNA evidence) and evidence in the manner of the commission of the similar acts. The appellant argues that only the latter was relevant in assessing whether there were sufficient similarities.
[232] Finally, the appellant submits that the prejudicial effect of admitting this evidence outweighs its probative value, inducing the judge to engage in propensity reasoning. Similar fact evidence being exceptionally admitted, the appellant reviews the factors suggested in Handy, [2002] 2 S.C.R. 908, at para. 82, and argues that the trial judge relied only on three, focussing mainly on similarities, surrounding circumstances and the distinctive features of each crime. Those, according to the appellant, are simply generic in nature, unremarkable and likely constitute the basic facts of any street encounter between a sex worker and a client, and therefore that they cannot confer probative value. In his factum, the appellant writes: “[t]hat street prostitutes would be picked up in the street to perform sexual services such as fellatio is not unusual. Finally, that the sexual services would be performed away from prying eyes, in an isolated area, at times chosen by the client, would not be surprising in the least”. Further, he contends that “non-consensual sodomy also does not persuade [of] an improbability of coincidence,” as it describes a general narrative of sexual assault.
[233] This leaves some facts, which are inconsistently present and enumerated in the appellant’s factum: “(1) the aggressive and insulting behaviour displayed by the alleged assailant, (2) digital genital touching, (3) the absence of use of a condom and (3) [sic] [4] the expulsion of the complainant from the assailant's vehicle at the end of the alleged sexual assault, all present in two out of four cases”.
[234] In view of the finality of the similar fact evidence, the appellant claims that it was an error to infer that the appellant “(1) had a situation-specific propensity to adopt a certain modus operandi and (2) adopted this modus operandi in each of the cases at issue here,” both statements having to be supported by “a persuasive degree of connection between the similar fact evidence and the offence charged”: Shearing, [2002] 3 S.C.R. 33, at para. 48.
Position of the respondent
[235] The arguments of the Crown are timorous at best. They simply outline that, despite certain dissimilarities, the similarities were numerous. The Crown does not specifically answer the arguments raised by the appellant, saying only that the factual errors cited above have no impact, and that deference is owed to the discretion exercised by the trial judge.
Analysis
[236] The trial judge’s statement of the law is not in dispute. The appellant’s contestation is on another front, insisting on the generic nature of the similarities found in the evidence. In my opinion, the appellant is mistaken.
[237] The probative value of similar fact evidence depends on the similar patterns found in the accused’s conduct, and the objective improbability of coincidence. Where such similar patterns are found, the probative value of the evidence is high enough to outweigh its potential prejudicial effect: Morasse, 2015 QCCA 74, at paras. 79-80, Handy, [2002] 2 S.C.R. 908, at paras. 42, 47 and 91; Trochym, [2007] 1 S.C.R. 239, at para. 72; Shearing, [2002] 3 S.C.R. 33, at para. 40; Arp, [1998] 3 S.C.R. 339, at para. 42; B. (C.R.), [1990] 1 S.C.R. 717, at p. 735; see also the apposite discussion in Neverson, 2018 QCCS 3373.
[238] In the Morasse case, this Court stated that propensity evidence is admissible where it does more than demonstrate general propensity: Morasse, 2015 QCCA 74, at para. 79.
[239] The degree of similarity required will vary according to the purpose for which the similar fact evidence is presented and on the availability of other evidence: Handy, [2002] 2 S.C.R. 908, at para. 78. A convincing illustration of this is that where the similar fact evidence is used to determine “whether inappropriate touching in a doctor/patient context was accidental or done for sexual gratification” the degree of similarity ought not to suggest more than “importing a sexual component into the professional relationship” and consequently “[t]he manner in which that is done need not be the same in each incident”: Buna (2010), 249 C.C.C. (3d) 156, at para. 59 (B.C.C.A.).
[240] Where the similar fact evidence seeks to prove identity, a higher degree of similarity is needed, because the purpose is to support a demonstration that the accused is the author of all the offences. The trier of facts “is not asked to infer from the accused’s habits or disposition that he is the type of person who would commit the crime”: Arp, [1998] 3 S.C.R. 339, at para. 43 (emphasis in original text). It is sometimes said that the similar conducts must be an equivalent “to a ‘signature’ or ‘fingerprints at the scene of the crime’ that would safely differentiate him from other possible assailants”: Handy, [2002] 2 S.C.R. 908, at para. 79. The rationale of this rule is that the test of the “objective improbability of a coincidence” cannot be otherwise resolved where identity is the issue: Neverson, 2018 QCCS 3373, at para. 250, citing Marc Rosenberg, “Similar Fact Evidence” in The Law Society of Upper Canada, Special Lectures 2003: The Law of Evidence, Toronto, Irwin Law, 2003, at pp. 413-414.
[241] I agree.
[242] It is undeniable that identity was an issue at trial, as the judge stated in her decision. She resolved this question, however, without resorting to the similar fact evidence.
[243] In the case of G., the trial judge extensively considered all the evidence, notably G.’s spontaneous words spoken to the police officer Tanguay immediately after being assaulted, and the DNA forensic analysis to conclude that the appellant’s guilt was proven beyond reasonable doubt: D'Amico, 2014 QCCQ 21006, at para. 118.
[244] In the case of N., the trial judge again did not rely on similar fact evidence to prove the appellant’s identity. Proceeding to analyze all the evidence in detail, the trial judge underlined that N.’s testimony stood uncontested, that the plate number corresponded, that N. identified the appellant when she first talked to the police, during a photo line-up as well as in court, and that the DNA forensic analysis was conclusive: D'Amico, 2014 QCCQ 21006, at para. 202.
[245] In the case of H., the trial judge again analyzed the evidence relevant to this incident without resorting to the similar fact evidence. The trial judge noted that H.’s testimony was uncontested and mainly relied on the description of the events by the witness, the vehicle, the licence plate number given to the 9-1-1, the fact that there was evidence confirming that call and the interception of the appellant in the vehicle minutes away: D'Amico, 2014 QCCQ 21006, at para. 309.
[246] Finally, the identification of the accused in the F. file was admitted. F. and the appellant knew each other. Only in this case did the trial judge rely on similar fact evidence, in order to show a “modus operandi” supporting the credibility of F.: D'Amico, 2014 QCCQ 21006, at paras. 338 and 340. Thus, she never relied on similar fact evidence to confirm the appellant’s identity.
[247] In my opinion, the trial judge did not err. Similar fact evidence may serve to bolster a complainant's credibility: Handy, [2002] S.C.R. 908, at paras. 115-120; Hill, Tanovich & Stezos, McWilliams’ Canadian Criminal Evidence, 5th ed., Toronto, Thomson Reuters Canada Limited, 2017, n° 10:40:20:10:10; Marc Rosenberg, “Similar Fact Evidence” in Special lectures of the Law Society of Upper Canada. 2003: The Law of Evidence (Toronto: Irwin Law, 2003), at p. 408.
[248] At trial, the purpose of the similar fact was to prove a modus operandi, that is: the specific propensity of the appellant to adopt, first, a pretext for sexual services and, second, an aggressive behaviour to impose sodomy on the sex-worker without her consent. Therefore, the similarity proposed by the Crown does not focus on particular details of how the crime was committed.
[249] In my view, the connecting points between the offences, proven to have been committed by the appellant, lend themselves to the inference that he has a specific propensity to sodomize sex workers without their consent.
[250] On that basis, I see no error in the decision of the trial judge.
[251] Furthermore, in B. (C.R.) McLachlin J. (as she then was) said:
As a consequence of the rejection of the category approach, the admissibility of similar fact evidence since Boardman is a matter which effectively involves a certain amount of discretion. As pointed out in Morris, the weight to be given to evidence is a question for the trier of fact. Generally, where the law accords a large degree of discretion to a trial judge, courts of appeal are reluctant to interfere with the exercise of that discretion in the absence of demonstrated error of law or jurisdiction.
B. (C.R.), [1990] 1 S.C.R. 717, 733 (my emphasis).
[252] I would not give effect to this ground.
VII. Identification in the N. Case
[253] This ground is without merit and I will deal with it summarily.
[254] The appellant attacks the identification evidence in the N. case. He says that the trial judge erred in concluding that it had been proven beyond a reasonable doubt on the basis of: (1) photo line-up evidence (2) a note containing a licence plate number, and (3) a stain found on beige trousers.
[255] The appellant claims that N. admitted having seen the appellant on television around that time. Contrary to the appellant’s view, I do not read her testimony as saying affirmatively that she saw him on television before meeting with the police for the photo line-up. Indeed, that meeting was held on July 16, 2008, the same day the appellant was arrested. He was charged and appeared in court the next day, on July 17. The news releases were on July 18. This was documented in the evidence.
[256] The conflicting evidence allowed for the trial judge’s conclusion that N. necessarily saw the TV coverage after July 16: D’Amico, 2014 QCCQ 21006 at paras. 197 to 201. I see no error.
[257] If I may add, N. acknowledged that the television footage she saw spoke of a man being charged with four sexual assaults and more details. That happened on July 17.
[258] The appellant argues that the Sophonow inquiry's recommendations on how to conduct a photo line-up have become the standard to be followed by Canadian law enforcement agencies. It was not followed in this case and this affects, according to him, the weight that can be given to the photo line-up evidence: P. de C. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation. Winnipeg: Manitoba Justice, 2001.
[259] In view of the decisions of this Court and others, I would reject this argument. The simple fact of not following the Sophonow inquiry's recommendations is not sufficient, by itself, to diminish the probative value of the exercise: see Amiri, 2018 QCCA 417; Joseph, 2014 QCCA 2232, at paras. 41-42; Beaulieu, 2007 QCCA 402, at paras. 45, 55, 63 and 66, confirmed at [2008] 1 S.C.R. 3; Hanemaayer, 2008 ONCA 580, at para. 23; Doyle, 2007 BCCA 587, at paras. 12-13.
[260] The argument pertaining to the note with the licence plate number boils down to a mistake N. would have made in handing the wrong note to the police. With respect, this is entirely speculative and unsupported by the evidence.
[261] N. testified that after she was assaulted by the appellant and exited the SUV, she wrote down the plate number while the vehicle was stopped at the red light. She stored it away in her purse. There is no doubt that the police received the note from N., but nothing supports the existence of another note that N. could have mistakenly mixed up.
[262] Finally, the appellant contends that the evidence could support a chain of custody issue, which could not be ignored in assessing the weight to be given to the forensic analysis of the sperm found on N.’s clothing. The appellant finds it to be peculiar that the complainant was wearing a pair of beige trousers and a pair of blue pants, one on top of the other during the assault and that the beige trousers where returned separately for the Sexual Assault Evidence Kit, and the disappearance of some samples initially part of that kit. With respect, the trial judge did not ignore it as reflected in her reasons: D’Amico, 2014 QCCA 21006, at paras. 156 to 193.
[263] In my view, the trial judge made two important findings. First, the forensic analysis confirmed that N. did indeed wear the beige pants under the blue pants, some samples being present on both; D’Amico, 2014 QCCA 21006, at para. 189. Second, the DNA profile of the appellant was found in the back of the crotch, mixed with the profile of N.: D’Amico, 2014 QCCA 21006, at para. 192. In my view, the appellant’s argument with the difficulties found in the chain of custody, involving other specific samples, is truly unacceptable. This argument, however, does not affect in the least the probative value of the two determinative forensic analyses conducted.
[264] I would reject that ground of appeal.
VIII. Evaluation of the Evidence in the F. Case
[265] Parts of F.’ testimony were difficult to understand. In summarizing her testimony, in his factum, the appellant writes:
In fact, she did not even remember saying anything when he would have allegedly moved from the driver's to the passenger's seat. As such, how the Appellant would have, (1) his pants dropped, (2) moved from the driver's seat to the passenger's seat, (3) while C.M.F. was kneeled on the console which separated them, (4) gotten behind C.M.F., (5) pulled down her pants and (6) sodomised her, remains an astonishing and gravity defying mystery. These incongruences were too important to go unaddressed in the Honourable Trial Judge's reasons for judgment.
[266] It is correct to say that, after examination and cross-examination, F. could not clearly explain how the aggression, which had occurred ten years before the trial actually took place. The appellant says relying on similar fact evidence could not cure this serious lacuna and submits that the following passage of David Watt’s evidence manual applies to his case. The learned author and judge writes that a jury must be warned “not to jump to the conclusion that if one complainant is telling the truth, the others must be telling the truth as well.”: David Watt, Watt's Manual of Criminal Jury Instructions, Second Edition (Toronto: Thomson Reuters, 2015), Final 28-D, at p. 365.
[267] I totally agree. Nevertheless, Watt J. continues and says that jurors “may, but do not have to find that there is among the offences, a distinctive pattern of conduct on [the accused]’s part. Such a distinctive pattern of conduct may help you in deciding whether a particular complainant is telling the truth when s/he says that [the accused] committed an offence on him (her). It is for you to say.” David Watt, Watt's Manual of Criminal Jury Instructions, Second Edition (Toronto: Thomson Reuters, 2015), Final 28-D, at p. 365.
[268] That is an undisputed statement of the law. I think the trial judge applied it. While it is true that the reasons do not elaborate on the issue, once the evidence is properly admitted, it is to be weighed by the trier of fact. It is for the trier of fact to determine if this evidence helps resolve any credibility issues, along with the advantage to have seen the witness testify. Deference is owed and I would not intervene.
CONCLUSION
[269] For the above-stated reasons, I would dismiss the appeal.
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MARTIN VAUCLAIR, J.A. |
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MOTIFS DE LA JUGE THIBAULT* |
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[270] L’appelant se pourvoit contre un jugement rendu par la Cour du Québec[1], qui le déclare coupable des cinq premiers chefs d’accusation suivants et prononce un arrêt des procédures à l’égard du chef no 6 :
1. On or about June 1, 2004, in Montréal, district of Montréal, did commit a sexual assault on C.-M. F., committing thereby the indictable offence provided by section 271 (1) a) of the Criminal Code.
2. On or about September 23, 2005, in Montréal, district of Montréal, in committing a sexual assault on C. G., did cause bodily harm to him, committing thereby the indictable offence provided by section 272 (1) c) (2) b) of the Criminal Code.
3. On or about March 23, 2003, in Montréal, district of Montréal, did commit a sexual assault on L. N., committing thereby the indictable offence provided by section 271 (1) a) of the Criminal Code.
4. On or about November 13, 2002, in Montréal, district of Montréal, did commit a sexual assault on J. H., committing thereby the indictable offence provided by section 271 (1) a) of the Criminal Code.
5. On or about November 13, 2002, in Montréal, district of Montréal, did commit an assault on J. H., committing thereby the indictable offence provided by section 266a) of the Criminal Code.
6. On or about November 13, 2002, in Montréal, district of Montréal, did knowingly utter a threat to cause death or bodily harm to J. H., committing thereby the indictable offence provided by section 264.1 (1) a) (2) a) of the Criminal Code.
[271] Pour échapper à sa responsabilité criminelle, l’appelant propose sept moyens d’appel. La juge de première instance aurait commis plusieurs erreurs : (1) en n’ordonnant pas la communication de l’ensemble du dossier d’enquête portant sur le meurtre de Mme Nicole Blanchette pour lequel l’appelant avait été suspecté; (2) en rejetant sa requête pour séparation des chefs d’accusation; (3) en admettant en preuve les déclarations extrajudiciaires de Mme C... G...; (4) en admettant en preuve le relevé des appels au service d’urgence 911; (5) en utilisant la preuve de faits similaires; (6) en admettant en preuve les rapports d’expertise établissant son empreinte génétique; et (7) en rendant des verdicts déraisonnables.
[272] Je fais miens les motifs et les conclusions de mon collègue Vauclair sur tous les moyens d’appel proposés par l’appelant à l’exception de celui portant sur la preuve établissant son empreinte génétique. Dans ce dernier cas, j’exposerai mes propres motifs.
[273] En ce qui concerne la preuve de son empreinte génétique, l’appelant prie la Cour d’exclure l’analyse découlant des échantillons de substances corporelles qu’il a laissées sur une tasse dans un restaurant. Cette tasse a été recueillie par la police aux termes d’une habile opération exécutée par des agents doubles et organisée en vue d’obtenir des échantillons de ses substances corporelles, d’en dégager son profil génétique et de le comparer à celui retrouvé sur Mme Nicole Blanchette et Mme L… N..., deux prostituées victimes d’agression sexuelle et de meurtre dans le cas de la première et d’agression sexuelle dans le cas de la seconde.
[274] Selon lui, la méthode utilisée par la police pour obtenir ces échantillons viole les droits que lui garantissent les articles 7 et 8 de la Charte :
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7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
8. Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives. |
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure. |
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[275] Les accusations portées dans le présent dossier font suite à une enquête criminelle menée par la police en 2007 dans un tout autre dossier, qui concerne le meurtre de Mme Nicole Blanchette, une prostituée. Celle-ci est retrouvée sans vie, face contre terre, dans un parc de Montréal. Ses pantalons sont descendus jusqu’aux genoux. L’autopsie révèle qu’elle a été agressée sexuellement et qu’elle a ensuite été étranglée. Des échantillons de substances corporelles sont prélevés aux fins d’une analyse génétique.
[276] Le 1er novembre 2007, à l’occasion de cette enquête (dans l’affaire Blanchette), les policiers de l’équipe des crimes majeurs reçoivent des informations d’un policier de l’équipe des crimes d’agression sexuelle. Le modus operandi du meurtre de Mme Blanchette présenterait des similitudes frappantes avec celui d’autres cas d’agressions sexuelles non résolus pour lesquels l’appelant est également suspect.
[277] Le 9 avril 2008, une comparaison du profil génétique associé aux échantillons prélevés lors de l’agression sexuelle de L… N... avec celui établi par l’analyse des substances prélevées lors du meurtre de Nicole Blanchette ne montre aucune correspondance. Cela semble indiquer que l’agresseur et le meurtrier ne sont pas la même personne. Ce résultat n’empêche pas les policiers de continuer leur enquête.
[278] Après une filature de l’appelant pendant deux jours les 9 et 11 avril 2008, les policiers ne récupèrent aucun élément leur permettant de faire une analyse génétique. Ils planifient alors une opération policière déguisée. Une policière agit comme agent double et simule une rencontre d’affaires avec l’appelant. Lors de la première rencontre, la policière rencontre l’appelant à son domicile (dont il se sert également comme lieu de travail) sous prétexte de s’intéresser à ses affaires. Elle suggère une deuxième rencontre. L’appelant accepte et propose que le rendez-vous se tienne dans un café de son choix.
[279] Le 16 avril 2008, la policière arrive au café en question avant l’appelant. Quand celui-ci s’y présente, elle lui dit qu’elle va s’acheter un café. L’appelant lui répond qu’il en désire un aussi. Ils se présentent au comptoir. Ils commandent leurs cafés, que l’appelant paie. La caissière sert les cafés à leur table. Elle donne à l’appelant une tasse bleue et à la policière une tasse noire. Vers 5 h 20, cette dernière remarque que l’appelant a presque terminé son café. Elle lui demande s’il en souhaite un autre. Il répond non et ajoute qu’il a terminé son café. La policière déclare qu’elle va débarrasser la table pour faire de la place.
[280] Elle se lève et porte les tasses sur le comptoir. Un autre agent double récupère la tasse utilisée par l’appelant.
[281] Le 17 avril 2008, cette tasse est envoyée au Laboratoire de sciences judiciaires et de médecine légale. La police demande de comparer le profil génétique associé aux substances corporelles qui s’y trouvent avec ceux obtenus dans les dossiers d’enquête portant sur le meurtre de Nicole Blanchette et sur l’agression sexuelle de L… N....
[282] L’analyse génétique élimine l’appelant comme l’auteur du meurtre de Nicole Blanchette, mais elle montre une correspondance possible avec le profil génétique recueilli dans le cas de l’agression sexuelle de L… N.... Une comparaison est également faite avec d’autres profils génétiques recueillis sur des scènes de crimes et versés dans la banque locale d’ADN. Il en ressort aussi une correspondance avec le profil génétique recueilli dans le cas de l’agression sexuelle de C... G....
[283] C’est sur la foi de ces informations que, le 8 octobre 2008, la police obtient un mandat pour prélever des échantillons de substances corporelles de l’appelant en vertu de l’article 487.05 C.cr. L’analyse de ces substances démontre que l’appelant a commis les agressions sexuelles sur L… N… et C... G....
[284] Ces dernières sont deux des quatre victimes d’agressions sexuelles visées par le présent appel, comme nous le verrons ci-après. L’enquête policière menée à l’époque des crimes n’avait apparemment pas permis de découvrir l’identité de leur agresseur. L’appelant était cependant le principal suspect.
[285] Le 16 juillet 2008, l’appelant est arrêté et des accusations sont portées contre lui.
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[286] Revenons à la preuve faite dans les dossiers visés par l’appel. Cet exercice est impératif parce que c’est le contexte qui permet de décider de l’existence ou non d’une violation de l’article 8 de la Charte.
[287] Dans chacune des quatre situations, l’appelant utilise une méthode similaire. Il aborde ses victimes, mesdames H..., N..., F... et G..., sur la rue. Ce sont des prostituées. Elles acceptent de lui faire une fellation moyennant rémunération. Elles montent à bord du véhicule qu’il conduit, un VUS noir. L’appelant viole ou sodomise ses victimes avec une grande brutalité. Les agressions surviennent à l’intérieur du véhicule stationné dans un endroit isolé dans la ville de Montréal.
[288] Voici, en résumé, ce que révèle la preuve pour chacune des victimes.
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[289] Le 13 novembre 2002, Mme J... H... monte à bord du véhicule conduit par l’appelant, un camion VUS noir. Elle accepte de lui faire une fellation moyennant rémunération. Il stationne le véhicule près de la rue Fullum, dans un endroit sombre. Dès le début de la fellation, l’appelant pousse très profondément la tête de Mme H... sur son pénis, au point où celle-ci a de la difficulté à respirer. Elle finit par relever la tête. Elle dit à l’appelant qu’il lui fait mal et qu’elle veut que tout arrête. Il saisit son bras d’un air menaçant; elle lui donne un coup avec son poing; il réplique immédiatement avec plusieurs coups de poing au visage. Puis, l’appelant s’installe sur Mme H...; il l’immobilise en appliquant avec force son poing sur sa gorge; il la pénètre dans le vagin. Manquant d’air, Mme H... prend panique et se met à frapper l’appelant. Soudainement, celui-ci retourne sur son siège; il étend le bras pour ouvrir la portière du véhicule et il en expulse Mme H..., à demi vêtue, alors que le véhicule est en mouvement.
[290] Deux femmes viennent au secours de Mme H.... L’une d’elles téléphone au service d’urgence 911 pour demander de l’aide. Elle décrit le véhicule dont vient d’être expulsée la victime, un VUS noir, et donne le numéro de sa plaque d’immatriculation ([...]). Un policier est dépêché sur les lieux; il constate les blessures de Mme H.... Un autre policier, qui patrouille dans les environs, entend sur les ondes radio qu’une femme vient d’être agressée; il intercepte le véhicule conduit par l’appelant dans les minutes qui suivent le message radio, et ce, à une très courte distance du lieu où est survenue l’agression, soit 6 kilomètres. Il s’agit d’un VUS noir, qui porte la plaque numérotée [...]. Il décrit l’appelant comme un homme blanc, Italien, qui mesure 180 cm et pèse 91 kg. Il a les yeux et les cheveux bruns. Il constate que ces informations concordent avec celles qui apparaissent sur son permis de conduire et que c’est l’appelant qui est au volant du véhicule.
[291] L’enquête policière est suspendue apparemment en raison du manque de collaboration de Mme H.... Elle est reprise en novembre 2007 lors de l’enquête portant sur le meurtre de Mme Nicole Blanchette.
[292] La juge conclut à la culpabilité de l’appelant quant aux chefs no 4, 5 et 6 sur la foi : (a) du témoignage de Mme H...; (b) de celui du témoin qui a téléphoné au service d’urgence et donné le numéro de la plaque d’immatriculation du véhicule; et (c) du rapport des policiers qui confirme l’appel au service d’urgence ainsi que l’identité de Mme H...; et (d) du témoignage du policier qui a intercepté l’appelant dans les minutes suivant l’agression sexuelle.
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[293] Le 22 mars 2003, Mme L... N... monte à bord d’un camion noir. Elle accepte de faire une fellation à l’appelant moyennant 20 $. Celui-ci stationne le camion dans un endroit isolé à proximité. Mme N... commence la fellation. Immédiatement, l’appelant prend la tête de sa victime entre ses mains et la pousse très fortement sur son pénis. Elle pressent que quelque chose ne va pas. L’appelant baisse le pantalon de Mme N... et tente d’introduire son doigt dans son anus pendant qu’elle fait la fellation. Puis, l’appelant retourne Mme N... et la sodomise brutalement. Mme N... est très effrayée, elle ne se débat pas et ne crie pas.
[294] Éventuellement, elle sort du véhicule. Elle note le numéro de la plaque d’immatriculation ([...]). Elle téléphone à la police, rapporte l’agression sexuelle et décrit son agresseur : l’homme parle avec un accent italien, sans barbe, les yeux bruns, qui pèse au moins 190 livres. Elle décide de porter plainte deux jours après. Les policiers la conduisent à l’hôpital pour la prise de prélèvements. Elle remet aux policiers les vêtements qu’elle portait lors de l’agression.
[295] À l’hôpital, des prélèvements sont faits. Les résultats de l’analyse génétique sont versés dans la banque nationale des données génétiques.
[296] En 2010, des analyses génétiques additionnelles sont faites. Elles établissent que le sperme trouvé sur le pantalon porté par Mme N... le 22 mars 2003 est celui de l’appelant.
[297] La juge conclut à la culpabilité de l’appelant quant au chef no 3 sur la foi : (a) du témoignage non contredit de Mme N...; (b) du numéro de la plaque d’immatriculation noté qui est celui du véhicule du père de l’appelant à l’époque pertinente; (c) de la description de l’appelant faite par Mme N... aux policiers lorsqu’elle les a rencontrés après l’agression en mars 2003; (d) de l’identification de l’appelant lors d’une parade d’identification; (e) de l’identification de l’appelant faite à la Cour; et (f) de la preuve scientifique de l’empreinte génétique de l’appelant.
*****
[298] Le 1er juin 2004, Mme Cl... F... travaille comme prostituée. Elle monte à bord du VUS noir conduit par l’appelant, qu’elle connaît pour l’avoir eu comme client à deux reprises. Elle accepte de lui faire une fellation pour 20 $. L’appelant conduit le véhicule dans un stationnement obscur qui comporte une seule voie pour y entrer et en sortir. À un certain moment, il la sodomise brutalement et contre son gré. Après l’agression, elle quitte le véhicule sans avoir remis son pantalon. Elle note le numéro de la plaque d’immatriculation du véhicule ([...]).
[299] Le lendemain, Mme F... se rend dans un organisme communautaire qui aide les prostituées. Elle fait une plainte « informelle » pour prévenir les autres prostituées du danger que l’appelant représente. Elle remplit un document sur lequel elle écrit le numéro de la plaque d’immatriculation noté.
[300] Un mois plus tard, elle voit la photo de l’appelant dans le journal Mirror. Elle garde la coupure qu’elle remet au policier rencontré quatre ans plus tard le 3 septembre 2008. Elle a, en effet, déposé sa plainte auprès de la police après l’arrestation de l’appelant.
[301] La juge conclut à la culpabilité de l’appelant quant au chef no 1 en raison : (a) du témoignage de Mme F... qui a décrit son agresseur et donné le numéro de plaque de la voiture qu’il conduit; et (b) de la preuve de fait similaire utilisée pour rehausser la crédibilité du témoignage de Mme F....
[302] La 4e victime, Mme C... G... n’a pas témoigné lors du procès, car elle est décédée le 24 septembre 2008. Elle a fait une déclaration écrite le 29 septembre 2005 et une déclaration vidéo sous serment le 1er juillet 2008 après la reconnaissance d’une correspondance entre l’empreinte génétique de substances corporelles obtenues à partir de la tasse utilisée par l’appelant et celle retrouvée dans le rectum de Mme G... et sur les vêtements qu’elle portait lors de l’agression. Elle décrit son assaillant de la façon suivante : un homme blanc, début trentaine, mesurant 6 pieds, qui parle français, mais pas un « franc québécois ».
[303] Le 23 septembre 2005, Mme G... marche sur la rue. Il pleut. Elle est trempée. L’appelant immobilise son véhicule et lui offre de la conduire chez elle. Elle monte à bord du VUS noir. Rendus dans une ruelle, l’appelant l’empoigne par les cheveux et l’entraîne à l’arrière du véhicule. Il verrouille les portes. Il la force à lui faire une fellation, la maintenant toujours par les cheveux. Puis, il la retourne et la sodomise brutalement. Mme G... hurle de douleur. Ensuite, l’appelant la pénètre dans le vagin. Finalement, il la jette nue à la rue, en lui lançant ses vêtements.
[304] Mme G... est secourue par un homme qui sort d’un taxi. Elle lui demande de téléphoner au service d’urgence 911, lui révèle qu’elle vient d’être violée et sodomisée. Le policier arrive sur les lieux. Mme G... décrit son agresseur et son véhicule. L’agent conduit Mme G... à l’hôpital. Un médecin constate notamment une contusion périanale importante. Des prélèvements de substances corporelles sont faits.
[305] Deux rapports d’expertises sont rédigés. Le premier, daté du 26 septembre 2006, établit le profil génétique d’un homme à partir du sperme prélevé dans le rectum de Mme G.... À cette époque, l’identité de l’agresseur n’est pas confirmée faute de données. Le second rapport, daté du 13 juillet 2009, établit une correspondance entre le profil génétique des substances prélevées sur Mme G... en 2005 et celles obtenues de l’appelant à la suite du mandat délivré en 2008. Plus précisément, il établit que la probabilité de retrouver le même profil chez un autre individu est si faible (1 sur 300 millions) que l’on doit conclure qu’il s’agit du même individu.
[306] La juge conclut à la culpabilité de l’appelant quant au chef no 2 en tenant compte : (a) des déclarations de Mme G...; (b) du témoignage de l’individu qui l’a secourue;(c) du témoignage du policier qui l’a conduite à l’hôpital; (d) du personnel de l’hôpital; et (e) de la preuve de l’empreinte génétique de l’appelant.
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[307] Je retiens de la preuve que, au cours d’une enquête policière en lien avec le meurtre d’une prostituée, un crime dont le modus operandi s’apparente à des cas d’agression sexuelle non résolus pour lesquels l’appelant est un suspect, la police obtient, au moyen d’une méthode d’enquête menée par deux agents doubles, des substances corporelles dont l’analyse génétique permet de conclure que l’appelant est l’auteur des agressions sexuelles subies par mesdames C... G... et L... N.... Cette analyse a aussi conduit à la délivrance d’un mandat relatif aux analyses génétiques en vertu de l’article 487.05 C.cr. L’analyse des substances obtenues en vertu du mandat confirme que l’appelant est l’auteur des agressions sexuelles subies par L... N... et C... G....
[308] Y a-t-il eu violation des droits fondamentaux de l’appelant lorsque la police a recueilli la tasse que ce dernier a utilisée au restaurant pour faire une analyse de ses substances corporelles?
[309] Dans son jugement du 21 janvier 2013[2], la juge de première instance conclut à l’absence de violation de l’article 8 de la Charte appliquant notamment les enseignements de la Cour suprême dans R. c. Patrick[3]. Selon elle, l’appelant a librement choisi d’abandonner sa tasse et l’enquête policière qui a permis d’établir son empreinte génétique n’est pas condamnable, vu les circonstances.
[310] L’abandon est une question de fait. Il s’agit d’examiner l’ensemble des circonstances et de décider si la façon dont s’est comportée une personne à l’égard d’une chose permettrait à un observateur raisonnable de conclure qu’elle a renoncé à revendiquer le droit au respect de sa vie privée. Cette chose a-t-elle été laissée de façon définitive ou non? A-t-elle été laissée dans un lieu public, semi-public ou privé? A-t-elle été laissée dans un endroit accessible au grand public ou à un groupe de personnes plus ou moins restreint? Y a-t-il d’autres raisons valables qui permettent de conclure ou non à la renonciation au droit au respect de sa vie privée? etc.
[311] Le tribunal « appelé à apprécier le caractère raisonnable de la revendication au respect de la vie privée doit considérer l’ensemble des circonstances, et ce, que la revendication en question comporte des aspects touchant à l’intimité personnelle, à l’intimité territoriale ou à l’intimité informationnelle »[4]. Le cadre d’analyse suggéré par la Cour suprême dans R. c. Tessling[5] est repris dans Patrick précité. Il faut d’abord décider si l’appelant possède une attente raisonnable en matière de respect de sa vie privée. Le cas échéant, il s’agit d’examiner si cette attente a été violée par la conduite de la police. Les facteurs suivants, qui comprennent l’abandon, sont pertinents, en faisant les adaptations nécessaires[6] :
(1) L’intimé avait-il une attente raisonnable en matière de respect de sa vie privée?
[27] Vu les faits en l’espèce, il faut répondre aux questions suivantes :
1. Quel est l’objet ou la nature des éléments de preuve recueillis par la police?
2. L’intimé possédait-il un droit direct à l’égard du contenu?
3. L’intimé avait-il une attente subjective en matière de respect de sa vie privée relativement au contenu informationnel des ordures?
4. Dans l’affirmative, cette attente était-elle objectivement raisonnable? À cet égard, il faut se poser les questions suivantes :
a. De façon plus particulière, en ce qui concerne l’endroit où la « fouille ou perquisition » contestée a eu lieu, la police a-t-elle commis une intrusion sur la propriété de l’appelant et, dans l’affirmative, quelle est l’incidence de cette conclusion sur l’analyse relative au droit au respect de la vie privée?
b. Le contenu informationnel de l’objet était-il à la vue du public?
c. Le contenu informationnel de l’objet avait-il été abandonné?
d. Ces renseignements étaient-ils déjà entre les mains de tiers et, dans l’affirmative, ces renseignements étaient-ils visés par une obligation de confidentialité?
e. La technique policière avait-elle un caractère envahissant par rapport au droit à la vie privée en cause?
f. Le recours à cette technique d’obtention d’éléments de preuve était-il lui-même objectivement déraisonnable?
g. Le contenu informationnel révélait-il des détails intimes sur le mode de vie de l’intimé ou des renseignements d’ordre biographique le concernant?
(2) Si l’appelant avait une attente raisonnable en matière de respect de sa vie privée en l’espèce, a-t-elle été violée par la conduite de la police?
[Caractères gras ajoutés; soulignements et italiques dans l’original]
[312] Deux approches peuvent être envisagées pour conclure à l’existence ou non d’une attente raisonnable en matière de respect de la vie privée.
[313] La première met l’accent et se concentre uniquement sur la nature de l’objet recueilli - des substances corporelles - un objet hautement personnel à l’égard duquel une personne possède indubitablement un droit direct, et pour lequel elle jouit d’une attente subjective au respect de sa vie privée. Sauf les cas de consentement à une analyse génétique ou lorsque celle-ci est autorisée par la loi ou un tribunal, une personne serait en droit de s’attendre à ce que ce renseignement exclusif, intime et confidentiel ne lui soit pas subtilisé. Selon cette approche, même si la saisie de l’objet, ici la tasse, s’est déroulée dans un lieu public et que la technique policière utilisée n’a pas eu, en soi, un caractère envahissant, rien ne permettrait de conclure que cette personne a, de façon explicite ou implicite, abandonné ses substances corporelles permettant de connaître le contenu informationnel hautement personnel tiré de l’analyse génétique de ses substances corporelles. Cette personne aurait simplement laissé l’objet, ici la tasse, qui a servi à boire son café au restaurant qui en est propriétaire et pas son empreinte génétique.
[314] À mon avis, cette approche doit être écartée, compte tenu de la jurisprudence, notamment de l’arrêt Patrick précité. En fait, elle ne permettrait jamais à la police de recueillir un objet laissé par une personne pour analyser ses substances corporelles pour en dégager son empreinte génétique, car c’est l’objet qui serait abandonné et non l’empreinte génétique de la personne qui l’a utilisé. Une telle conclusion va à l’encontre des enseignements de la Cour suprême dans Patrick précité. Le juge Binnie écrit que, lorsqu’un objet est abandonné, il l’est avec tout renseignement confidentiel s’y trouvant[7]. Il serait réducteur de retenir de mon propos que la restriction au pouvoir d’enquête de la police est le seul facteur qui permet de conclure à l’absence de violation de l’article 8 de la Charte.
[315] Dans l’affaire Patrick, la juge Abella, préoccupée par la possibilité d’intrusion aléatoire de l’État dans la vie des citoyens, rejette l’idée que des renseignements personnels perdent automatiquement leur caractère privé du seul fait qu’ils font partie d’ordures ménagères laissées au chemin en vue de leur collecte. Elle convient cependant que la police peut fouiller les ordures ménagères lorsqu’elle possède suffisamment d’éléments de preuve pour étayer des motifs raisonnables qu’un crime a été commis par l’individu sujet de la fouille. Je partage la préoccupation et l’avis de la juge Abella. Tout est question de contexte.
[316] Or, je rappelle que, dans notre dossier, la police possédait suffisamment d’informations pour justifier l’existence de motifs raisonnables de collecter la tasse. Son enquête avait révélé une description concordante de l’appelant par les victimes, une description concordante du véhicule par les victimes, la connaissance du même numéro de plaque d’immatriculation du véhicule par trois d’entre elles et l’arrestation de l’appelant à proximité du lieu de l’une des agressions, dans les minutes suivant cette agression, alors qu’il est au volant du véhicule dans lequel se sont déroulées les infractions.
[317] La deuxième approche pour savoir si un accusé a une attente raisonnable en matière de respect de sa vie privée a été exposée dans l’arrêt rendu par la Cour dans Usereau c. R.[8], qui s’appuie notamment sur l’arrêt R. c. Love[9] de la Cour d’appel de l’Alberta ainsi que sur les arrêts rendus par la Cour suprême dans R. c. Stillman[10] et R. c. Patrick[11]. C’est l’état du droit actuel sur la question. Elle supporte la thèse selon laquelle la police peut, à l’occasion d’une enquête policière portant sur une personne suspectée d’avoir commis un crime, librement collecter les objets abandonnés par celle-ci dans un lieu public pour en dégager une empreinte génétique lorsqu’elle n’est pas détenue[12], en considérant que l’abandon est une question de fait, d’une part, et que l’attente raisonnable en matière de vie privée doit être évaluée en appliquant les critères de l’arrêt Patrick précité, d’autre part. Voici ce que la Cour écrit dans Usereau précité :
[42] The gathering of the glass and straw in the restaurant at which Mr. Usereau had been followed falls squarely within the parameters of this distinction, which was well described by Alan D. Gold in The Practitioner's Criminal Code 2010:
A person gives up any privacy interest in voluntarily abandoned property, but an owner retains a privacy interest in stolen property when it is subsequently recovered by the police.
Individuals have a reasonable expectation of privacy that confidential medical information will not be revealed. Where the accused not in custody, discards something that offers potentially valuable DNA evidence the police may ordinarily collect and test the item without any concern about the accused's consent because he has abandoned the item. When the accused is in custody on the other hand, the same standards would be unfair to apply. Whether there has been an abandonment and elimination of any privacy interest in what has been discarded is to be determined on the facts of the particular case. The privacy expectation of those in custody would be effectively eliminated because of their inability to control their discards if any seizure of bodily samples without consent were permitted.
[Emphasis added - References omitted]
[43] This interpretation has been generally followed and applied by Canadian courts, even prior to the Supreme Court's judgment in Stillman. For example, in R. v. Love the Alberta Court of Appeal determined that an accused's privacy rights under section 8 of the Canadian Charter were not engaged with respect to a tissue he had discarded in a motel room from which he had checked out since the tissue had been abandoned. The DNA evidence obtained from the tissue that matched DNA evidence from blood at the scene of the crime was thus held to be admissible.
[44] More recently, the issue of abandonment was considered by the Supreme Court of Canada in R. v. Patrick, a case in which an accused claimed an infringement of section 8 of the Canadian Charter. The police discovered drug paraphernalia in his garbage that led to a search warrant being obtained for his dwelling. The accused was convicted of possession, production and trafficking of a controlled substance (ecstasy) based on evidence obtained from his garbage and the subsequent search of his dwelling. A majority of the Alberta Court of Appeal dismissed the appeal, as did the Supreme Court.
[45] Writing on behalf of seven of his colleagues, Binnie, J. said this on the issue of abandonment:
[22] In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is "best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it" (p. 435).
[23] In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that "[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded" (para. 223). (To the same effect see Cory J. for the majority at para. 62, and Major J., concurring in part, at para. 274.)
[24] This may be contrasted with the situation in R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 , where a locked safe containing confidential documents had been stolen (not discarded) and the accused had never acted in a manner inconsistent with the continued assertion of a privacy interest in the information contained therein. When the police, after recovering the stolen safe, decided to scrutinize the documents inside (and the accused subsequently was charged with tax offences), they infringed the s. 8 reasonableness line.
[25] Abandonment is therefore an issue of fact. The question is whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances.
[46] Applying that test, as a question of fact there can be little doubt that a reasonable and independent observer would conclude that Mr. Usereau's continued assertion of a privacy interest in a glass and a straw after he had left a restaurant is unreasonable in the totality of the circumstances.
[Soulignements ajoutés; renvois omis]
[318] L’arrêt Usereau prend appui notamment sur l’affaire R. c. Stillman[13], comme je l’ai déjà écrit, dans laquelle la Cour suprême écrit :
62 Par conséquent, lorsqu’un accusé qui n’est pas détenu jette un papier-mouchoir ou un mégot de cigarette, la police peut normalement recueillir ces objets et les faire analyser, sans avoir à se soucier d’obtenir un consentement. La situation est différente lorsqu’un accusé qui est détenu jette des objets contenant des substances corporelles. Il est évident qu’un accusé en détention ne peut pas empêcher les autorités de s’emparer de ces objets. La question de savoir si la situation était telle que l’accusé a abandonné les objets et renoncé à tout droit à ce qu’ils demeurent confidentiels devra être tranchée en fonction des faits particuliers de chaque affaire.
[Soulignement ajouté]
[319] Ce paragraphe de Stillman est cité par la Cour suprême avec approbation dans R. c. Tessling[14] :
40 Il est vrai que nul ne saurait avoir d’attente raisonnable en matière de vie privée relativement à ce qu’il expose sciemment au public, ou à une partie du public, ou à ce qu’il abandonne dans un endroit public (R. c. Boersma, [1994] 2 R.C.S. 488; Stillman, précité, par. 62, le juge Cory, par. 226, et la juge McLachlin (maintenant Juge en chef), dissidente; Evans, précité, par. 50, le juge Major, motifs concordants; Baron c. Canada, [1993] 1 R.C.S. 416, p. 453; Dyment, précité, p. 435; R. c. Monney, [1999] 1 R.C.S. 652, par. 45).
[Soulignement ajouté]
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[320] Il s’agit maintenant de décider si la juge de première instance a, vu le cadre juridique applicable et toutes les circonstances, commis une erreur en décidant que la preuve de l’empreinte génétique de l’appelant n’a pas été obtenue en violation de son droit à la vie privée.
[321] À mon humble avis, sa démarche et sa conclusion sont exemptes d’erreurs. Elle a examiné et appliqué les facteurs énumérés dans l’arrêt Patrick précité : (a) la technique policière utilisée n’est pas objectivement condamnable; (b) elle a été planifiée dans le contexte d’une enquête portant sur un meurtre pour lequel l’appelant était soupçonné; (c) la rencontre s’est tenue dans un lieu public; (d) l’appelant a volontairement consommé un café; (e) il ne s’est pas opposé à ce que l’agent double débarrasse la table; (f) il a continué à travailler sur son ordinateur, sans se préoccuper du sort réservé à sa tasse. La juge conclut, à bon droit, que l’appelant a abandonné la tasse et qu’il n’y avait en l’espèce aucune violation de son droit au respect de sa vie privée.
[322] Dans le cas contraire, pour les motifs énoncés par mon collègue Vauclair, j’aurais conclu, comme lui, lors de l’application du paragraphe 24(2) de la Charte que la preuve ne doit pas être exclue en application des trois critères énoncés dans l’arrêt R. c. Grant[15].
[323] Avant de clore sur le sujet de la violation par la police du droit que l’article 8 de la Charte garantit à l’appelant, je tiens à prendre mes distances par rapport à certaines affirmations faites par le juge Ruel dans ses motifs. Il me semble que plusieurs faits énoncés ne sont pas de connaissance judiciaire et qu’ils n’ont pas été établis par un expert. Même si ces faits étaient de connaissance judiciaire, il appert qu’ils s’écartent du contexte de notre affaire et, en ce sens, ils appuient une thèse plutôt désincarnée. Vu cette situation, les avocats des parties n’ont pas été consultés sur le sujet et ils n’ont pas fait valoir leur point de vue. Sans cet apport indispensable, je préfère m’abstenir de commenter.
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[324] Un autre aspect d’intérêt doit être considéré dans notre dossier. Même si la cueillette de la tasse par la police avait été faite en violation des droits de l’appelant, il faut conclure que, dans les circonstances de l’espèce, l’impact de cette violation est totalement inexistant.
[325] L’examen de l’ensemble de la preuve dont jouissait l’intimée - soit la description concordante de l’appelant par les victimes, la description concordante par ces dernières de son véhicule, la connaissance du numéro de la plaque d’immatriculation du véhicule par trois d’entre elles, l’arrestation de l’appelant à proximité du lieu de l’une des agressions, et ce, dans les minutes suivant l’agression - aurait, en effet, permis à un juge de conclure qu’il existait des motifs raisonnables de croire qu’une infraction désignée a été perpétrée et que l’appelant y a participé. Cela emporte que, même en l’absence des informations découlant de la saisie de la tasse, il y avait au dossier suffisamment d’éléments pour autoriser la délivrance d’un mandat en vertu de l’article 487.05 C.cr.[16].
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[326] Pour ces motifs, je suis d’avis de rejeter l’appel.
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FRANCE THIBAULT, J.C.A. |
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REASONS OF RUEL, J.A. |
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[327] I read with interest the reasons of my colleagues Vauclair and Thibault JJ.A.
[328] Like Thibault J.A., I concur with the reasons and conclusions of my colleague Vauclair J.A. on every ground of appeal raised by the appellant, except for the ground concerning the evidence establishing his DNA profile.
[329] While I share the conclusion of Thibault J.A. that s. 8 of the Canadian Charter of Rights and Freedoms was not violated when the DNA samples were gathered, I would like to add comments pertaining to the reasonable expectation of privacy in this matter.
[330] Like Vauclair and Thibault JJ.A., I find that the evidence should not be excluded under s. 24(2), even if s. 8 of the Charter was violated. I would, however, add some considerations to the analysis of this issue made by Vauclair J.A.
The DNA Issue
[331] In the view of the trial judge, this was a straightforward question of abandonment. The appellant’s abandonment of the cup was fatal to any expectation of privacy in his DNA.[17]
[332] The judge found that the police operation during which the appellant’s DNA profile was obtained from the cup was not intrusive and was conducted in good faith, without coercion, threats or promises.
[333] The judge found that the cup was not seized by the police, but was merely collected.[18] In her opinion, therefore, it was an abandoned item. She wrote, “[t]he cup was abandoned by D’Amico in the restaurant. He had no expectation of privacy on the cup.”[19]
[334] Consequently, according to the judge, the appellant’s DNA samples were not collected from the cup in violation of s. 8 of the Charter, and the police had reasonable grounds to seek a warrant to collect samples of bodily substances from the appellant.
[335] In his reasons on that issue, Vauclair J.A. expresses that the true nature of what the police were looking for must be examined. In his view, it was not the cup, but rather the appellant’s DNA.
[336] Assessing the reasonable expectation of privacy from an informational perspective, he finds that DNA reveals private information that is very important to individuals. Even though people might constantly leave traces of DNA in public places through natural human processes, they cannot implicitly waive their right to the protection of their DNA information.
[337] Vauclair J.A. distinguishes R. v. Stillman[20] of the Supreme Court and Usereau c. R.[21] of this Court. While recognizing that these cases establish that individuals can abandon items on which their DNA can be found in certain circumstances, he concludes that the police may not target a person, as was done in this case, and set up a scenario to collect that person’s DNA without his or her knowledge, even in public places.
[338] He is of the view that such type of practice, which is intended to mislead citizens into abandoning their DNA, requires the issuance of a general warrant under s. 487.01 of the Criminal Code.
[339] Thibault J.A. applies R. v. Patrick[22] and Usereau, according to which when a person voluntarily abandons an item, he or she also abandons any confidential information found therein. She also considers the context in which the cup was collected, i.e., in a public place where the appellant has left the item. Thibault J.A. explains that the DNA profile obtained from the bodily substances left by the appellant on the cup was used only for the limited purpose of identification, like fingerprints.
[340] Thibault J.A. notes that the approach proposed by Vauclair J.A. would mean that the police could never collect an item discarded by a person in a public place to obtain DNA evidence because the informational content of the DNA evidence would always be be protected.
[341] Therefore, Thibault J.A. finds that the appellant’s DNA profile was not obtained in breach of s. 8 of the Charter.
[342] While I agree with Thibault J.A. that s. 8 of the Charter was not breached in this case, I would like to make the following comments.
[343] To determine whether a government action breaches s. 8 of the Charter, which protects everyone against unreasonable seizures, it must first be determined whether that action intruded upon a reasonable expectation of privacy. If it did, it constitutes a seizure within the meaning of s. 8. It must then be determined whether the seizure was an unreasonable intrusion on that right to privacy.[23]
[344] Privacy interests involve several aspects, including personal privacy, territorial privacy and informational privacy.[24] Informational privacy is at issue in this case.
[345] To assess whether a person can claim a reasonable expectation of informational privacy, the following must be considered: the nature or subject matter of the evidence gathered by the authorities; whether the informational content exposed any intimate details about the person’s lifestyle or information of a biographic nature; whether the informational content of the subject matter was in public view or was abandoned; and whether the information was already in the hands of third parties.[25]
[346] In short, as Thibault J.A. notes, assessing the reasonableness of an expectation of privacy involves multiple factors and requires that the totality of the circumstances be considered.[26]
[347] The issue of abandonment is central to this case.
[348] According to the trial judge, the appellant simply abandoned a cup in a public place, which includes everything that it carried or contained.
[349] With respect, I find that the theory of abandonment is inconsistent with the protection of private informational data in a person’s DNA.
[350] DNA, or deoxyribonucleic acid, is a very large molecule which is found inside human cells. DNA information is encoded in its structure in four different bases: adenine, thymine, cytosine and guanine (A, T, C and G), in an order specific to each individual. DNA is therefore particularly distinctive and unique to each person.[27]
[351] DNA is an extremely singular substance that is the result of millions of years of biological evolution. DNA is humanity’s genetic heritage and the key to each person’s individuality. It is sometimes referred to as the “blueprint of life” because it is the fundamental constitutent element of an individual’s genetic make-up.[28]
[352] Given these particularities, in my view, it is simply impossible to imagine that individuals implicitly abandon any protection to their genetic data through the natural loss of bodily substances in public.
[353] Molecular biology and genetic engingeering techniques are developing at a very fast pace. Human genome sequencing is already a reality.
[354] These techniques allow or will allow in a near future, genetic profiling, the identification of weaknesses, disease prediction,[29] therapeutic DNA modification, and human cloning (i.e., developing a human being genetically identical to the original human who provided the genome).
[355] Genetic information may also eventually be of great economic interest to employers who want to know whether a prospective applicant has an illness, or insurers who want to set a higher premium for someone predisposed to a debilitating medical condition.[30]
[356] The acquisition and handling of a person’s DNA raises extremely important and complex challenges. These scientific, moral, ethical and legal issues are not yet fully understood.
[357] There is therefore a very real risk of abuse related to the acquisition and use of human DNA.[31]
[358] I therefore believe, like Vauclair J.A., that, in principle, a person does not abandon the protection of his or her genetic data for use by the state or third parties, even for legitimate purposes, without explicit consent.
[359] In Stillman, the Supreme Court stated in obiter that where a person not in custody discards an item containing his or her DNA, that item may be collected for analysis without the person’s consent because, in the circumstances, the item was abandoned and the person relinquished any reasonable expectation of privacy in the item.[32]
[360] This Court also adopted a similar position in Usereau and quoted the following passage from a work by Alan D. Gold:
Individuals have a reasonable expectation of privacy that confidential medical information will not be revealed. Where the accused not in custody, discards something that offers potentially valuable DNA evidence the police may ordinarily collect and test the item without any concern about the accused's consent because he has abandoned the item.[33] [Emphasis in original]
[361] In R. v. Delaa, the Alberta Court of Appeal stated that voluntarily spitting out chewing gum was consistent with abandonment and that law enforcement could extract DNA from the gum and conduct forensic DNA analyses.[34]
[362] The case law therefore discusses the abandonment of the item on which the DNA is found, and not the DNA itself.
[363] In my opinion, individuals do not relinquish protection of their DNA data because they have disposed of an item that naturally contains DNA, such as a tissue or chewing gum or by spitting on the ground, or by leaving traces of DNA through natural biological processes such as hair loss or the elimination of human waste.
[364] As noted by the Supreme Court in R. v. Cole, discussing the search of a laptop, “the subject matter of the alleged search is the data, or informational content of the laptop’s hard drive ... not the devices themselves.”[35]
[365] The same reasoning applies here. The question is whether the appellant had a reasonable expectation of privacy not in the item that was the coffee cup, but in the informational content of the DNA found on the cup.
[366] How the police obtained the samples of bodily substances from the person concerned must nonetheless be considered.
[367] In certain circumstances, for example, in Stillman (collection of samples of hair, pubic hair, and dental imprints and seizure of a tissue discarded by an inmate while in detention) or Dyment[36] (blood samples taken from an unconscious person at the hospital), the intrusive manner in which the samples of bodily substances were taken is a search that contravenes s. 8 of the Charter.
[368] In this case, I concur with the trial judge when she stated that the police, using a non-intrusive scheme, simply gave the appellant the opportunity to leave saliva samples on a cup in a public place.
[369] Even if the manner in which the substances were obtained by the authorities is not intrusive, the informational expectations of privacy of individuals in their DNA must also be considered.
[370] In this regard, the fundamental question is not whether the appellant abandoned his DNA, but rather whether he had a reasonable expectation of privacy related to the forensic identification analysis of the DNA he left on the cup.
[371] Forensic DNA analysis has been used for identification purposes for over 30 years. As noted by the trial judge, the CODIS (”Combined DNA Index System”) software was introduced into Canada in the early 1990s. It was developed by the U.S. Federal Bureau of Investigation (the “FBI”) and is used in over 40 countries across the world.[37]
[372] This technique was discussed in many judgments, including R. v. S.A.B.[38] and R. v. Rodgers[39] of the Supreme Court.
[373] DNA identification is widely used, not only in criminal law, but in other situations, such as paternity disputes. For example, art. 535.1 of the Civil Code of Québec states that a court seized of an action concerning filiation may order “the analysis of a sample of a bodily substance so that the genetic profile of a person involved in the action may be established.”[40]
[374] While the technicitiesmay not necessarily be known, the public should widely be aware that individuals can be identified by comparing their DNA profile with DNA found on crime scenes.
[375] The technique itself is not intrusive from an informational perspective, as it is not intended to search a person’s DNA data to extract highly personal information. Its purpose is much narrower and seeks to identify specific sequences of a person’s DNA chain, so that a person’s profile can be distinguished from other profiles with a very high probability.
[376] CODIS uses the STR analysis (“Short Tandem Repeats”), which are short DNA sequences of about 2 to 5 repeating “letters”.[41] These repetitions are specific to each individual and determine whether two DNA samples come from the same person. This comparison means examining the STR located at 13 positions along the chromosomes (called loci).[42]
[377] After an STR analysis, an individual’s DNA profile resembles a bar code forming a specific pattern of lines of varying length. Each DNA profile is unique and can be distinguished from every other profile in the various DNA data banks, in the same way that a bar code distinguishes a product among all the items sold in a grocery store.[43]
[378] This analysis has a specific, limited purpose and does not reveal any medical, physical or mental characteristics of the person. As the Supreme Court wrote in S.A.B.:
The DNA warrant scheme limits the intrusion into informational privacy by using only non-coding DNA for forensic DNA analysis. As previously noted, s. 487.04 defines “forensic DNA analysis” as the comparison of the DNA in the bodily substance seized from a person in execution of a warrant with the results of the DNA in the bodily substance referred to in s. 487.05(1)(b). In other words, the DNA analysis is conducted solely for forensic purposes and does not reveal any medical, physical or mental characteristics; ...[44] [Emphasis in the original]
[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 his DNA for comparative purposes.
[380] Moreover, the DNA identification technique is not used to extract highly personal information, but to identify markers for comparison.
[381] As previously stated, the manner in which the bodily substances were obtained is important, and the police simply gave the appellant the opportunity to leave a cup containing his saliva in public. This method is not on its own abusive or unreasonable.
[382] In conclusion on this point, I find that the police did not breach the appellant’s fundamental right when they conducted a limited and reasonable non-intrusive operation to obtain a sample, in a public place, for the sole purpose of comparing one DNA sample with another.
[383] In addition to the cup’s seizure, the appellant alleges that the police randomly searched every file in a local DNA bank to find a match with his DNA, which was not classified in a legally authorized bank (“Discarded Sample Index”), because it was considered to have been abandoned. He argues that this was a fishing expedition which violated his rights.
[384] This argument must be dismissed in light of my conclusion that the appellant could not, in the specific circumstances of this case, claim an expectation of privacy in the DNA found on the cup.
[385] I therefore conclude, like Thibault, J.A., that there was no breach of s. 8 in this case.
Section 24(2) of the Charter
[386] With respect to the exclusion criteria in s. 24(2) of the Charter, the conduct of the State agents must be considered.[45]
[387] In this case, the authorities were dealing with a particular type of criminality involving marginalized and vulnerable victims: streetworkers.
[388] The following comments made by the Honourable Wally T. Oppal, Commissioner, in his 2012 report[46] as chair of the British Columbia Missing Women Commission of Inquiry, in connection with the disappearance of many women in the wake of the Pickton case, are apposite:
But this Commission is dealing with a specific category of missing persons. Here the common factor is that victims are socially and economically marginalized women, which makes them highly vulnerable to all kinds of violence, including serial predation. In a decision released as I was finalizing this report, the Supreme Court of Canada recognized, in no uncertain terms, that women engaged in the survival sex trade are “some of the most marginalized members of society.”[47]
[389] The sexual abuse or dehumanizing allegations made by these women were not always taken seriously by law enforcement.[48]
[390] In his report, Commissioner Oppal blames law enforcement for not having implemented every legal strategy available to inquire into complaints made by vulnerable and marginalized streetworkers who were subject to violence, in particular the use of forensic techniques.[49]
[391] In this case, the police precisely used a limited and acceptable investigative technique by simply giving the appellant the opportunity to leave traces of his DNA, which were then used for the sole purpose of DNA identification.
[392] For these reasons, I would dismiss the appeal.
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SIMON RUEL, J.A. |
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REASONS OF THIBAULT, J.A. |
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[270] The appellant appeals from a judgment rendered by the Court of Quebec,[50] which convicted him on the first five counts below and stayed proceedings on the sixth count:
7. On or about June 1, 2004, in Montréal, district of Montréal, did commit a sexual assault on C.-M. F., committing thereby the indictable offence provided by section 271 (1) a) of the Criminal Code.
8. On or about September 23, 2005, in Montréal, district of Montréal, in committing a sexual assault on C. G., did cause bodily harm to him, committing thereby the indictable offence provided by section 272 (1) c) (2) b) of the Criminal Code.
9. On or about March 23, 2003, in Montréal, district of Montréal, did commit a sexual assault on L. N., committing thereby the indictable offence provided by section 271 (1) a) of the Criminal Code.
10. On or about November 13, 2002, in Montréal, district of Montréal, did commit a sexual assault on J. H., committing thereby the indictable offence provided by section 271 (1) a) of the Criminal Code.
11. On or about November 13, 2002, in Montréal, district of Montréal, did commit an assault on J. H., committing thereby the indictable offence provided by section 266a) of the Criminal Code.
12. On or about November 13, 2002, in Montréal, district of Montréal, did knowingly utter a threat to cause death or bodily harm to J. H., committing thereby the indictable offence provided by section 264.1 (1) a) (2) a) of the Criminal Code.
[271] To avoid criminal liability, the appellant raises seven grounds of appeal and alleges that the trial judge erred: (1) in failing to order the full disclosure of the Nicole Blanchette murder investigation file, in which the appellant was a suspect; (2) in dismissing the appellant’s motion to sever the counts; (3) in admitting into evidence the out-of-court statements by C. G.; (4) in admitting into evidence the record of 911 emergency calls; (5) in using similar fact evidence; (6) in admitting into evidence the expert reports establishing his DNA profile; and (7) in rendering unreasonable verdicts.
[272] I concur with the reasons and conclusions of my colleague Vauclair on every ground of appeal raised by the appellant, except for the ground based on the evidence establishing his DNA profile, in which case I will provide my own reasons.
[273] With respect to the evidence establishing his DNA profile, the appellant asks the Court to exclude the analysis conducted on samples of bodily substances he left on a cup in a restaurant. The cup was collected by the police during a clever operation carried out by undercover officers arranged to obtain samples of his bodily substances, first to establish his DNA profile, and then to compare his DNA to that found on two prostitutes, Nicole Blanchette, who was sexually assaulted and murdered, and L. N., who was sexually assaulted.
[274] The appellant argues that the technique used by the police to obtain these samples violated his ss. 7 and 8 Charter rights:
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7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
8. Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives. |
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure. |
*****
[275] The charges in this case were laid following a 2007 police investigation on a completely separate case into the murder of Nicole Blanchette, a prostitute. She was found in a Montreal park lifeless, face down on the ground. Her pants had been pulled down to her knees. The autopsy revealed that she had been sexually assaulted and then strangled. Samples of bodily substances were taken for the purpose of a DNA analysis.
[276] On November 1, 2007, during the Blanchette investigation, the police from the Major Crimes Unit received information from a police officer in the Sexual Assault Unit. The modus operandi in Ms. Blanchette’s murder case was strikingly similar to that in other unsolved sexual assault cases in which the appellant was also a suspect.
[277] On April 9, 2008, a comparison revealed no match between the DNA profile from the samples taken in L. N.’s sexual assault case with the profile established by the analysis of substances taken during Nicole Blanchette’s murder investigation. This seemed to indicate that the assailant and the murderer were not the same person. The result did not prevent the police from continuing their investigation.
[278] The police followed the appellant for two days, on April 9 and 11, 2008, but were unable to collect any item they could use to conduct a forensic DNA analysis. The police then planned an undercover police operation. An undercover police officer set up a business meeting with the appellant. During the first meeting, the officer met the appellant at his home (where he also works) on the pretext that she was interested in his business. She proposed a second meeting. The appellant agreed and suggested that they meet in a café of his choosing.
[279] On April 16, 2008, the officer arrived at the café in question before the appellant. When he arrived, she told him that she was going to buy herself a coffee. The appellant told her that he wanted one as well. They went to the counter, ordered their coffees and the appellant paid for both. The cashier served them their coffee at their table. She gave the appellant a blue cup and the officer a black cup. Around 5:20 p.m., the officer remarked that the appellant had almost finished his coffee and asked him if he wanted another one. He answered no and added that he had finished his coffee. The officer said that she would clear off the table to make room.
[280] She got up and carried the cups over to the counter. Another undercover agent collected the cup the appellant had used.
[281] On April 17, 2008, that cup was sent to the Laboratoire de sciences judiciaires et de médecine légale. The police asked that the DNA profile obtained from the bodily substances found on the cup be compared to those in the investigations into Nicole Blanchette’s murder and L. N.’s sexual assault.
[282] The forensic DNA analysis ruled out the appellant as a suspect in Nicole Blanchette’s murder but revealed a possible match with the DNA collected in L. N.’s sexual assault file. His DNA was also compared to other DNA collected from crime scenes and entered in the Local DNA Data Bank. A match was also found with the DNA collected in C. G.’s sexual assault file.
[283] Based on this information, on October 8, 2008, the police obtained a warrant to take samples of bodily substances from the appellant under s. 487.05 Cr. C. An analysis of these substances established that the appellant had sexually assaulted L. N. and C. G..
[284] These women are two of the four sexual assault victims involved in this appeal, as shall be seen below. The police investigation conducted at the time of the crimes apparently failed to uncover the identity of their assailant. The appellant, however, was the prime suspect.
[285] On July 16, 2008, the appellant was arrested and charged.
*****
[286] Let us return to the evidence in the cases involved in the appeal. This is necessary because context is the element that decides whether or not s. 8 of the Charter was violated.
[287] The appellant used a similar method in every one of these four situations. He approached his victims, Ms. H., Ms. N., Ms. F. and Ms. G., in the street. They are prostitutes. They agreed to perform fellatio on him for a price. They entered his vehicle, a black SUV. The appellant brutally raped or sodomized his victims. The assaults occurred inside the vehicle while it was parked in an isolated spot in the city of Montreal.
[288] A summary of the evidence established for each victim follows.
*****
[289] On November 13, 2002, J. H. got into the vehicle the appellant was driving, a black SUV. She agreed to perform fellatio on him for a price. He parked the vehicle in a dark area near Fullum Street. As soon as Ms. H. began the fellatio, the appellant thrust her head very deeply onto his penis, to the point that she had difficulty breathing. She finally raised her head. She told the appellant that he was hurting her and that she wanted everything to stop. He grabbed her arm threateningly; she punched him and he immediately responded by punching her several times in the face. The appellant then got on top of Ms. H.; he placed his fist on her throat so that she could not move and penetrated her vagina. Ms. H. could not breathe, started to panic and began to hit the appellant. He suddenly returned to his seat. He stretched out his arm to open the vehicle door and threw Ms. H. out, half dressed, while the car was moving.
[290] Two women came to Ms. H.’s aid. One of them called 911 for help. She described the car the victim had been thrown from, a black SUV, and gave the licence plate number ([...]). A police officer was dispatched to the scene and he recorded Ms. H.’s injuries. Another officer who was patrolling in the area heard over the radio that a woman had just been assaulted. In the minutes following the radio message, he intercepted the vehicle the appellant was driving, very close to the scene of the assault, some six kilometers away. It was a black SUV with plate number [...]. He described the appellant as a white man, Italian, 180 cm tall, weighing 91 kg and with brown eyes and hair. He observed that this information matched what was on his driver’s licence and that the appellant was at the wheel of the vehicle.
[291] The police investigation was suspended apparently because Ms. H. refused to cooperate. It resumed in November 2007, during the investigation into Nicole Blanchette’s murder.
[292] The judge convicted the appellant on counts 4, 5, and 6 based on: (a) Ms. H.’s testimony; (b) the testimony of the witness who called 911 and gave the vehicle’s licence plate number; (c) the police report confirming the 911 call and Ms. H.’s identity; and (d) the testimony of the police officer who intercepted the appellant in the minutes following the sexual assault.
*****
[293] On March 22, 2003, L. N. got into a black truck. She agreed to perform fellatio on the appellant for $20. He parked the truck in an isolated spot nearby. Ms. N. started to perform the fellatio. The appellant immediately grabbed his victim’s head between his hands and thrust it very hard onto his penis. She knew that something was wrong. The appellant pulled down Ms. N.’s pants and tried to insert his finger into her anus while she was performing the fellatio. The appellant then turned Ms. N. over and brutally sodomized her. Ms. N. was very scared and did not fight or cry out.
[294] She eventually got out of the vehicle. She took down the licence plate number ([...]). She called the police, reported the sexual assault and described her assailant: the man had an Italian accent, was clean-shaven, had brown eyes and weighed at least 190 pounds. She decided to file a complaint two days later. The police drove her to the hospital so that samples could be collected. She gave the police the clothes she was wearing when she was assaulted.
[295] Samples were collected at the hospital. The results of the forensic DNA analysis were entered into the National DNA Data Bank.
[296] In 2010, additional forensic DNA analyses were conducted. They established that the sperm found on the pants worn by Ms. N. on March 22, 2003, belonged to the appellant.
[297] The judge convicted the appellant on count 3 based on: (a) the uncontradicted testimony of Ms. N.; (b) the licence plate number recorded, which at the time was that of the vehicle owned by the appellant’s father; (c) Ms. N.’s description of the appellant given to police when she met with them after the March 2003 assault; (d) the appellant’s identification during a police line-up; (e) the identification of the appellant in Court; and (f) the scientific evidence of the appellant’s DNA profile.
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[298] On June 1, 2004, Cl. F. was working as a prostitute. She got into a black SUV being driven by the appellant, whom she knew because he had twice been her client. She agreed to perform fellatio on him for $20. The appellant drove the vehicle to a dark parking lot that had only one way in and out. At a given time, he brutally sodomized her against her will. After the assault, she got out of the vehicle without having put her pants back on. She took down the vehcile’s licence plate number ([...]).
[299] The next day, Ms. F. went to a community organization that helps prostitutes. She filed an “informal” complaint to warn other prostitutes that the appellant was dangerous. She completed a document in which she wrote down the licence plate number she had noted.
[300] One month later, she saw the appellant’s photo in the Mirror, a newspaper. She kept the clipping and gave it to the police officer who she met four years later, on September 3, 2008. She filed a complaint with the police after the appellant was arrested.
[301] The judge convicted the appellant on count 1 based on: (a) the testimony of Ms. F., who described her assailant and provided the licence plate number of the vehicle he was driving; and (b) the similar fact evidence introduced to increase the credibility of Ms. F.’ testimony.
[302] The fourth victim, C. G., did not testify at trial because she passed away on September 24, 2008. She made a written statement on September 29, 2005, and a sworn video statement on July 1, 2008, after a match was found between the DNA obtained from the bodily substances from the cup the appellant had used and the DNA found in Ms. G.’s rectum and the clothes she was wearing during the assault. She described her assailant as a white man in his early thirties, who was 6 feet tall and spoke French, but not a [translation] “true Quebecer”.
[303] On September 23, 2005, Ms. G. was walking along the street. It was raining and she was soaking wet. The appellant stopped his vehicle and offered to drive her home. She got into the black SUV. They drove to an alley, where the appellant grabbed her by the hair and dragged her to the back of the vehicle. He locked the doors. He forced her to perform fellatio while he held her by the hair. He then turned her around and brutally sodomized her. Ms. G. screamed with pain. The appellant then penetrated her vagina. Finally, he threw her naked into the street, followed by her clothes.
[304] Ms. G. was helped by a man who was getting out of a taxi. She asked him to call 911 and told him that she had just been raped and sodomized. The police arrived at the scene. Ms. G. described her assailant and his vehicle. The officer drove Ms. G. to the hospital, where a physician observed serious perianal bruising. Bodily substances were collected.
[305] Two expert reports were prepared. The first, dated September 26, 2006, established a male DNA profile using sperm taken from Ms. G.’s rectum. At that time, the assailant’s identity could not be confirmed due to lack of data. The second report, dated July 13, 2009, established a match between the DNA from the substances taken from Ms. G. in 2005 and those obtained from the appellant following the warrant issued in 2008. More specifically, it established that the probability of finding the same profile in another individual is so low (1 in 300 million) that the only possible conclusion is that it was the same person.
[306] The judge convicted the appellant on count 2 based on: (a) Ms. G.’s statements; (b) the testimony of the person who helped her; (c) the testimony of the police officer who drove her to the hospital; (d) the hospital staff; and (e) the evidence of the appellant’s DNA profile.
*****
[307] From the evidence, I note that during a police investigation into the murder of a prostitute, a crime whose modus operandi was similar to that in unsolved sexual assault cases in which the appellant was a suspect, the police used an investigation method involving two undercover agents to obtain bodily substances. The forensic DNA analysis of those substances led to the conclusion that the appellant sexually assaulted C. G. and L. N.. The analysis also resulted in a DNA warrant under s. 487.05 Cr.C. An analysis of the substances obtained pursuant to the warrant confirmed that the appellant sexually assaulted L. N. and C. G..
[308] Were the appellant’s fundamental rights violated when the police collected the cup he used in the restaurant to analyze his bodily substances?
[309] In her judgment rendered on January 21, 2013,[51] the trial judge applied the Supreme Court guidance in R. v. Patrick[52] and found that s. 8 of the Charter had not been violated. In the judge’s opinion, the appellant voluntarily abandoned his cup and the police investigation that established his DNA profile is not objectionable, given the circumstances.
[310] Abandonment is an issue of fact. All the circumstances must be examined to determine whether the person acted in relation to the subject matter in such a manner as to lead a reasonable observer to conclude that the person had waived their privacy interest. Was that item discarded permanently or not? Was it discarded in a public, semi-public, or private place? Was it discarded in a place accessible to the general public or to a more-or-less restricted group of people? Are there other valid reasons leading to the conclusion that the privacy interest was or was not waived? etc.
[311] A court, “in assessing the reasonableness of a claimed privacy interest, is to look at the ‘totality of the circumstances’, and this is so whether the claim involves aspects of personal privacy, territorial privacy or informational privacy.”[53] The analytical framework developed by the Supreme Court in R. v. Tessling[54] was reiterated in Patrick, supra. It must first be determined whether the appellant has a reasonable expectation of privacy and, if so, whether that expectation was violated by the police conduct. The following factors, which include abandonment, are relevant, with such modifications as the circumstances require:[55]
(1) Did the Appellant Have a Reasonable Expectation of Privacy?
[27] On the facts of the case, we need to address:
1. What was the nature or subject matter of the evidence gathered by the police?
2. Did the appellant have a direct interest in the contents?
3. Did the appellant have a subjective expectation of privacy in the informational content of the garbage?
4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:
a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is the impact of such a finding on the privacy analysis?
b. whether the informational content of the subject matter was in public view;
c. whether the informational content of the subject matter had been abandoned;
d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
e. whether the police technique was intrusive in relation to the privacy interest;
f. whether the use of this evidence gathering technique was itself objectively unreasonable;
g. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.
(2) If There Was a Reasonable Expectation of Privacy in This Case, Was It Violated by the Police Conduct?
[Emphasis added; underlining and italics in the original]
[312] Two possible approaches can be used to determine whether or not there is a reasonable expectation of privacy.
[313] The first approach stresses and focuses solely on the nature of the subject matter collected - bodily substances - a subject matter that is highly personal with respect to which a person undoubtedly has a direct interest and enjoys a subjective expectation of privacy. Barring cases of consent to forensic DNA analysis, or where such analysis is authorized by statute or by the court, individuals are legally entitled to expect that this exclusive, intimate and confidential information will not be stolen from them. According to this approach, even where the subject matter, in this instance the cup, was seized in a public place and the police technique used was not itself intrusive, there is nothing to suggest that this person explictly or implicitly abandoned his bodily substances so that the highly personal informational content drawn from the forensic DNA analysis of his bodily substances could be identified. This person simply discarded the subject matter, in this case the cup, which he used to drink his coffee in the restaurant that owned it, and not his DNA.
[314] In my view, this approach must be rejected, given the case law, in particular Patrick, supra. This approach would never allow the police to collect an item discarded by a person to analyze its bodily substances and obtain a DNA profile because it is the item that is abandoned, not the DNA of the person who used it. Such a conclusion runs counter to the guidance of the Supreme Court in Patrick, supra. Binnie J. wrote that, when a subject matter item is abandoned, it is abandoned with all the confidential information embedded therein.[56] It would be simplistic to read my words to mean that the restriction on police investigative powers is the only factor supporting the conclusion that s. 8 of the Charter was not infringed.
[315] In Patrick, Abella J., concerned about the state’s possible random intrusion into the lives of its citizens, rejected the idea that personal information automatically loses its private nature just because it is garbage left by the road for collection. She agreed, however, that the police can search garbage when they have sufficient evidence to support reasonable grounds that a crime has been committed by the individual searched. I share the concerns and opinion of Abella J. Everything comes down to context.
[316] I note that in this case, the police had sufficient information to justify the existence of reasonable grounds to collect the cup. Their investigation had revealed that the victims had provided a consistent description of the appellant and a consistent description of the vehicle, that three of the victims had provided the same vehicle licence plate number, and that the appellant had been arrested near the scene of one of the assaults, in the minutes following that assault, while he was at the wheel of the vehicle in which the offences were committed.
[317] The second approach used to determine whether an accused has a reasonable expectation of privacy was set out by the Court in Usereau c. R.,[57] which relied on R. v. Love[58] of the Court of Appeal of Alberta and R. v. Stillman[59] and R. v. Patrick[60] of the Supreme Court. This is the current state of the law on this issue. It supports the theory that the police may, during a police investigation into a person suspected of having committed a crime, freely collect items abandoned by the suspect in a public place to establish a DNA profile when the person is not in custody,[61] considering that abandonment is an issue of fact and that the reasonable expectation of privacy must be assessed using the criteria set out in Patrick, supra. This is what the Court wrote in Usereau, supra:
[42] The gathering of the glass and straw in the restaurant at which Mr. Usereau had been followed falls squarely within the parameters of this distinction, which was well described by Alan D. Gold in The Practitioner's Criminal Code 2010:
A person gives up any privacy interest in voluntarily abandoned property, but an owner retains a privacy interest in stolen property when it is subsequently recovered by the police.
Individuals have a reasonable expectation of privacy that confidential medical information will not be revealed. Where the accused not in custody, discards something that offers potentially valuable DNA evidence the police may ordinarily collect and test the item without any concern about the accused's consent because he has abandoned the item. When the accused is in custody on the other hand, the same standards would be unfair to apply. Whether there has been an abandonment and elimination of any privacy interest in what has been discarded is to be determined on the facts of the particular case. The privacy expectation of those in custody would be effectively eliminated because of their inability to control their discards if any seizure of bodily samples without consent were permitted.
[Emphasis added - References omitted]
[43] This interpretation has been generally followed and applied by Canadian courts, even prior to the Supreme Court's judgment in Stillman. For example, in R. v. Love the Alberta Court of Appeal determined that an accused's privacy rights under section 8 of the Canadian Charter were not engaged with respect to a tissue he had discarded in a motel room from which he had checked out since the tissue had been abandoned. The DNA evidence obtained from the tissue that matched DNA evidence from blood at the scene of the crime was thus held to be admissible.
[44] More recently, the issue of abandonment was considered by the Supreme Court of Canada in R. v. Patrick, a case in which an accused claimed an infringement of section 8 of the Canadian Charter. The police discovered drug paraphernalia in his garbage that led to a search warrant being obtained for his dwelling. The accused was convicted of possession, production and trafficking of a controlled substance (ecstasy) based on evidence obtained from his garbage and the subsequent search of his dwelling. A majority of the Alberta Court of Appeal dismissed the appeal, as did the Supreme Court.
[45] Writing on behalf of seven of his colleagues, Binnie, J. said this on the issue of abandonment:
[22] In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is "best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it" (p. 435).
[23] In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that "[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded" (para. 223). (To the same effect see Cory J. for the majority at para. 62, and Major J., concurring in part, at para. 274.)
[24] This may be contrasted with the situation in R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 , where a locked safe containing confidential documents had been stolen (not discarded) and the accused had never acted in a manner inconsistent with the continued assertion of a privacy interest in the information contained therein. When the police, after recovering the stolen safe, decided to scrutinize the documents inside (and the accused subsequently was charged with tax offences), they infringed the s. 8 reasonableness line.
[25] Abandonment is therefore an issue of fact. The question is whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances.
[46] Applying that test, as a question of fact there can be little doubt that a reasonable and independent observer would conclude that Mr. Usereau's continued assertion of a privacy interest in a glass and a straw after he had left a restaurant is unreasonable in the totality of the circumstances.
[Emphasis added; references omitted.]
[318] As stated above, Usereau relies on R. v. Stillman,[62] in which the Supreme Court stated:
62 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 discards items containing bodily fluids. Obviously 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.
[Emphasis added]
[319] The Supreme Court cites this paragraph from Stillman with approval in R. v. Tessling:[63]
40 It is true that a person can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a section of the public, or abandons in a public place (R. v. Boersma, [1994] 2 S.C.R. 488; Stillman, supra, at para. 62, per Cory J., and at para. 226, per McLachlin J. (as she then was), dissenting; Evans, supra, at para. 50, per Major J., concurring; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 453; Dyment, supra, at p. 435; and R. v. Monney, [1999] 1 S.C.R. 652, at para. 45).
[Emphasis added]
*****
[320] It must now be determined whether the trial judge, given the applicable legal framework and all the circumstances, erred in deciding that the appellant’s privacy interest was not violated when the DNA evidence was obtained.
[321] In my humble opinion, her approach and conclusion are free of error. She reviewed and applied the factors listed in Patrick, supra: (a) the police technique used was objectively reasonable; (b) it was planned as part of a murder investigation in which the appellant was a suspect; (c) the meeting was held in a public place; (d) the appellant voluntarily drank coffee; (e) he did not object when the undercover officer cleared the table; (f) he continued working on his computer, without worrying about what would happen to his cup. The judge correctly concluded that the appellant abandoned the cup and that his privacy interest had not been violated.
[322] Had it been otherwise, for the reasons stated by my colleague Vauclair,J.A., I would have concluded, as he did, that the evidence should not be excluded under s. 24(2) of the Charter based on the three criteria set out in R. v. Grant.[64]
[323] Before concluding on the matter of a police violation of the appellant’s protected s. 8 Charter right, I would like to distance myself from certain statements made by Ruel J.A. in his reasons. I find that some of the stated facts were not subject to judicial notice or established by an expert. Even if these facts were subject to judicial notice, they appear to fall outside the context of this case and, as such, support a rather disembodied theory. Given that situation, the parties’ counsel were not consulted on the matter and could not present their point of view. Without this indispensible contribution, I prefer to abstain from commenting.
*****
[324] Another interesting aspect must be considered in this case. Even if the police had violated the appellant’s rights in collecting the cup, in the circumstances of this case, it can only be concluded that the impact of that violation would have been completely non-existent.
[325] A review of all the evidence available to the respondent - the victims’ consistent description of the appellant, the victims’ consistent description of his vehicle, the licence plate number three of the victims noted, the appellant’s arrest close to the scene of one of the assaults in the minutes following the assault - would have allowed a judge to conclude that there were reasonable grounds to believe that a designated offence to which the appellant was a party had been committed. This means that, even if the seized cup had provided no information, there was sufficient evidence in the file to issue a warrant under s. 487.05 Cr. C.[65]
*****
[326] For these reasons, I would dismiss the appeal.
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FRANCE THIBAULT, J.A. |
* La traduction anglaise des motifs est jointe à l’annexe 1.
[1] R. c. D'Amico, 2014 QCCQ 21006.
[2] R. c. D'Amico, 2013 QCCQ 20909.
[3] La juge se réfère aux arrêts suivants : R. c. Patrick, 2009 CSC 17; R. c. Stillman, [1997] 1 R.C.S. 607; R. c. Dyment, [1988] 2 R.C.S. 417; R. v. Delaa, 2009 ABCA 179, demande d’autorisation d’appel à la Cour suprême rejetée, 29 octobre 2009, n° 33260.
[4] R. c. Patrick, supra, note 3, paragr. 26.
[5] R. c. Tessling, 2004 CSC 67, paragr. 32.
[6] R. c. Patrick, supra, note 3, paragr. 27.
[7] R. c. Patrick, supra, note 3, paragr. 2. L’empreinte génétique, qui peut révéler de nombreuses informations sur la personne visée, sert à la police aux fins d’identification seulement, un peu à la manière des empreintes digitales.
[8] Usereau c. R., 2010 QCCA 894.
[9] R. v. Love (1995), 102 C.C.C. (3d) 393 (C.A. Alta.), demande d’autorisation d’appel à la Cour suprême rejetée, 27 décembre 1995, no 25062.
[10] R. c. Stillman, supra, note 3.
[11] R. c. Patrick, supra, note 3.
[12] Usereau c. R., supra, note 8, paragr. 42-46.
[13] R. c. Stillman, supra, note 3.
[14] R. c. Tessling, supra, note 5, paragr. 40.
[15] R. c. Grant, 2009 CSC 32.
[16] Et ce, même si, dans un obiter dictum, la juge de première instance déclare que, sans les informations révélées par la tasse, un mandat n’aurait pas pu être délivré.
[17] R. c. D'Amico, 2013 QCCQ 20909 at para. 28.
[18] R. c. D'Amico, 2013 QCCQ 20909 at para. 45.
[19] R. c. D'Amico, 2013 QCCQ 20909 at para. 45.
[20] R. v. Stillman, [1997] 1 S.C.R. 607.
[21] Usereau c. R., 2010 QCCA 894.
[22] R. v. Patrick, 2009 SCC 17.
[23] Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20 at para. 27.
[24] R. v. Patrick, 2009 SCC 17 at para. 26.
[25] R. v. Patrick, 2009 SCC 17 at para. 27; R. v. Tessling, 2004 SCC 67 at para. 32.
[26] R. v. Patrick, 2009 SCC 17 at para. 26; R. v. Tessling, 2004 SCC 67 at paras. 19 and 31; R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45.
[27] Cecilia Hageman, Derrill Prevett & Wayne Murray, DNA Handbook, 2d ed. (Markham, Ont.: LexisNexis, 2008) at 5 and 11; G.M. Chayko & E.D. Gulliver, Forensic Evidence in Canada, 2d ed. (Aurora, Ont.: Canada Law Book, 1999) at 301; Johanne Marceau, “La mise en œuvre de la banque d’empreintes génétiques” in Congrès du Barreau du Québec (2001) 215 at 217.
[28] Johanne Marceau, “La mise en œuvre de la banque d’empreintes génétiques”, in Congrès du Barreau du Québec (2001) 215 at 217.
[29] Genetic Non-Discrimination Act, S.C. 2017, c. 3, s. 2.
[30] See Pierre Patenaude, L’expertise en preuve pénale: Les sciences et techniques modernes d’enquête, de surveillance et d’identification (Cowansville, Que.: Yvon Blais, 2003) at 61; based on these concerns, the federal government enacted the Genetic Non-Discrimination Act which amended the Canada Labour Code to protect employees from being compelled to undergo genetic testing or provide results; this Act also amended the Canadian Human Rights Act by including genetic characteristics as a prohibited ground of discrimination.
[31] Pierre Patenaude, L’expertise en preuve pénale: Les sciences et techniques modernes d’enquête, de surveillance et d’identification (Cowansville, Que.: Yvon Blais, 2003) at 61.
[32] R. v. Stillman, [1997] 1 S.C.R. 607 at para. 62.
[33] Usereau c. R., 2010 QCCA 894 at para. 42.
[34] R. v. Delaa, 2009 ABCA 179 at para. 19.
[35] R. v. Cole, 2012 SCC 53 at para. 41 [Emphasis in the original].
[36] R. v. Dyment, [1988] 2 S.C.R. 417.
[37] R. c. D'Amico, 2013 QCCQ 20909 at paras. 48-51.
[38] R. v. S.A.B., 2003 SCC 60.
[39] R. v. Rodgers, 2006 SCC 15.
[40] Civil Code of Québec, art. 535.1, para. 1.
[41] Cecilia Hageman, Derrill Prevett & Wayne Murray, DNA Handbook, 2d ed. (Markham, Ont.: LexisNexis Canada, 2008), at 33-34; G.M. Chayko & E.D. Gulliver, Forensic Evidence in Canada, 2d ed. (Aurora, Ont.: Canada Law Book, 1999) at 325.
[42] Cecilia Hageman, Derrill Prevett & Wayne Murray, DNA Handbook, 2d ed. (Markham, Ont.: LexisNexis Canada, 2008) at 187.
[43] Cecilia Hageman, Derrill Prevett & Wayne Murray, DNA Handbook, 2d ed., (Markham, Ont.: LexisNexis Canada. 2008) at 1.
[44] R. v. S.A.B., 2003 SCC 60 at para. 49.
[45] R. v. Grant, 2009 SCC 32 at para. 72 et seq.
[46] British Columbia, Missing Women Commission of Inquiry, Forsaken: The Report of the Missing Women Commission of Inquiry (Victoria, 2012).
[47] British Columbia, Missing Women Commission of Inquiry, Forsaken: The Report of the Missing Women Commission of Inquiry (Victoria , 2012), vol I at 5.
[48] British Columbia, Missing Women Commission of Inquiry, Forsaken: The Report of the Missing Women Commission of Inquiry (Victoria, 2012).
[49] British Columbia, Missing Women Commission of Inquiry, Forsaken: The Report of the Missing Women Commission of Inquiry (Victoria Missing Women Commission of Inquiry, 2012), vol IIB.
[50] R. c. D'Amico, 2014 QCCQ 21006.
[51] R. c. D'Amico, 2013 QCCQ 20909.
[52] The judge referred to the following judgments: R. v. Patrick, 2009 SCC 17; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Delaa, 2009 ABCA 179, leave to appeal to SCC refused, 33260 (October 29, 2009).
[53] R. v. Patrick, supra note 3 at para. 26.
[54] R. v. Tessling, 2004 SCC 67 at para. 32.
[55] R. v. Patrick, supra note 3 at para. 27.
[56] R. v. Patrick, supra note 3 at para. 2. Police use DNA profiles, which may reveal information about the person concerned, solely for identification purposes, similar to fingerprints.
[57] Usereau c. R., 2010 QCCA 894.
[58] R. v. Love (1995), 102 C.C.C. (3d) 393 (Alta. C.A.), leave to appeal to SCC refused, 25062 (December 27, 1995).
[59] R. v. Stillman, supra note 3.
[60] R. v. Patrick, supra note 3.
[61] Usereau c. R., supra note 8 at paras. 42-46.
[62] R. v. Stillman, supra note 3.
[63] R. v. Tessling, supra note 5 at para. 40.
[64] R. v. Grant, 2009 SCC 32.
[65] Even though the trial judge stated in obiter dictum that a warrant could not have been issued without the information obtained from the cup.
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.