One of the most interesting cases the Supreme Court of Canada recently granted leave in was R. v. S.A.B., 2001 ABCA 235. The issue in this case is the validity of the provisions in the Criminal Code that empower a judge to issue a warrant authorizing a peace officer to obtain, or cause to be obtained under the direction of a peace officer, a bodily substance from a person who was a party to a designated offence for purposes of DNA analysis.
The accused in S.A.B. had been charged with the sexual assault of the 14-year-old complainant. A judge issued a warrant under s. 487.05 of the Code. The accused claimed that the Code provision in question infringed ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. A majority of the Alberta Court of Appeal held that the legislation did not contravene either s. 7 or s. 8 of the Charter.
Some of the key features of s. 487.05 of the Criminal Code are:
• a provincial court judge may issue a warrant of the kind described above;
• on an ex parte application;
• if the judge has reasonable grounds to believe that a designated offence has been committed, a bodily substance has been found at the place where the offence was committed, on or within the body of the victim, on anything worn by the victim, etc.;
• that the person against whom the warrant is to be issued is alleged to be a party to the offence;
• the DNA analysis of the bodily substance will provide evidence whether the bodily substance on the victim, etc., was from the target of the warrant; and
• the judge must also be satisfied that the issuance of the warrant is in the best interests of the administration of justice.
The majority and the minority disagreed on whether the “reasonable grounds to believe” standard was sufficient to avoid an infringement of s. 7 or s. 8 of the Charter. The majority, per Madam Justice Russell, held that this standard precluded the search from being unreasonable under s. 8 of the Charter. She also held that a power to search that did not violate s. 8 could not, by definition, constitute an infringement of the s. 7 guarantee of the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In coming to this conclusion, Madam Justice Russell took considerable comfort from the obiter of Mr. Justice Cory in R. v. Stillman, [1997] 1 S.C.R. 607. In that case, Mr. Justice Cory seemed to suggest that the DNA provisions in question in S.A.B. passed Charter scrutiny: “they might well meet all constitutional requirements.”
Mr. Justice Berger dissented. He concluded that, in the case of an invasive search of the kind permitted by the DNA provisions of the Criminal Code, the “reasonable grounds to believe” standard was not adequate. Mr. Justice Berger was influenced by a number of S.C.C. decisions in which the court had suggested, albeit in obiter, that a “reasonable probability” standard might not be adequate if a search involved the bodily integrity of a person. See Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dyment, [1988] 2 S.C.R. 417. He held that the DNA provisions could only pass Charter scrutiny if they require the provincial court judge to be convinced on a balance of probabilities by clear, cogent and compelling evidence of the matters referred to in s. 487.05. “[‘C]lear’ evidence is evidence that is not ambiguous, doubtful or equivocal; it is evidence that, taken as a whole, is free from confusion and uncertainty” (para. 121).
The DNA provisions have been upheld as constitutionally valid by the Ontario and B.C. Courts of Appeal. Given the dissent in S.A.B. and the various obiter dicta of the S.C.C. on this issue, it is not surprising that the court granted leave to appeal in this case. The standard for a warrant to obtain DNA evidence that is ultimately adopted by the S.C.C. will likely have a significant impact on search and seizure in relation to all forensic techniques that involve an invasion of the bodily integrity of individuals.
The comments on S.A.B. were prepared by Eric Gertner. Mr. Gertner is a partner and director of research at McCarthy Tétrault LLP in Toronto.
The accused in S.A.B. had been charged with the sexual assault of the 14-year-old complainant. A judge issued a warrant under s. 487.05 of the Code. The accused claimed that the Code provision in question infringed ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. A majority of the Alberta Court of Appeal held that the legislation did not contravene either s. 7 or s. 8 of the Charter.
Some of the key features of s. 487.05 of the Criminal Code are:
• a provincial court judge may issue a warrant of the kind described above;
• on an ex parte application;
• if the judge has reasonable grounds to believe that a designated offence has been committed, a bodily substance has been found at the place where the offence was committed, on or within the body of the victim, on anything worn by the victim, etc.;
• that the person against whom the warrant is to be issued is alleged to be a party to the offence;
• the DNA analysis of the bodily substance will provide evidence whether the bodily substance on the victim, etc., was from the target of the warrant; and
• the judge must also be satisfied that the issuance of the warrant is in the best interests of the administration of justice.
The majority and the minority disagreed on whether the “reasonable grounds to believe” standard was sufficient to avoid an infringement of s. 7 or s. 8 of the Charter. The majority, per Madam Justice Russell, held that this standard precluded the search from being unreasonable under s. 8 of the Charter. She also held that a power to search that did not violate s. 8 could not, by definition, constitute an infringement of the s. 7 guarantee of the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In coming to this conclusion, Madam Justice Russell took considerable comfort from the obiter of Mr. Justice Cory in R. v. Stillman, [1997] 1 S.C.R. 607. In that case, Mr. Justice Cory seemed to suggest that the DNA provisions in question in S.A.B. passed Charter scrutiny: “they might well meet all constitutional requirements.”
Mr. Justice Berger dissented. He concluded that, in the case of an invasive search of the kind permitted by the DNA provisions of the Criminal Code, the “reasonable grounds to believe” standard was not adequate. Mr. Justice Berger was influenced by a number of S.C.C. decisions in which the court had suggested, albeit in obiter, that a “reasonable probability” standard might not be adequate if a search involved the bodily integrity of a person. See Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dyment, [1988] 2 S.C.R. 417. He held that the DNA provisions could only pass Charter scrutiny if they require the provincial court judge to be convinced on a balance of probabilities by clear, cogent and compelling evidence of the matters referred to in s. 487.05. “[‘C]lear’ evidence is evidence that is not ambiguous, doubtful or equivocal; it is evidence that, taken as a whole, is free from confusion and uncertainty” (para. 121).
The DNA provisions have been upheld as constitutionally valid by the Ontario and B.C. Courts of Appeal. Given the dissent in S.A.B. and the various obiter dicta of the S.C.C. on this issue, it is not surprising that the court granted leave to appeal in this case. The standard for a warrant to obtain DNA evidence that is ultimately adopted by the S.C.C. will likely have a significant impact on search and seizure in relation to all forensic techniques that involve an invasion of the bodily integrity of individuals.
The comments on S.A.B. were prepared by Eric Gertner. Mr. Gertner is a partner and director of research at McCarthy Tétrault LLP in Toronto.
Lawyer(s)
Anne H Russell
John L. Nugent
Ronald Berger
Firm(s)
Supreme Court of Canada
Alberta Court of Appeal
Court of Appeal for Ontario
Supreme Court of British Columbia