IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA)
BETWEEN:
ALl HASSAN SAEED
-and-HER MAJESTY THE QUEEN
FACTUM OF THE APPELLANT
Appellant (Appellant)
Respondent (Respondent)
(Pursuant to Rule 35 and 42 of the Rules of the Supreme Court of Canada)
Royal & Company
Barristers Suite 200, 9636-102AAvenue Edmonton, AB T5H OG5 Peter J. Royal, Q.C. Tel: (780) 432-0919 Fax: (780) 439-6562 Email: proyal@royalteskey.com Counsel for the Appellant
Goldblatt Partners LLP
Barristers & Solicitors 500 30 Metcalfe Street Ottawa, ON K1 P 5L4 Colleen Bauman Tel: (613) 482-2463 Fax: (613) 235-3041 Email: cbauman@sgmlaw.com Ottawa Agent for the Appellant
Alberta Justice Appeals Branch 3r Floor, 9833-109 Street Edmonton, AB T5K 2E8 Joanne B. Dartana Tel: (780) 422-5402 Fax: (780) 422-1106 Email: joanne.dartana@gov.ab.ca Counsel for the Respondent
Gowling Lafleur Henderson LLP
Barristers & Solicitors 2600, 160 Elgin Street Ottawa, ON K1P 1C3 D. Lynne Watt Tel: (613) 786-8695 Fax: (613) 788-3509 Email: lynne.watt@gowlings.com Ottawa Agent for the Respondent
A. Background Facts B. The Decision at Trial
C. The Decision at the Alberta Court of Appeal
PART II: STATEMENT OF QUESTIONS IN ISSUE
1 2
3 5
1. Did the majority of the Alberta Court of Appeal err in 5
characterizing the magnitude of the Charter breach?
2. If the majority of the Court of Appeal erred in finding that 5
the penile swab required a warrant, was the search a valid exercise of the police power to search incident to arrest?
3. Did the majority of the Court of Appeal err in upholding the 6 Trial Judge's admissionof the DNA evidence in this case?
PART Ill: ARGUMENT 6
A. Introduction and Analysis 7
1. The Background Surrounding Penile Swab Cases 8
a) Exploring Search Incident to Arrest 8
b) Search Incident to Arrest and Searches of the 1 0
Person
c) Search Incident to Arrest and Penile Swab Cases 13
2. Balancing Penile Privacy and Law Enforcement 15
Interests
a) The Pronounced Privacy Interest in the Penis 15
b) The Law Enforcement's Interest in Investigation 19
c) The Final Balancing 20
3. Approach 22
B. Application to the Appellant's Case 24
C. The Exclusion of the Evidence 26
1. Seriousness of the Charter-Infringing State Conduct 28
2. Impact on the Charter-Protected Interests of the 29
Accused
3. Society's Interest in Adjudication on the Merits 30
D. Concluding Remarks 30
PART V: NATURE OF THE ORDER SOUGHT
PART VI: TABLE OF AUTHORITIES
PART VII: STATUTORY PROVISIONS
31 32 34
PART I: STATEMENT OF FACTS
1. Ali Hassan Saeed ("the Appellant") was charged with one count of
aggravated sexual assault, one count of uttering threats, and one count of sexual interference, each relating to the same Complainant, T.S. The matters proceeded to trial before Madam Justice Sulyma of the Court of Queen's Bench of Alberta in December 2012 and January 2013. On January 11, 2013, the Learned Trial Judge convicted the Appellant of the lesser included offence of sexual assault with a weapon contrary to section 272(1)(c) and sexual interference contrary to section 151 of the Criminal Code, the Crown having withdrawn the uttering threats count at the time of argument. On February 8, 2013, the Appellant was sentenced to five years' gaol on the sexual assault and one year gaol, concurrent, on the sexual interference.
2. The Appellant appealed his convictions to the Alberta Court of Appeal. In
a two part judgment delivered on July 22, 2014, the Court of Appeal upheld the Appellant's convictions. After having been granted leave, the Appellant now appeals that decision to this Honourable Court.
A. BACKGROUNDFACTS
3. On May 22, 2011, the Appellant was 26 years of age and the Complainant
was 15. In the early morning hours of that day, the Appellant and the Complainant, who were known to each other, decided to embark on a period of drinking at the Appellant's apartment, along with two friends. After some time, the Complainant became very tired and drunk and was helped by her friend into a bed in the apartment. The Complainant's friend and the other party then left the apartment for a short time. The Complainant's friend testified that when they returned she saw the Appellant on the front lawn of the complex, with a knife in his hand, on top of the Complainant, forcing the Complainant's legs open.
4. Police were called to the scene and were directed to the Appellant's apartment by the Complainant's friend. The Appellant was arrested at 6:05AM.
Due to someone's "bad judgment" (R. v. Saeed, 2014 ABCA 238 (TAB 18);
Reasons for Judgment Reserved of The Honourable Mr. Justice McDonald (Saeed Minority Judgment, at para. 6) the Appellant was released from custody
and arrested again at 8:35AM. When the Appellant arrived at the police station between 8:45 and 8:50AM he was placed in a dry cell without a toilet or running water. The Appellant was handcuffed to a steel pipe with his hands behind his back.
5. At 10:26 AM, the police obtained a penile swab from the Appellant to
search for the Complainant's DNA. The process surrounding the penile swab took a total of two minutes and consisted of two male officers watching and directing the Appellant as he wiped his own penis and then turned over the swab. There was also a camera in the cell that recorded the procedure. The officers involved gave no real consideration to obtaining a warrant or telewarrant prior to undertaking this swab (TT p. 285, II. 8-11).
6. While the Appellant was undergoing the penile swab, the Complainant met
with a Sexual Assault Nurse Examiner, who she eventually saw at 10:22 AM (TT p. 56, II. 28-29). A sexual assault examination kit was conducted and the material acquired was eventually seized by police, including a standard of the Complainant's DNA. The sample of the Complainant's DNA was compared with the swab taken from the Appellant's penis at the RCMP forensics laboratory and found to be a match (TT p. 308, II. 9-17).
B. THE DECISION AT TRIAL
7. At the trial of these matters, the Crown tendered the DNA evidence
derived from the penile swab taken from the Appellant. A voir dire was held to
his Charter rights and whether the evidence ought to have been admitted. The Learned Trial Judge found that the search breached the Appellant's section 8
Charter rights, as the Crown had failed to meet its burden of proving that the warrantless search had met the requirements for a valid search incident to arrest, saying:
"given the police officers in question did not consider at all the possibility of obtaining legal authority to swab within an appropriate time frame that would cover their concern of preserving the evidence or the scientific concern not articulated by any of the police officers, to avoid loss of DNA evidence or degradation of such evidence"
(TT p. 288, II. 25-31)
However, the Learned Trial Judge allowed the evidence to be admitted under
section 24(2) of the Charter. She concluded that because the search was not
performed in bad faith and society's interest in adjudication of sexual assault cases is high, the impugned evidence would not bring the administration of justice into disrepute if admitted.
8. The other evidence at trial consisted of the evidence of the Complainant,
her friend, and the police officers involved in the Appellant's arrest. The Complainant initially identified the Appellant as the perpetrator, but in cross-examination denied that she honestly believed it was the Appellant who had attacked her. In her Reasons for Judgment, the Trial Judge stated that she would not have been able to convict solely on the identification evidence of the Complainant, but based on the combined evidence of the Complainant's friend, the evidence of the police investigation, and the evidence obtained by the penile swab, she could convict.
C. THE DECISION AT THE ALBERTA COURT OF APPEAL
9. On May 2, 2014, counsel for the Appellant appeared before the Alberta
Court of Appeal on his appeal from conviction. The issues argued before that Court were whether the Trial Judge's decision to admit the penile swab evidence
under section 24(2) of the Charter was in error and whether the convictions were
reasonable.
10. In their majority decision, Justices Bielby and Watson upheld the findings
of the Trial Judge that the penile swab represented an illegal search that was in breach of the Appellant's section 8 rights. Justices Bielby and Watson took the view that:
"... unless a statute otherwise provides, a warrant is required for any intimate search and seizure for bodily samples from the person, absent consent, absent evidence which establishes that the time required to apply for a warrant could result in the bodily samples sought significantly deteriorating or disappearing before a search and seizure under warrant could be undertaken or absent evidence of extreme exigency. Such a search cannot be justified, without a warrant, simply on the basis of being incidental to arrest."
(R. v. Saeed, supra (TAB 18); Reasons for Judgment Reserved of The Honourable Mr. Justice Watson and The Honourable Madam Justice Bielby ("Saeed, Majority
Judgment"), at para. 62)
11. Nevertheless, Justices Bielby and Watson found that the Trial Judge
properly admitted the penile swab as evidence under section 24(2). In determining the seriousness of the breach, they found that the magnitude of the breach must be considered in light of the likelihood that, had a telewarrant been sought, it would have been granted.
12. In his minority decision, Justice McDonald found that the appeal ought to
be dismissed outright because there had been no breach of the Appellant's section 8 rights. Justice McDonald found that the penile swab did not breach the Appellant's section 8 rights because it was conducted as part of a search incident to arrest. In his reasons, Justice McDonald concluded that no warrant or special
justification is required for this type of penile swab (R. v. Saeed, supra (TAB 18)
PART II: STATEMENT OF QUESTIONS IN ISSUE
1) Did the majority of the Alberta Court of Appeal err in characterizing the magnitude of the Charter breach?
Position of the Appellant
13. A warrantless penile swab is a serious breach of an individual's privacy rights. The magnitude of this breach cannot be minimized by the fact that a warrant may have been granted if requested. To allow evidence obtained through such an egregious breach of an individual's rights into evidence would bring the administration of justice into disrepute.
2) If the majority of the Court of Appeal erred in finding that the penile swab required a warrant, was the search a valid exercise of the police power to search incident to arrest?
Position of the Appellant
14. If a warrant is not required to search a person's genitals, that search must still be allowed only in the narrowest of circumstances. The power of search incident to arrest is not so broad as to encompass such a search and ought not to be extended to the degree discussed in the Minority Judgment in the Court of Appeal.
3) Did the majority of the Court of Appeal err in upholding the Trial Judge's admission of the DNA evidence in this case?
Position of the Appellant
15. A warrantless search is prima facie unlawful. If the Appellant is
unsuccessful in satisfying this Honourable Court that a warrant was required in this case, the evidence still ought to have been excluded. While the law in this regard was not clear at the time of the Court of Appeal decision, the breadth of an individual's privacy in his person was. The humiliating affront to human dignity of forcing someone to strip naked and touch themselves, and the high degree of privacy interest in the penis, outweigh the valid law enforcement objective of securing evidence in a penile swab search. Absent clear evidence of exigent circumstances, the failure to even consider obtaining a warrant in this case weighs strongly in favour of exclusion.
PART Ill: ARGUMENT
16. Each of the three questions in issue in this case engages a different
branch of the same tree. The fundamental question which this Honourable Court must determine is whether the Learned Trial Judge and the Majority in the Court of Appeal were correct that the penile swab obtained in this case was an illegal search. In the Appellant's respectful submission, they were. Either the police were required to obtain a warrant or the Crown was required to point to some other common law power which justified the search. If a warrant was required, the nature of the section 8 breach and its gravity are significantly different than if one was not. As such, this first underlying question greatly impacts the analysis under section 24(2).
17. If the Appellant, the Learned Trial Judge, and the Majority of the Court of Appeal are found to be in error in asserting that a warrant ought to have been obtained, there remains the question of whether or not the penile swab conducted in this case was justified at common law. The Minority in the Court of Appeal so found under the power of search incident to arrest. In the Appellant's respectful submission, this was a broad extension of that power, unjustifiable in law. As such, if a warrant could not have been obtained, there was no legal justification to search as there is no codified or common law power which
enables the police to conduct a search of this kind.
18. A decision by this Honourable Court that the search was justified under
the common law power to search incident to arrest, and was conducted reasonably, also gravely impacts the nature and gravity of the breach in this case, thereby impacting the 24(2) analysis and potentially the admission of the evidence. As such, the overarching question of whether or not this evidence ought to have been admitted must be analyzed by answering the first two questions in issue.
A. INTRODUCTION AND ANALYSIS
19. The purpose of section 8 is to prevent unjustified searches before they
happen, not to decide, after the fact, whether they ought to have occurred. This is
best accomplished by requiring the police to get a warrant (Hunter v. Southam,
[1984] S.C.J. No. 36 (TAB 12). It has fallen to this Honourable Court on many
occasions to make difficult decisions about what type of search can be reasonably justified without a warrant, while still protecting the rights of Canadian citizens. The first step of that justification is determining whether the search itself is lawful, because it is authorized by statute or at common law and that statute or common law is itself reasonable. The second step is a determination of whether
a lawful search was conducted in a reasonable manner (R.
v.
Collins, [1987] 120. An individual's private sphere is inherently attached to their body, and there is no greater affront to human dignity than interference with one's body. Therefore, it is only in the rarest of circumstances that the police are allowed to search an individual without a warrant (R. v. Simmons, [1988] S.C.J. No. 86 at para. 47 (TAB 19)). The presumption that a warrant is required to search protects individuals against unjustified intrusion on their bodies amounting to assaults by the state, thereby ensuring that Canadian citizens maintain an exclusive domain over their bodies.
21. Upon one's body there is no area more private than one's genitals. Penile swabs are the ultimate affront to human dignity and bodily integrity. They are humiliating, degrading, and embarrassing. Requiring the police to obtain a warrant prior to conducting a penile swab, absent exigent circumstances, is the only way that the immensely private sphere of the penis can be protected.
1) THE BACKGROUND SURROUNDING PENILE SWAB CASES
22. The Alberta Court of Appeal differed in their opinion as to whether a penile swab could be classified as a search incident to arrest, or if it was a search that required a warrant. The following three subsections will provide this Honourable Court with some background as to how other Canadian courts have dealt with this contentious issue.
(a) EXPLORING SEARCH INCIDENT TO ARREST
23. The starting point from which all Courts determine whether there has been a breach of section 8 is that a warrantless search is prima facie unconstitutional. The onus is on the Crown to establish on a balance of probabilities the legality of the search (R. v. Laporte, 2012 MBQB 227, at para. 10 (TAB 14)), including that
it was justified by law, the law itself is reasonable, and it was conducted reasonably.
24. Canadian law has recognized that pre-authorization is not always feasible
and common law exceptions to the warrant presumption include searches by
consent, searches incident to arrest, and searches in exigent circumstances (R.
v. Saeed, supra (TAB 18) Majority Judgment, at para. 50).
25. When faced with a warrantless search under the power to search incident
to arrest, a court must balance the duty of law enforcement to effectively investigate crimes and the rights of the individual to be free from an
unreasonable invasion of privacy and unwarranted humiliation (Laporte, supra, at
para. 10 (TAB 14).
26. As stated in the dissenting judgment of this Honourable Court in R.
v.
Fearon, [2014] 3 S.C.R. 621(TAB 5), the scope of the police power to search incident to arrest is not without limits, and it does not extend to searches which encroach on an individual's most private spheres, such as searches of their home or the taking of bodily samples (at para. 1 04).
27. In Cloutier v. Langlois, [1990] 1 S.C.R. 158 (not reproduced), this Honourable Court set out three important limits on the search incident to arrest power:
1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied
without a search, the police may see fit not to conduct a
search. They must be in a position to assess the
circumstances of each case so as to determine whether a search meets the underlying objectives.
2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence
against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.
(as cited in R. v. Caslake, [1998] 1 S.C.R. 51 (TAB 4) at
para. 14)
(b) SEARCH INCIDENT TO ARREST AND SEARCHES OF THE PERSON
28. Long before the question was asked whether a penile swab fell under the
search incident to arrest umbrella, Canadian courts began exploring the limits of search incident to arrest for searches of the person. Because such searches involve such gross violations of an individual's privacy and bodily integrity, they have ordinarily not been justified by the incident to arrest exception.
29. In R. v. Stillman, [1997] 1 S.C. R. 607 (TAB 22) at page 49, this Honourable Court found that samples taken from the body could not be justified
as a search incident to arrest. The level of intrusiveness of body sample
searches, and the reality that there is no practical danger of the evidence disappearing, tilted body sample searches past the reasonable limits required for search incident to arrest.
30. However, in R. v. Golden, [2001] S.C.C. 83 (TAB 7), this Honourable
Court chose a different route to legalize the even more invasive strip search if conducted in certain circumstances. The Court found that strip searches are not ordinarily justified incident to arrest. In order for a strip search to be lawful under this power, it must be performed for the purpose of discovering weapons on the
arrested person or evidence related to the reason for arrest, must be based on reasonable and probable grounds to believe there is such an item concealed, and there must be reasonable and probable grounds for the arrest (at para. 99). The search must be related to the reason for the arrest itself. For example, it would be unreasonable for the police to arrest an individual for a traffic violation
and then conduct a strip search for drugs (Ibid, at para. 92).
31. R. v. Golden, supra, was a prime example of the principle that as a search increases in invasiveness, so too increases the assault on human dignity, and a
higher standard of justification is required. In R. v. Greffe, [1990] 1 S.C.R. 755
(TAB 9) this Honourable Court found that it is the intrusive nature of a body cavity search, and the considerations of human dignity and bodily integrity, that demand a high standard for justification before such a search will be reasonable (at para. 51). The police require reasonable and probable grounds for believing an individual is secreting evidence before performing a body cavity search for
evidence, and strict compliance with the guidelines from Golden must be
adhered to (R. v. Johal, 2015 BCCA 246 (TAB 13)).
32. R. v. Golden, supra, served another pivotal purpose in allowing strip searches and that was to set out when a strip search could be said to have been conducted reasonably. This Honourable Court clearly stated that a strip search, even when it meets the criteria above, will not be lawful if it is not carried out in accordance with the following eleven guidelines:
1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum amount of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time? 9. Will the strip search involve only visual inspection of the arrestee's genital
and anal areas without any physical contact?
1 O.lf the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted (Ibid, at para 101 )?
By setting out these guidelines, this Honourable Court made a clear statement that there was no outright justification of strip searches incident to arrest. Clearly the bar of how these searches could lawfully be conducted and in what circumstances, was raised above other searches incident to arrest. This also corroborates the high degree of invasiveness inherent in a search of one's person and private areas.
33. Searches incident to arrest have also been found to be reasonable in seizure of clothing cases (R. v. Backhouse, [2005] 195 O.A.C. 80 (TAB 3), at para. 88), cases of swabs for Gun Shot Residue on an individual's hands (Ibid, at para. 145), and cases of swabs for the complainant's DNA on exposed areas of an individual like the hands (R. v. Robles, 2008 BCSC 133 (TAB 17), at para. 66) and elbows, wrists, and earlobes (R. v. Smyth, (2006) O.J. No. 5527 (TAB 21)).
Each of these cases provides a helpful comparator, but pales in comparison to the privacy issues at play in cases of penile swabs.
(c) SEARCH INCIDENT TO ARREST AND PENILE SWAB CASES
34. Canadian courts have applied what past courts have found to be
reasonable for searches of persons incident to arrest, to penile swab cases with varying results. Some courts seem to have blended the consideration of exigent circumstances and the power to search incident to arrest while others have justified the search as akin to a strip search.
35. In R. v. Harasemow, 2014 BCSC 2287 (TAB 10), the Court concluded that a seizure of the detainee's fingernail clippings and a penile swab could both be justified incident to arrest. The Court found that the penile swab was analogous to a strip search. When examining whether there were exigent circumstances justifying the search, the Court found that exigent circumstances were not necessary. The Court found that exigent circumstances for strip searches only apply to searches "in the field" (Ibid, at para. 22), but nevertheless found that if exigent circumstances were required for a penile swab, such circumstances were present in that case.
36. In R. v. Hodgson, (2008) O.J. No. 4748 (TAB 11), the Court was required to consider the reasonableness of a penile swab in light of the voluntariness of an alleged oppressive statement. The Court found that the penile swab was "analogous to the swabbing of a victim's blood from the person of the defendant,
such as occurred in R. v. Smyth" (at para. 17). It also found that the penile swab
was a reasonable strip search incident to arrest that was performed in exigent
circumstances as defined in R. v. Golden (Ibid, at para. 14).
37. The Ontario Superior Court of Justice also found that a penile swab could
Ali, 2014 ONSC 6609 (TAB 1) but only if performed in exigent circumstances. However, it was found that the detainee's 10(b) rights were violated, as he should have been given an opportunity to speak with counsel after being advised that a penile swab was going to be taken (at para. 11).
38. In R. v. Arney, 2013 ONSC 5108 (TAB 2), it was found that the detainee's section 1 O(b) rights were breached when the detainee was made to undergo a penile swab before being allowed to speak to counsel. The evidence was excluded for that reason alone. The penile swab, however, was found to be a reasonable strip search incident to arrest as the "search was reasonable, conducted in a reasonable manner and was incident to arrest in light of the exigent circumstances" (at para. 62). The Court went on to detail the grounds that the police had for the search, and the fact that there was evidence that a warrant would have entailed a delay of 12 hours to 2 days.
39. R.
v.
Arney, supra, can be contrasted with the case of R.v.
Pun, 2012ONSC 5305 (TAB 16) where a penile swab search was found to not be a
reasonable strip search incident to arrest. In R.
v.
Pun, supra, the Court foundthat the swab was taken in breach of the detainee's section 8 rights because the manner in which the swab was taken was not reasonable, the police did not articulate the grounds upon which they undertook the search, the police did not turn their mind to the possibility of obtaining a warrant, and exigent circumstances to justify the search could not be established (at para. 49).
40. In R.
v.
Laporte, supra, (TAB 14) the Court found that the standard inStillman applied and the common law power of search incident arrest was not so broad as to permit the seizure of bodily samples that were in no danger of disappearing. The Court found that there were not exigent circumstances in the two cases from 2007 and 2008, and a warrant should have been obtained prior to swabbing the detainee's penis in both (at para. 19).
41. The manner of the taking of the penile swab in R. v. Laporte, supra, (TAB
14) was also found to be unreasonable. The detainee was denied the right to
speak to counsel immediately on his arrest (which was testified to as being
normal procedure in penile swab cases [Ibid, at para. 7]), the number of officers
present in the small room where the swab was conducted was excessive, there was use of a spit sock, and the amount of force used was shocking and
unacceptable (Ibid, at paras. 24-26). Despite the section 8 breach, the Court
found that the evidence taken in the 2007 case should be admitted under section 24(2) because with the complainant unable to testify the DNA evidence was
significant (Ibid, at para. 30). The evidence connected to the 2008 penile swab
was not admitted because the court found that admittance would bring the
administration of justice into disrepute (Ibid, at para. 31).
42. All of the above cases demonstrate that lower courts have struggled with
penile swab searches. In some circumstances, such searches have been justified solely as incident to arrest. In others, the courts have required the police
to meet the more stringent standards applicable to strip searches as found in R.
v. Golden, supra, (TAB 7). Still others have applied neither of these doctrines and have focused solely on exigency; which in the Appellant's respectful submission, belies an understanding that a warrant was required, but for the exigent circumstances. It is clear that it is time for this Honourable Court to give guidance to trial courts as to how to deal with this type of evidence. That guidance should begin with the declaration that a penile swab conducted without a warrant is illegal and a gross breach of section 8.
2) BALANCING PENILE PRIVACY AND LAW ENFORCEMENT
INTERESTS
(a) THE PRONOUNCED PRIVACY INTEREST IN THE PENIS
43. There is no other area of a person's body which attracts a higher privacy
warrant or can be a valid search incident to arrest, this Court must balance the heightened privacy interest in the penis against law enforcement's valid
investigative interests (R. v. Laporte, supra, (TAB 14) at para. 1 0).
44. The penis is an incredibly intimate area and comparisons of penile swab
cases to cases involving swabs of exposed areas are futile. As the majority decision from the Alberta Court of Appeal correctly notes, the minority's
comparisons to Backhouse (swabbing of the hand) and Smyth (swabbing of the
elbow, wrist, and earlobe) are distinguishable because of the heightened degree
of intimacy in penile swab searches (R. v. Saeed, supra, Majority Judgment at
para. 54 (TAB 18)).
45. Strip searches are humiliating and degrading, and slightly closer to penile
swab searches. In R. v. Golden, supra (TAB 7) the Court described some of the
reasons why a strip search is humiliating and degrading, and why a heightened expectation of privacy is found in those cases:
Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: "humiliating", "degrading", "demeaning", "upsetting", and "devastating" (citation omitted). Some commentators have gone as far as to describe strip searches as "visual rape" (citation omitted).
Women and minorities in particular may have a real fear of strip searches and may experience such a search as
equivalent to a sexual assault (citation omitted). The
psychological effects of strip searches may also be particularly traumatic for individuals who have previously
been subject to abuse (citation omitted). Routine strip
searches may also be distasteful and difficult for the police
officers conducting them (citation omitted)
(R. v. Golden, supra (TAB 7) at para. 90).
46. As the level of intrusiveness of a search increases, along with considerations of human dignity and bodily integrity, so too increases the
standard of justification required for a search to be reasonable (R. v. Laporte,
supra (TAB 14) at para. 18.
47. Unlike a strip search, penile swabs always require contact with the
detainee's penis, a greater inspection of the detainee's penis, and the taking of samples from the detainee's most intimate body part. The intrusive, humiliating, and embarrassing nature of a penile swab goes beyond a strip search. Therefore, an increased level of justification is needed for penile swabs. The
factors listed in R. v. Golden, supra (TAB 7) are a fair starting point for
reasonableness, and the concerns expressed about how detainees can experience a strip search as a sexual assault are even more pronounced in penile swab cases. Therefore, a penile swab is far too invasive to be considered a strip search incident to arrest. Because of the deeply intrusive nature of a
penile swab, R. v. Stillman, supra, (TAB 22) is the most appropriately
comparable case.
48. As Justices Bielby and Watson found in their majority decision, the
relevant question is "whether the nature of the area from which material is taken is such that the search and resulting seizure may infringe upon the person's bodily dignity in such a way as to constitute the ultimate affront to human dignity"
(R. v. Saeed, supra, Majority Judgment (TAB 18) at para. 55. The sphere of privacy surrounding one's penis is incredibly high and "completely different considerations arise when the search and seizure infringes upon a person's
bodily integrity, which may constitute the ultimate affront to human dignity" (R.
v.
Stillman, supra, (TAB 22) at para. 42).
49. The taking of DNA samples directly from the detainee comes with
50. Furthermore, penile swabs do not necessarily result in solely the
complainant's DNA being taken from a detainee. In R. v. Pruden, 2013 MBCA
107 (TAB 15) a penile swab of the detainee showed DNA of the boyfriend of the complainant, but no DNA of the complainant (at para. 4). This example enunciates the risk in penile swab cases that the police will come into possession of the detainee's DNA while swabbing for the complainant's DNA. As forensic expert Kenneth Hunter testified to at the Appellant's trial:
. . . a known sample would be required to be able to assign a statistic to that profile. However, in the terms of body swabs, that is not always done just because it's not out of the realm of possibility that the male profile would belong to the owner of that -- from where -- from whom the swab was taken from.
(TT, p. 163, II. 6-8)
51. In R. v. Singh, 1996 Canlll 8342 [BCCA] (TAB 20), an individual signed a consent form allowing for saliva and blood samples to be taken from his person after being told that they were being used for cataloguing and comparison against known samples. However, the samples were instead used to match up with semen from several sexual assault cases. The British Columbia Court of Appeal agreed with the Trial Judge's finding that the body sample search in that case was unreasonable (at paras. 27-33).
52. The concern in penile swab cases is similar to the above example
because of the risk that the detainee's own DNA (known to be highly personal and capable of revealing a great deal about an individual) will be seized, and it is important that serious protections are in place when dealing with the taking of this evidence so that the detainee's genetic information is not used for nefarious purposes.
(b) LAW ENFORCEMENT'S INTEREST IN INVESTIGATION
53. Valid law enforcement objectives for a search incident to arrest include the discovery of objects that may be a threat to the police, the detainee or the public, may facilitate escape, or may act as evidence against the accused (R.
v.
Caslake, supra (TAB 4) at para. 14). This Honourable Court has confirmed that the search for evidence applies to the preservation of evidence and the discovery of evidence (Ibid, at para. 19).
54. A broader approach to these objects was recently seen in this Honourable Court's decision in R. v. Fearon, supra (TAB 5). Justice Cromwell, speaking for the majority in that case, found that a prompt search of a detainee's cellphone served an important investigative purpose as it quelled safety concerns of a gun on the street and helped to immediately track down the stolen property (Ibid, at para. 46). Such concerns would previously not have justified an invasive search of the type in Fearon unless exigent circumstances were present. Importantly, though, this broadening of approach brought with it new rules and procedures for officers to follow in conducting this type of search thereby expanding but also delineating officers' exact powers.
55. Safety is not an issue for the police or the public in the case of penile swabs. The sole purpose of a penile swab is for the police to obtain evidence. But can the police initiate penile swabs to preserve evidence, or also to discover evidence?
56. The only cases to find that exigent circumstances are not needed to justify a penile swab in order to preserve evidence are R. v. Harasemow, supra, (TAB 10) from the British Columbia Superior Court and the minority decision of Justice McDonald in the case at hand. In the Appellant's respectful submission, in the absence of a warrant, exigent circumstances are undoubtedly required in penile
swab cases, and there is no valid law enforcement objective that justifies prompt
penile swab searches, similar to what this Honourable Court laid out in Fearon.
57. Whether the police can conduct a penile swab in order to discover
evidence other than that belonging to the Complainant, is a different question that poses two concerns. First, as noted in the previous section, there is a risk that the police may acquire the detainee's DNA when conducting a penile swab for the complainant's DNA. To allow for this evidence to be used as discoverable evidence would be clearly unreasonable as its acquisition was secondary to the justification for the search. Second, to allow the police to search for "discoverable" evidence could lead to the police being allowed to search for DNA evidence when the complainant refuses to consent to providing his or her DNA.
58. In the Appellant's trial, Sexual Assault Nurse Examiner, Donna King,
testified that some complainants in sexual assault cases decline internal exams to obtain their DNA (TT p. 56, II. 17-18). The penile swab that was taken from the Appellant was taken prior to the Complainant's examination and, therefore, the police could not have known whether there would be a comparison sample for investigative purposes. According to the discoverability approach, such a search would still be justified as a valid law enforcement objective because of a police hope that there would be evidence to discover. This cannot be the standard of justification required for such an intrusive and revealing type of search.
(c) THE FINAL BALANCING
59. In cases of penile swabs, the detainee's privacy rights trump any valid law
enforcement objectives. The search incident to arrest doctrine is not without limits, and it important that these limits are respected so as to protect against this police power growing beyond what is justifiable. The penis is the most private of places, and interference with the penis by the police with a penile swab cannot
be justified without a warrant, absent exigent circumstances such as the degeneration or destruction of evidence.
60. Justices Bielby and Watson correctly identified Stillman as governing penile swab cases (R. v. Saeed, Majority Judgment (TAB 18) at para. 55.
61. R. v. Stillman, supra, cannot be distinguished from the case at bar. While in Stillman the seizure was for the detainee's DNA and in the case of penile swabs the seizure was for the complainant's DNA, such a search is no less intrusive. And while the seizure in Stillman was from within the body and in the case of penile swabs the seizure is from the surface, it is equally if not more invasive. Stillman stands for the proposition that warrantless searches cannot be justified when they constitute the ultimate affront to human dignity (at para. 55), and interference with one's penis is the ultimate affront to human dignity. Stillman should not be trivialized to the point of intrusiveness being decided on whether a sample is being taken from the detainee to analyze his DNA or that of the Complainant. What matters is the body part that is being searched and not necessarily what is being searched for. For example, a detainee may consider the plucking of their hair to be less of an affront to their dignity than a body cavity search or strip search (R. v. Laporte, supra (TAB 14) at para. 28.
62. It also cannot not be overlooked that penile swabs involve the touching and taking of bodily samples from the detainee. This is an intrusive act that should not be left to become a matter of routine police policy. Some of the risks in not requiring judicial oversight include police interference with detainee's 10(b) rights like in the case of Ali, police aggressively touching and taking samples without medical aid like Laporte, and the risk of the detainee's DNA being obtained and potentially used for improper purposes.
63. A penile swab is a search and seizure that is of such an intimate and intrusive nature that it requires the most rigorous of safeguards that can only be
obtained with prior judicial oversight. As Justices Bielby and Watson pointed out in their majority decision:
It is difficult to imagine a situation where a
Charter-compliant warrantless search of such a nature as to infringe upon bodily integrity could occur absent consent or a finding of a realistic possibility that the evidence might disappear in the likely time needed to obtain a warrant ... a warrant presumption is the safest course for law.
(R. v. Saeed, supra, Majority Judgment (TAB 18) at para. 61)
3)APPROACH
64. The best way to balance the immense privacy interests in the detainee's
penis against the investigative interests of law enforcement is a categorical prohibition on penile swabs without a warrant.
65. Departures from the Hunter standard, which requires pre-authorization for
a state search and seizure, are exceedingly rare (R. v. Simmons, supra (TAB
19), at para. 47). As stated above, the purpose of section 8 is to prevent unjustified searches before they happen, not to simply decide, after the fact,
whether the search ought to have occurred (Hunter, at para. 43). As this
Honourable Court found in the aforementioned case of Hunter v. Southam:
The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual's right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner. (at paras. 161-162)
66. As Justices LeBel, Abella and Karakatsanis JJ indicated in their dissenting
judgment in R. v. Fearon, supra, the police are not always in the best position to
example, in the case at hand, one of the officers involved in the Appellant's penile swab testified that he would not find a penile swab of his person to be a humiliating experience (TT p. 194, I. 21).
67. The presumption against warrantless searches has value in encouraging best practices for police in situations of search and seizure. Warrant requirements provide the police with statutory safeguards that can aid them in uncertain situations, and when the police are aware that they must obtain pre-authorization for a search from a judicial body, they are in a better position to express their reasoning and objectives. When a warrant is required, the risk that the evidence will be used for nefarious purposes is also reduced.
68. By memorializing the thought process of the police behind the search, the judiciary is also put in a better position to review the search in after the fact litigation. However, even in reviewing an illegal search and seizure, after the fact remedies might not always be enough. As this Honourable Court found in Golden, any after the fact remedy for invasive searches, which are humiliating and degrading, does nothing to erase the experience of being searched (R.
v.
Golden, supra, at para. 89 (TAB 7)). A warrant requirement is a means of preventing unjustified and invasive penile swab searches before they occur. 69. Any law enforcement concerns about the destruction or degradation of DNA evidence can be overcome by the use of a telewarrant or the exigent circumstances doctrine. As the Court explained in Laporte, the availability of a telewarrant under section 487.1(1) of the Criminal Code (RCS 1985, c. C-46) does not require a written affidavit and is simply information sworn by oath on the phone to a judicial body (R. v. Laporte, supra (TAB 14) at para. 21. The telewarrant is a quick and easy process that would often protect against the destruction or degradation concerns of the police.70. Exigent circumstances are another exception to the requirement to obtain
a search warrant which protect valid law enforcement objectives (R. v. Fearon,
supra (TAB 5) at para. 173). Section 487(1)(b) of the Criminal Code allows for police to execute a search without a warrant in a situation where a warrant would otherwise be required if "the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant".
As pointed out in the dissenting judgment in Fearon, exigent circumstances can
extend to the imminent loss or destruction of evidence or an imminent threat to police or public safety (at para. 175). In situations where there is a high degree of risk of loss of the bodily materials, and the available procedure to obtain a search warrant has been followed reasonably, a situation of emergent and exigent
circumstances could potentially justify a warrantless penile swab (R. v. Laporte,
supra (TAB 14) at para. 19.
B. APPLICATION TO THE APPELLANT'S CASE
71. When all of the above criteria are applied to the case at hand it becomes
obvious that the Appellant underwent an unreasonable search and seizure.
72. After spending close to two hours in a dry cell without running water or a
toilet in which to urinate, the Appellant was forced to swab up and down his penis, and the head of his penis, while naked (TT p. 20, II. 31-34). The penile swab took place with the Appellant being observed and scrutinized by two uniformed male police officers who were not medical professionals. Approximately two minutes elapsed during the penile swab (TT p. 184, I. 23). A camera on the wall of the dry cell recorded the penile swab, and the door to the cell was left unlocked, making it a risk that someone could walk in.
73. The penile swab described above was an extreme violation of the
Appellant's privacy. The penile swab was nothing like the surface area swabs
intimate and private area. The humiliating and degrading nature of the penile swab undergone by the Appellant, coupled with the fact that a bodily sample was taken directly from his penis, should have led the police to consider obtaining a search warrant.
7 4. Furthermore, at the time of the penile swab the Sexual Assault Nurse
Examiner had only met with the Complainant for a mere four minutes. There was no way for the police to have known whether she was consenting to a search. Nevertheless, the police conducted an invasive penile swab search not even knowing if they would ever have the corresponding complainant's DNA evidence to make the search worthwhile.
75. Any possible argument that the police had a realistic concern that DNA
evidence might be destroyed or degraded cannot be sustained in this case. The destruction and degradation of DNA evidence seemed to be of little concern throughout the Appellant's arrest and detention. The Appellant was first arrested at 6:05 AM on the day in question, but was later released at around 7:00 AM without explanation {TT p. 191, II. 15-17). He was not arrested again until 8:35 AM. If the destruction or degradation of DNA evidence was of the utmost concern to police throughout the Appellant's arrest and detention, then it is nonsensical to
release him and greatly heighten those risks.
76. There was also a delay of two hours and sixteen minutes from the point
where the officer in charge of the Appellant's initial arrest and detention decided
that a penile swab was necessary, and the actual penile swab itself {TT p. 197, I.
39.). If time was of importance and the police truly believed there was a risk of destruction or degradation of DNA evidence, then it would be expected that they would have conducted the penile swab well before this two hour and sixteen minute delay elapsed.
77. During the aforementioned two hour and sixteen minute delay, little consideration was given by the involved officers to obtaining a general warrant, and no consideration was given to obtaining a telewarrant, even though the officers acknowledged being trained regarding obtaining a telewarrant (TT p. 285, II. 9-11). From the Appellant's initial arrest at 6:05AM to the eventual penile swab at 10:26 AM, there was ample time for the police to get a general warrant or at least a telewarrant. Instead, the police never even bothered.
78. The officer testified that in his view there was no time to get a warrant as it
would not be respectful or caring to the Appellant to undergo what he guessed would be a three hour process to obtain a general warrant while the Appellant was handcuffed to a pipe in the dry cell (TT p. 185, II. 19-23). However, if the police truly thought that this was an affront to the Appellant, they would not have left him there for over two hours prior to conducting their warrantless search. During this time they could have at best obtained a warrant, or at worst performed the penile swab quickly so as to get the Appellant out of what the officer testified was an embarrassing position. One breach of the Appellant's dignity cannot justify another, and this officer's proposition seems insincere at best.
79. All of the aforementioned factors led the Trial Judge to find that exigent
circumstances did not exist in the Appellant's case (TT p. 288, I. 1 ). The Trial Judge found that the police failed to articulate any concern about degradation that would justify a warrantless search, and this is a factual finding that is entitled
to deference (R. v. Grant, [2009] SCC 32 (TAB 8) at para. 129.
C. THE EXCLUSION OF THE EVIDENCE
80. When a Charter breach is established, the three-part analysis from Grant
24(2). The three areas that the Court must examine in the Grant analysis were
properly described in the Fearon dissent:
(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);
(2) the impact of the breach on the Charter-protected interests of the accused
(admission may send the message that individual rights count for little); (3) society's interest in the adjudication of the case on its merits (at para.
185).
81. In her 24(2) analysis, the Learned Trial Judge found this breach to be
serious as it was a violation that struck at the "very core value of privacy, an accused's privacy with respect to his genitals, and his right to not be exposed" (TT p. 290, II. 18-20). She also found that the "experience of an accused swabbing his penis in the presence of others would be a humiliating experience" (TT p. 290, II. 29-30). However, because the Trial Judge found that the officers had not acted in bad faith and because of society's interest in the adjudication of
sexual assault cases, she admitted the evidence in spite of the Charter breach.
82. At the Alberta Court of Appeal, the minority decision disagreed with the
Trial Judge's finding in part one of the Grant analysis. Justice McDonald found
that if there was a breach it was at the lower end of the spectrum. The majority
decision also disagreed with the Trial Judge's finding in part one of the Grant
analysis but for a different reason. Justices Bielby and Watson characterized the nature of the breach in this case as the failure of the police to obtain a telewarrant. In categorizing the seriousness of the breach, the majority found that the magnitude of the breach must be considered in light of the likelihood that, had a telewarrant been sought, it would have been granted.
83. The Appellant disagrees with all the above findings and respectfully
submits that the evidence, which was unconstitutionally obtained from the penile swab, ought to have been excluded.
1) SERIOUSNESS OF THE CHARTER-INFRINGING STATE CONDUCT 84. This stage of the Grant analysis looks at several factors, such as the intrusiveness of the search and the individual's expectation of privacy in the area searched (R. v. Cas/ake, supra (TAB 4) at para. 34. The more serious the offending conduct, the more likely the evidence will be excluded.
85. Whether or not a breach is serious is a question that looks at the broad impact on the administration of justice (R. v. Grant, supra (TAB 8) at para. 70. This broad impact is to be judged by "a reasonable person, informed of all relevant circumstances and values underlying the Charter' (Ibid, at para. 68). It is the Appellant's respectful submission that if the Canadian public were to be told that a warrant is not needed for the police to perform a penile swab they would be outraged, and admission of the penile swab evidence would bring the administration of justice into disrepute.
86. It is impossible to comprehend a body part more intimately private than one's penis, and a warrantless search of one's penis is a serious breach. The Appellant respectfully disagrees with the Alberta Court of Appeal's finding at this stage of the analysis that the seriousness of the breach should be judged on the basis that if the police had sought a telewarrant, it would have been granted. This ends-justifies-the-means type of reasoning effectively contradicts the established limits on police search powers and ignores the fact that the police in this case didn't even give the option serious consideration.
87. There was also some debate at trial as to whether a warrant was available in the Criminal Code for a penile swab search. Warrant provisions in the Criminal Code are meant to be used as a shield and not a sword, and the lack of a warrant provision in a certain capacity is not an invitation to the police to search
without warrant in that capacity. As this Honourable Court made note in R.
v.
Feeney, [1997] 2 S.C.R. 13 (TAB 6):
If the Code currently fails to provide specifically for a
warrant containing such prior authorization, such a provision should be read in. While the absence of such a provision could have a profound influence on the common law power of arrest, its absence cannot defeat a constitutional right of the individual.
(at para. 48)
88. The police should have obtained a warrant in the Appellant's case, and
the fact that they did not is serious. However, if a warrant provision was truly not
available in the Criminal Code then the breach is even more serious. The latter
case would lead to the police usurping the role of Parliament and the Courts, and deciding when and what to search on their own without proper guidance.
2) IMPACT ON THE CHARTER-PROTECTED INTERESTS OF THE
ACCUSED
89. The Appellant was humiliated, his personal dignity was affronted, and he
was forced to take a swab from his most intimate area while under the supervision and scrutiny of the police. This was an experience that strikes at the core of the privacy interests that section 8 is meant to protect. The demeaning nature of this search, and the significant invasion of privacy are undeniable, and the illegal penile swab had a serious impact on the Appellant's section 8 rights.
90. In addition, because police intended to conduct this illegal search, the
Appellant was left handcuffed to a metal pipe in a waterless, toiletless cell for two hours. This type of detention is clearly more degrading and uncomfortable than the detention he would have suffered in ordinary police custody and so his interests were doubly infringed.
3) SOCIETY'S INTEREST IN ADJUDICATION ON THE MERITS
91. The nature of the DNA evidence obtained through the penile swab is
reliable. However, the DNA evidence was not the only evidence available to the Crown on which to establish a conviction.
92. Unlike the 2007 penile swab case of R. v. Laporte, supra, (TAB 14) the
complainant in this case was not unable to testify at trial (Ibid, at para. 30). The
complainant was available and she did testify at trial. There were also two other eyewitnesses, one that testified and one that did not, as well as circumstantial evidence.
93. Sexual assault is a very serious crime, but the truth-seeking function of the
criminal trial process would be better served by the exclusion of the evidence from the penile swab than by its admission.
D. CONCLUDING REMARKS
94. In the Appellant's respectful submission the evidence obtained from the
penile swab should have been excluded. Penile swabs involve an area that is far too intimate to forgo a warrant requirement except in exigent circumstances. In the case at hand, there were no exigent circumstances. There was simply a warrantless search of the Appellant's most private area that strikes at the very core value of privacy.
95. Unwarranted searches of such a magnitude undermine the public's
confidence that the police have a concern for keeping their most private parts private, and that the state is responsible for protecting their dignity and privacy. To admit the evidence obtained from this Charter-infringing penile swab would bring the administration of justice into disrepute.
PART IV: SUBMISSIONS CONCERNING COSTS
96. The Appellant has no submissions on costs.
PART V: NATURE OF THE ORDER SOUGHT
97. For the reasons aforesaid, the Appellant respectfully requests that the
conviction entered by Madam Justice Sulyma and affirmed by the Court of Appeal be overturned and a new trial ordered.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 141h day of August,
2015, in the City of Edmonton, in the Province of Alberta.
Counsel for the Appellant, Ali Hassan Saeed
PART VI: TABLE OF AUTHORITIES
Tab No. Authoritv Para.
1. R. v. Ali, 2014, ONSC 6609 37,62 2. R. v. Arney, 2013, ONSC 5108 38,39 3. R. v. Backhouse, 2005 195 OAC 80 33,44, 73 4. R. v. Caslake, [1998] 1 SCR 51 27,53,84 5. R. v. Fearon, [2014] 3 S.C.R. 621 26, 54, 66, 70,80 6. R. v. Feeney, [1997] 2 S.C.R. 13 87 7. R. v. Golden, 2001
sec 83
30-32, 36, 42, 45, 47, 68 8. R. v. Grant, [2009] SCC 32 79, 80, 82, 84,85 9. R. v. Greffe, [1990] 1 S.C.R. 755 31 10. R. v. Harasemow, 2014 BCSC 2287 35,56 11. R. v. Hodgson, 2008 OJ No. 4748 3612. Hunter v. Southam [1984] S.C.J. No. 36 19,65
13. R. v. Johal, 2015 BCCA 246 31 14. R. v. Laporte, 2012 MBQB 227 23, 25, 40, 41' 43, 46, 61, 62, 69, 70,92 15. R. v. Pruden, 2013 MBCA 107 50 16. R. v. Pun, 2012 ONSC 5305 39 17. R. v. Robles, 2008 BCSC 133 33
18. R. v. Saeed, 2014 ABCA 238 4, 10, 12, 24, 44, 48, 63
19. R. v. Simmons, [1988] S.C.J. No. 86 20,65 20. R. v. Singh, 1996 CanLII 8342 [BCCA] 51
21. R. v. Smyth, 2006 OJ No. 5527 33, 36, 44, 73
22. R. v. Stillman, 1997 1 SCR 607 29, 47, 48,
PART VII: STATUTORY PROVISIONS
Criminal Code, R.S.C. 1985, c. C-46, ss. 487,487.1 (photocopy attached) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule 8 to the Canada Act 1982 (UK), 1982, c 11, ss. 8, 24
