R. v. Stillman, [1997] 1 S.C.R. 607 (1997)

R. v. Stillman, [1997] 1 S.C.R. 607

William Wayne Dale Stillman Appellant v.

Her Majesty The Queen Respondent and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General of Nova Scotia,

the Attorney General of British Columbia,

the Attorney General for Saskatchewan,

the Attorney General for Alberta,

the Law Union of Ontario,

the Canadian Civil Liberties Association,

the Criminal Lawyers' Association (Ontario),

and the Association québécoise des avocats et avocates de la défense Interveners

Indexed as: R. v. Stillman

File No.: 24631.

*1996: January 26.

*Present: Lamer C.J. and L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

**Rehearing: 1996: November 7; 1997: March 20.

**Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for new brunswick

Criminal law -- Power of search incidental to arrest -- Scope of power -- Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Whether common law power incidental to arrest can be extended to permit seizure of bodily samples and impressions.

Constitutional law -- Charter of Rights -- Search and seizure -- Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Whether accused's right against unreasonable search and seizure infringed -- Canadian Charter of Rights and Freedoms, s. 8.

Constitutional law -- Charter of Rights -- Search and seizure -- Accused in custody not consenting to taking of any bodily samples -- Police seizing from wastebasket in police station discarded tissue used by accused to blow his nose -- Whether accused's right against unreasonable search and seizure infringed -- Canadian Charter of Rights and Freedoms, s. 8.

Constitutional law -- Charter of Rights -- Security of person -- Fundamental justice -- Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Whether accused's right to security of person infringed in manner not consistent with principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7.

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Police also seizing from wastebasket in police station discarded tissue used by accused to blow his nose -- Whether evidence obtained in violation of accused's Charter rights -- If so, whether evidence should be excluded -- Canadian Charter of Rights and Freedoms, s. 24(2).

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Proper approach to s. 24(2) of Canadian Charter of Rights and Freedoms when evidence affects fairness of trial -- Whether such evidence must be excluded regardless of other factors.

The accused, who was 17 years old at the time, was arrested in 1991 for the brutal murder of a teenage girl. He was the last person seen with the victim on the night of the crime. He arrived at his home around midnight, cold, shaken and wet from the upper thighs down. He was cut above one eye, and had mud and grass on his pants. He explained that he had been in a fight with five Indians but this explanation, as well as his account of where he had last seen the victim, varied over time. The victim died from wounds to the head. Semen was found in her vagina and a human bite mark had been left on her abdomen. At the police station, the accused's lawyers informed the police by letter that the accused was not consenting to provide any bodily samples, including hair and teeth imprints, or to give any statements. Once the lawyers left, police officers took, under threat of force, scalp hair samples from the accused and he was made to pull some of his own pubic hair. Plasticine teeth impressions were also taken. A police officer then interviewed the accused for an hour in an attempt to obtain a statement. The accused sobbed throughout the interview and, after being permitted to call his lawyer, he went to the washroom escorted by an officer where he used a tissue to blow his nose. He threw the tissue in the wastebasket. The tissue containing mucous was seized by the officer and used for DNA testing. The accused was subsequently released but was arrested again several months later. At that time, a dentist took new impressions of the accused's teeth without his consent in a procedure lasting two hours. More hair was taken from the accused, as well as a saliva sample and buccal swabs.

Following a voir dire held to determine the admissibility of certain evidence, the trial judge found that the hair samples, buccal swabs and teeth impressions had been obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms but concluded that the evidence w...

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