Court File No. 36328
IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal of Alberta) BETWEEN:
ALI HASSAN SAEED
Appellant (Appellant)
–and–
HER MAJESTY THE QUEEN
Respondent (Respondent)
–and–
CRIMINAL LAWYERS’ ASSOCIATION (ONTARIO), ATTORNEY GENERAL OF ONTARIO, AND CANADIAN ASSOCIATION OF CHIEFS OF POLICE
Interveners
_______________________________________________________________ FACTUM OF THE INTERVENER
CRIMINAL LAWYERS’ ASSOCIATION (ONTARIO) _______________________________________________________________
Howard L. Krongold Vanessa MacDonnell
Abergel Goldstein & Partners LLP
116 Lisgar Street, Suite 200 Ottawa, Ontario K2P 0C2 (613) 235-9779
(613) 235-8317 fax howard@agpllp.ca
Counsel for Criminal Lawyers’ Association
Moira S. Dillon
Supreme Law Group
900 - 275 Slater Street Ottawa, ON K1P 5H9 (613) 691-1224
(613) 691-1338 fax
mdillon@supremelawgroup.ca
Peter J. Royal, Q.C.
Royal & Company
Suite 200, 9636-102AAvenue Edmonton, AB T5H OG5 (780) 432-0919
(780) 439-6562
proyal@royalteskey.com
Counsel for the Appellant
Colleen Bauman Goldblatt Partners LLP 500 30 Metcalfe Street Ottawa, ON K1 P 5L4 (613) 482-2463 (613) 235-3041 cbauman@sgmlaw.com
Ottawa Agent for the Appellant
Joanne B. Dartana Alberta Justice Appeals Branch 3r Floor, 9833-109 Street Edmonton, AB T5K 2E8 (780) 422-5402 (780) 422-1106 joanne.dartana@gov.ab.ca
Counsel for the Respondent
D. Lynne Watt
Gowling Lafleur Henderson LLP
Barristers & Solicitors 2600, 160 Elgin Street Ottawa, ON K1P 1C3 (613) 786-8695 (613) 788-3509
lynne.watt@gowlings.com
Ottawa Agent for the Respondent
Greg Preston & David Lynass
Edmonton Police Service
9620 - 103A Avenue N.W. Edmonton, AB T5H 0H7 (780) 421-2633
(780) 421-2867 fax
greg.preston@edmontonpolice.ca
Counsel for Canadian Association of Chiefs of Police
Lynda A. Bordeleau
Perley-Robertson, Hill & McDougall
1400 - 340 Albert Street Ottawa, ON K1R 0A5 (613) 238-2022 (613) 238-8775 fax
Agent for Canadian Association of Chiefs of Police
Susan Magotiaux
Crown Law Office, Criminal
720 Bay Street, 10th Floor Toronto, ON M5G 2K1 (416) 326-5238
(416) 326-4656 fax
susan.magotiaux@ontario.ca
Counsel for Attorney General of Ontario
Robert E. Houston, Q.C.
Burke-Robertson
441 MacLaren Street, Suite 200 Ottawa, ON K2P 2H3
(613) 236-9665 (613) 235-4430 fax
rhouston@burkerobertson.com
INDEX
PART I – OVERVIEW ... 1
PART II — POSITION ON QUESTION IN ISSUE ... 1
PART III — ARGUMENT ... 1
1. Authorizing forensic genital swabs would not be an incremental development of the common law. ... 1
1.1. Forensic genital swabs interfere with a detainee’s bodily and sexual integrity. ... 1
1.2. Permitting forensic genital swabs would significantly change the common law. ... 2
2. A common-law power would not provide sufficient procedural protections. ... 5
2.1. The presumption that a warrant should be required has not been rebutted. ... 6
2.2. A common-law rule cannot be administered in a way that will prevent unjustified searches from occurring. ... 7
2.3. A common-law rule cannot incorporate sufficient safeguards governing the manner of search. ... 8
2.4. A common-law rule will not include sufficient restrictions on the retention and use of DNA evidence. ... 9
PART IV — COSTS ... 10
PART I – OVERVIEW
1 This appeal requires this Honourable Court to consider whether to change the common law to permit police to conduct an intrusive forensic swab of a detainee’s genitals without consent, without a warrant, and without statutory authorization. All of the values that normally inform the development of the common law—incrementalism, administrability, respect for Charter values, and the need to protect the dignity and bodily integrity of individuals—weigh against recognizing the police power at issue in this case.
2 The CLA’s submissions are twofold. First, it is far from clear that forced forensic genital swabs should be permissible in any circumstances. This Court has repeatedly affirmed that, absent statutory
authorization, bodily samples may only be taken with consent. Altering the common law to permit forced genital swabs would not be an incremental change, and would be out of step with the statutory codes in England and Australia, which prohibit the taking of non-consensual “intimate” samples, or permit it only with a warrant. Second, even if the balance should be struck in favour of permitting genital swabbing in some circumstances, this Court lacks the tools to craft a scheme that will be administrable and provide sufficient safeguards for the collection, retention, and use of genital-swab evidence.
PART II — POSITION ON QUESTION IN ISSUE
3 The CLA’s position is that the common law does not permit the police to interfere with the sexual integrity of detainees by swabbing their genitals for evidence without consent.
PART III — ARGUMENT
1. Authorizing forensic genital swabs would not be an incremental development of the common law.
1.1. Forensic genital swabs interfere with a detainee’s bodily and sexual integrity.
4 This Court has held that taking a buccal (mouth) swab, or seizing pubic hairs or scalp hairs, represent “a significant invasion of bodily integrity.”1 And in Golden, this Court recognized that even a visual
inspection of a detainee’s genitals, without any physical contact, is “a significant and very direct interference with personal privacy” that is “inherently humiliating and degrading.”2
1 R. v. Stillman, [1997] 1 S.C.R. 607 at para. 91; R. v. S.A.B., 2003 SCC 60 at para. 44. 2 R. v. Golden, 2001 SCC 83 at paras. 89 – 90.
5 There can be little doubt that genital swabs are even more intrusive and degrading. Like any nonconsensual touching of a person’s sexual organs, swabbing a detainee’s genitals for evidence involves a direct physical interference with his sexual integrity.3 And while the detainee in this case
conducted the swab on himself, that will not always be the case. If the police have the power to demand a genital swab, they must also have the power to use force to obtain one where the detainee resists.4 Permitting the police to hold a detainee down, forcibly expose his genitals, and subject him
to degrading forensic swabbing is unquestionably a significant invasion of his privacy, dignity, and bodily integrity.
6 Nor is there is any reason why the search power proposed in this case would be confined to penile swabs. There will undoubtedly be cases in which police will suspect that a vaginal or anal swab will afford evidence of an offence, and there is no obvious reason why a common law police power should be limited to swabs of a man’s genitalia. While it may be argued that penile swabs are not penetrative, it is far from clear such a distinction is always meaningful. For example, taking a penile swab from an uncircumcised detainee involves more than just swabbing the exposed skin. Moreover, even if a penile swab is to be treated as non-penetrative, that would not prevent police from performing a swab of a female detainee’s external genitalia, or of the area around a detainee’s anus.
1.2. Permitting forensic genital swabs would significantly change the common law. 7 This Court heldin Stillman that the common law power to search incident to arrest “cannot be so
broad as to empower police officers to seize bodily samples,”5 and has repeatedly reaffirmed that,
absent statutory authorization, bodily samples can be seized only on consent:
The seizure of bodily samples is highly intrusive and, as this Court has often reaffirmed, it is subject to stringent standards and safeguards to meet constitutional requirements. Significantly, in R. v. Borden, [1994] 3 S.C.R. 145 (S.C.C.), this Court held that where there is no statutory authorization for the
seizure of bodily samples, consent must be obtained if the seizure is to be lawful. In R. v. Stillman,
[1997] 1 S.C.R. 607 (S.C.C.), Cory J., speaking for the majority, held that the seizure of bodily samples such as hair, buccal swabs and dental impressions, was not authorized by the common law power to search incident to arrest. The principle was again reaffirmed in R. v. Golden, [2001] 3 S.C.R.
679, 2001 SCC 83 (S.C.C.).6
The Respondent asks this Court to change this common law rule.
3 R. v. Hutchinson, [2014] 1 S.C.R. 346 at para. 102, per Abella and Moldaver J.J. concurring; R. v. Park, [1995] 2 S.C.R. 836 at para. 38
4 R. v. Asante-Mensah, [2003] 2 S.C.R. 3. 5 Stillman, supra at paras. 48 – 49.
8 This Court has recognized that the common law should develop incrementally. This is driven by practical concerns, including the need to ensure that “complex changes to the law with uncertain ramifications should be left to the legislature.”7 But it also recognizes that the courts should not
preempt the democratic process by making significant changes to the law that Parliament might not find to be justified. The question here is not merely when police should be permitted to forcibly swab a detainee’s genitals, but whether that power should exist at all. In most police-powers cases—whether about roadblocks, investigative detentions, or sniffer dogs—there is no serious question that the police power at issue will in some circumstances be justified. But it is far from self-evident that, given the opportunity, Parliament would authorize anything like the intrusion at issue here.
9 A review of the law in some other Commonwealth jurisdictions illustrates the point. In Golden, this Court looked to England’s statutory code, the Police and Criminal Evidence Act (“PACE”),8 to develop
a detailed scheme for conducting a strip search incident to arrest. This Court adopted several of the requirements set out in PACE as factors to consider “in deciding how best to conduct a strip search incident to arrest in compliance with the Charter.”9 As the Court recognized in Golden, however,
PACE distinguishes between different categories of searches,10 including between strip searches and
the collection of “intimate samples.” PACE explicitly prohibits the taking of intimate samples— including penile swabs—under any circumstances without consent.11 It would be surprising if
Golden, which drew so heavily from PACE, became the basis upon which this Court recognized a search power that PACE deems too intrusive to be permissible without consent.
10 Australia appears to have taken a different approach. For example, the CLA has examined the relevant legislation in the three largest states (New South Wales, Victoria, and Queensland). All of those jurisdictions permit genital swabs to be taken without consent, but only with a warrant.12
7 R. v. Salituro, [1991] 3 S.C.R. 654 at 666; R. v. Mann, [2004] 3 S.C.R. 59 at para. 17. 8 Police and Criminal Evidence Act 1984 (U.K.)
9 Ibid at para 101. 10 Ibid, at para 57.
11 PACE, supra, ss. 62, 65, 65A. Richard Stone, Textbook on Civil Liberties and Human Rights, 6th ed (Oxford:
Oxford University Press, 2006) at 141 [Stone, Civil Liberties and Human Rights]. PACE provides that where consent is withheld, the trier of fact “may draw such inferences from the refusal as appear proper”: s. 62(10). This is consistent with English law generally, which permits an adverse inference to be drawn from a suspect’s exercise of his legal rights in many situations, such as his pre-trial right to silence or failure to testify at trial: Criminal Justice and Public Order Act 1994 (U.K.), ss. 34 – 37.
12 Crimes (Forensic Procedures) Act 2000 (New South Wales), Parts 3 and 5; Crimes Act 1958 (Victoria), Part 3, Division 1 (30A); Police Powers and Responsibilities Act 2000 (Queensland), ss. 445 – 466, Schedule 6— Dictionary, “Intimate Forensic Procedure.” See also New South Wales Ombudsman, DNA Sampling and
11 In Canada, our Parliament has likewise given clear signs that searches that interfere with bodily integrity fall into a category of their own. In crafting the General Warrant power in the Criminal Code, Parliament explicitly excluded searches that interfere with “the bodily integrity of any person.”13 This strongly suggests that our Parliament viewed these searches as falling into a special
category. Similarly, the DNA-warrant provisions in the Code prescribe the means by which a bodily sample may be taken for DNA analysis. They do not authorize genital swabs.14 In Stillman, this
Court concluded that it was “certainly significant” that the Code’s DNA-warrant provisions did not permit the kind of search at issue in that case.15
12 For these reasons, this case is unusual. Most police-powers cases are only about when the police will have authority to engage in a particular investigative practice. But the Criminal Code, and the range of statutory positions taken in England and Australia, show that this case raises broader, more
fundamental questions. In our free and democratic society, how much of an intrusion into the sexual integrity of a detainee can be justified in the pursuit of a legitimate police investigation? Should there be a bright-line prohibition against violating a detainee’s sexual integrity to secure evidence? Or do the competing interests at play justify an intrusion in some circumstances?
13 These are not questions that the courts are well placed to answer. While the courts often adjudicate the limits of Parliament’s authority to trench on constitutional rights, the Respondent asks this Court to do something rather different: to arrogate to itself the lead role in deciding whether the state’s interest in effective law enforcement justifies a serious interference with a detainee’s sexual integrity,16
and then attempt to ensure that the complex constitutional interests of detainees, complainants, and (in some cases) third-parties are adequately protected. The fact that other jurisdictions have
concluded that this practice ought not to be permitted at all without consent, or that it requires a careful statutory scheme, is a sure sign that what is being contemplated is not a modest change to the common law.
14 In this regard, the Respondent’s reliance on Golden to justify forensic genital swabbing is misplaced. Physical searches for weapons and physical evidence, including strip searches, raise different
Other Forensic Procedures Conducted on Suspects and Volunteers under the Crimes (Forensic Procedures Act)
2000 (Sydney, NSW: New South Wales Ombudsman, 2006), Chapter 3 (online: https://goo.gl/4Vqbwr) 13 Criminal Code, s. 487.01(2).
14 Criminal Code, s. 487.06(1). 15 Stillman, supra at para. 43.
16 See generally James Stribopoulos, “In Search of Dialogue: The Supreme Court, Police Powers and the Charter” (2005) 31 Queen’s L J 1.
considerations than forcibly swabbing a detainee’s genitals for forensic evidence. For one thing, the nature of the search is different. Looking at a detainee’s private areas is profoundly different than taking a bodily sample from his sexual organs. This Court’s jurisprudence, and the Commonwealth legislation described above, illustrates that taking a forensic sample from a detainee’s genitals is qualitatively different than a strip search.17
15 Moreover, this Court has made clear that the common law power to search a detainee upon arrest must be truly “incidental.”18 Otherwise, the argument for dispensing with the warrant requirement
does not hold. A strip search, like other searches incident to arrest, is simply “a pragmatic extension to the power of arrest.”19 It is driven by the practical necessity of securing physical evidence or
weapons that are immediately available to be seized from the detainee’s person. Often, the offence for which the detainee has been arrested cannot be substantiated, and the detainee cannot be dealt with, without the search. In contrast, DNA evidence from a genital swab will not yield useful results for weeks or months. It is of no immediate value to an investigation, or to the pressing decisions police must make, such as whether to lay a charge or give bail to a detainee. The pragmatic considerations are quite different.
16 Finally, strip searches are designed to respond to a strategy employed by offenders to avoid
detection—no one ends up with drugs or a weapon secreted in or around the intimate parts of their body by accident. As a policy matter, prohibiting strip searches or requiring a warrant for every one might encourage these tactics, and tend to hamper effective law enforcement. Those concerns do not apply to the taking of genital samples.
2. A common-law power would not provide sufficient procedural protections.
17 Even if forensic genitals swabs should be permitted in some circumstances, this Court lacks the tools to craft a scheme that will be balanced and Charter compliant. First, there is insufficient justification to rebut the strong presumption that a warrant should be required. Second, it is not feasible to craft an administrable rule that can be readily applied by front-line police officers. Third, this Court is unable to set meaningful restrictions on the manner of search. And, finally, the common law would provide insufficient safeguards on the retention and use of DNA information.
17 See e.g. Law Enforcement (Powers and Responsibilities) Act 2002 (New South Wales), ss. 31, 33. 18 R. v. Fearon, [2014] 3 S.C.R. 621 at para. 16; R. v. Caslake, [1998] 1 S.C.R. 51 at para. 17. 19 Stillman, supra at para. 48.
2.1. The presumption that a warrant should be required has not been rebutted.
18 If genital swabbing is to be permitted at all, there is a strong presumption that a warrant should be required. Normally, “[prior] authorization is a precondition for a reasonable search where it is feasible to obtain it.”20 That presumption clearly applies here—this Court has recognized that “a violation of
the sanctity of a person’s body is much more serious than that of his office or even of his home.”21
19 At present, however, there is no statutory power that would authorize a warrant to conduct a genital swab. The Criminal Code’sprovisions for seizing DNA do not permit a genital swab to be taken.22
And the General Warrant power explicitly precludes searches that “interfere[] with the bodily integrity of any person.”23 Since a genital swab can only be characterized as an interference with
bodily integrity, it falls outside the scope of any available warrant power.24
20 Of course, the inability of police to obtain a warrant is not alone sufficient to justify the creation of a new common-law power. In Duarte, Wong, Wise, Borden, Feeney,and Stillman, this Court held that judicial authorization was required for the police conduct at issue, even though in each case there was no mechanism for police to obtain a warrant.25
21 To be sure, the perishability of the evidence at issue here raises questions about the feasibility of obtaining a warrant. But this factor has not proven decisive in other jurisdictions. In New South Wales, for example, an “interim order” can be sought if there is a concern about the destruction or degradation of evidence.26 If an interim order is issued allowing the collection of an intimate sample,
the sample cannot generally be analyzed until a magistrate conducts a full hearing into whether the order should have issued.27
20 R. v. M. (M.R.), [1998] 3 S.C.R. 393 at para. 44. 21 R. v. Pohoretsky, [1987] 1 S.C.R. 945 at 949.
22 The Code authorizes DNA to be obtained only by means of a buccal swab, plucking hairs, or taking a blood sample: Criminal Code, s. 487.06(1)(a – c).
23 Criminal Code, s. 487.01(2).
24 This concern was raised, although not addressed, in R. v. Laporte, 2012 MBQB 227 at para. 21. 25 R. v. Duarte, [1990] 1 S.C..R 30; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Borden, [1994] 3 S.C.R. 145; R. v. Feeney [1997] 2 S.C.R. 13; Stillman, supra. See Michal Fairburn, “Twenty-Five Years in Search of a Reasonable Approach” (2008), 40 S.C.L.R. (2d) 55. Some authors have credited the Court’s restraint as providing the impetus for expanding the statutory search powers of police: Fairburn, ibid; Stribopoulos, supra.
26 Crimes (Forensic Procedures) Act 2000, supra, Part 5, Division 3, s. 32. An interim order may be made by an “authorized officer,” which is defined as a magistrate, court registrar, or a designated employee of the Attorney General: see Crimes (Forensic Procedures) Act 2000, supra ss. 3, 32, and Law Enforcement (Powers And Responsibilities) Act 2002 (New South Wales), s. 3.
22 What is more, the evidentiary record in this case provides a poor basis upon which to find that a warrant ought not to be presumptively required. This is not a situation where, after careful
deliberation and study, Parliament has concluded that it is not realistic to expect that a warrant can be obtained and legislated a carefully calibrated statutory scheme for warrantless searches. Instead, this Court is being asked to enunciate a new police power, with nationwide and long-lasting impact, based on the testimony of a single expert witness in a single trial. It is far from clear that this expert’s evidence should become the last word on perishability. This is an area in which there appears to be no scientific consensus. The expert in this case conceded that “there isn’t a lot of literature on the subject.” He referred to a single study, which was not identified or produced to the court. That study purportedly showed degradation occurring in as little as five hours in some (unidentified) number of cases. But it also revealed no degradation occurring even after 24 hours in other instances.28 In
contrast, in Laporte, the prosecution’s expert testified that “bodily materials deteriorate after 12 hours,” and the court was urged to find that it is “important to take penile swabs within 24 hours.”29
In determining if it is feasible to obtain a warrant, the difference between five hours and 12 hours may well prove determinative. Surely it is prudent for this Court to have solid, unambiguous scientific evidence before crafting a new common-law rule.
2.2. A common-law rule cannot be administered in a way that will prevent unjustified searches from occurring.
23 It is not feasible to craft an administrable common-law rule that would protect against unjustified searches. As this Court has recognized, “it is necessary to have a means of preventing unjustified searches before they occur, rather than simply determining after the fact whether the search should have occurred.”30 A legal test that cannot be applied consistently will not achieve that objective.
24 Golden sets out an “enhanced” search-incident-to-arrest standardthat, if adopted here, would require reasonable and probable grounds to conduct a genital swab. Presumably, that would require
reasonable and probable grounds to believe that a genital swab will afford evidence of the offence for which the detainee has been arrested.31 But just because a sound legal test can be articulated does not
mean that it can realistically be applied. The fact that swabbing becomes ineffective at providing useful evidence some uncertain number of hours after contact means that there will quickly come a
28 A.R. p. 98.
29 R. v. Laporte, 2012 MBQB 227 at para. 20. 30 Golden, supra at para. 89.
point at which, due to the passage of time or other intervening events, it is no longer reasonable to believe that a swab will afford evidence. It is unrealistic to expect that this Court could craft a rule that would allow police to identify cases in which the state’s interest in taking a genital swab exceeds a detainee’s considerable privacy and dignitary interests.
25 A common-law rule that permitted searches to occur without grounds to believe evidence will be obtained would not strike a constitutionally-sound balance between the interests of law enforcement and the Charter rights of detainees.32 It is difficult to imagine how a front-line police officer would be
able to assess when this point had been reached. To form reasonable grounds to believe that evidence
will be obtained, a police officer would need to know how long DNA evidence is likely to persist in a useful form (something that is difficult to ascertain even with the benefit of the expert evidence called at trial), and then assess whether it is likely that bodily fluids were deposited, how long it is had been since the contact occurred, and how long it would take to administer the swabbing. How realistic is it to expect that a front-line police officer, harried by legitimate concerns about perishable evidence, would know to ask these questions, much less how to answer them?
2.3. A common-law rule cannot incorporate sufficient safeguards governing the manner of search.
26 This Court is also not in a position to prescribe the manner in which genital swabs will be
conducted, including who will be permitted to authorize them, how officers will be trained, or to set down clear guidelines about the manner in which they are to be conducted. For example, PACE
requires that consensual genital swabs be authorized by an officer who is at the inspector level or higher.33 Both the authorization and the consent must be reduced to writing, as must the reasons for
authorizing the seizure.34 Among other informational duties, the police must advise the detainee that
the seizure has been authorized, the grounds for that authorization, and the offence to which the seizure relates.35 Depending on the nature of the sample being collected, the sample must be taken by
a particular health care professional.36 In contrast, the most this Court is realistically able to do is to
list a series of factors that will be considered after-the-fact in response to a Charter challenge.
32 Hunter v. Southam, supra at 167. 33 PACE, supra, s. 62(1)(a). 34 Ibid, s. 62(3), (4), (7), (8). 35 Ibid, s. 62(5), (6).
27 The comparison to the regime for executing a DNA warrant in Canada is also illustrative. The Code requires an issuing judge to consider whether there is someone who, by virtue of his or her training or experience, is able to conduct the seizure. The judge “shall” include terms and conditions that that the judge “considers advisable to ensure that the seizure…is reasonable in the circumstances.” The search must be conducted in a way that respects the subject’s privacy. And police must inform the subject of the authority for taking the sample, the nature of the procedure, its purpose, the authority to use reasonable force if necessary, and the potential uses of any evidence obtained. It also prescribes additional requirements when a warrant is executed against a young person. These safeguards provide judicial oversight, and protect detainees from the unnecessary stress and indignity of being subjected to an intrusive search without knowing its scope and purpose. They also dissuades subjects from resisting a search by informing them of the police’s power to use reasonable force.37
28 In comparison, the common law can offer little but a list of factors. As a result, a common-law power is far less likely to be consistently and correctly applied. While the courts will of course examine the manner of search after-the-fact, that will be cold comfort to detainees who have already been forced to undergo an unreasonable violation of their sexual integrity. This state of affairs serves no one very well. Police and detainees both have a strong interest in the kind of clear rules and procedural safeguards that only a careful, narrowly-tailored statutory scheme can provide.
2.4. A common-law rule will not include sufficient restrictions on the retention and use of DNA evidence.
29 In addition to the intrusiveness inherent in obtaining the evidence, there are also important Charter -protected interests at stake in the retention and use of DNA information extracted from a genital swab. A penile swab may yield the DNA of a detainee, a complainant, or third-parties with whom the detainee has had contact. It may even yield DNA from third-parties with whom the complainant
has had contact.38 All of these individuals have a significant Charter-protected interest in the
informational content of their DNA,39 and (for third-parties in particular) the association of their
DNA with the detainee’s genitals. The impact of a search on third parties,40 and the safeguards
governing the use to which seized evidence is later put, are both relevant considerations under s. 8.41
37 Criminal Code, s. 487.05 – 487.07.
38 In Pruden, DNA from the complainant’s boyfriend was found on the accused’s penis: R. v. Pruden, 2013 MBCA 107 at para. 4.
39 S.A.B., supra at para. 48.
40 R. v. Thompson, [1990] 2 S.C.R. 1111 at 1143.
30 The existing DNA warrant regime in Canada, as well as the statutory regimes governing the collection of forensic samples in Australia,42 demonstrate that only a statutory regime can provide
adequate safeguards for these privacy interests. For example, among other restrictions, the DNA warrant regime in the Criminal Code permits only “forensic DNA analysis,” which is restricted to “non-coding DNA” that “does not reveal any medical, physical or mental characteristics.”43 The Code
prohibits the results from being used except in relation to the designated offence, and places limits on the retention of both the bodily substance and the test results.44
31 A common-law scheme would not incorporate similar safeguards. Although the Criminal Code affords some limits on the retention of items seized in the execution of a common law power, that scheme would require a complainant or third party to advance a claim that he or she is the “lawful owner or person who is lawfully entitled to possession” of his or her genetic material obtained from someone else’s genitals.45 Moreover, the Code would not appear to govern the retention of information
generated from the analysis of a swab, only the original physical sample. PART IV — COSTS
32 The CLA seeks no costs and asks that no costs be awarded against it. PART V — ORDER SOUGHT
33 The CLA seeks permission to present oral argument at the hearing of this appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
November 17, 2015.
________________________________
Howard L. Krongold
Of Counsel for the Criminal Lawyers’ Association (Ontario)
________________________________
Vanessa MacDonnell
Of Counsel for the Criminal Lawyers’ Association (Ontario)
42 See e.g. Crimes (Forensic Procedures) Act 2000, supra ss. 86 – 89. 43 Criminal Code, s. 487.08(1); S.A.B., supra at para. 49.
44 Criminal Code, s. 487.08(2) and 487.09(1). 45 See Criminal Code, ss. 489.1 – 490.
PART VI— TABLE OF AUTHORITIES
Cases Cited at para.
Goodwin v. B.C., 2015 SCC 46 41
Hunter v. Southam Inc., [1984] S.C.R. 145 24, 25
R. v. Asante-Mensah, [2003] 2 S.C.R. 3 5 R. v. Borden, [1994] 3 S.C.R. 145 20 R. v. Caslake, [1998] 1 S.C.R. 51 15 R. v. Duarte, [1990] 1 S.C.R 30 20 R. v. Fearon, [2014] 3 S.C.R. 621 15 R. v. Feeney [1997] 2 S.C.R. 13 20 R. v. Golden, 2001 SCC 83 4, 9, 23 R. v. Hutchinson, [2014] 1 S.C.R. 346 5 R. v. Laporte, 2012 MBQB 227 19, 22 R. v. Mann, [2004] 3 S.C.R. 59 8 R. v. M. (M.R.), [1998] 3 S.C.R. 393 18 R. v. Park, [1995] 2 S.C.R. 836 5 R. v. Pohoretsky, [1987] 1 S.C.R. 945 18 R. v. Pruden, 2013 MBCA 107 29 R. v. S.A.B., 2003 SCC 60 29, 30 R. v. Shoker, [2006] 2 S.C.R. 399 7 R. v. Stillman, [1997] 1 S.C.R. 607 4, 7, 11, 15, 20 R. v. Thompson, [1990] 2 S.C.R. 1111 29 R. v. Tse, 2012 SCC 16 41 R. v. Wise, [1992] 1 S.C.R. 527 20 R. v. Wong, [1990] 3 S.C.R. 36 20
Other Authorities Cited at para.
Crimes Act 1958 (Victoria), Part 3, Division 1 (30A) 10
Crimes (Forensic Procedures) Act 2000 (New South Wales), Parts 3 and 5 10, 21 Michal Fairburn, “Twenty-Five Years in Search of a Reasonable Approach”
(2008), 40 S.C.L.R. (2d) 55. 20
Law Enforcement (Powers and Responsibilities) Act 2002 (New South Wales), ss.
31, 33 14, 21
New South Wales Ombudsman, DNA Sampling and Other Forensic Procedures Conducted on Suspects and Volunteers under the Crimes (Forensic Procedures Act) 2000, Sydney, NSW: New South Wales Ombudsman, 2006, Chapter 3 (online: https://goo.gl/4Vqbwr)
Police and Criminal Evidence Act 1984, ss. 62, 65, 65A 9, 26
Police Powers and Responsibilities Act 2000 (Queensland), ss. 445 – 466,
Schedule 6—Dictionary, “Intimate Forensic Procedure.” 10 Richard Stone, Textbook on Civil Liberties and Human Rights, 6th ed (Oxford:
Oxford University Press, 2006) at 141. 9, 26
James Stribopoulos, “In Search of Dialogue: The Supreme Court, Police Powers
