R. v. Brosseau (F.D.), 2001 ABPC 220

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 22, 2001
• Citations: 2001 ABPC 220;(2001), 305 A.R. 1 (ProvCt)

R. v. Brosseau (F.D.) (2001), 305 A.R. 1 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. DE.086

Her Majesty The Queen v. Fergus Donald Brosseau

(06938989; 2001 ABPC 220)

Indexed As: R. v. Brosseau (F.D.)

Alberta Provincial Court

Allen, P.C.J.

November 22, 2001.

Summary:

The accused was charged with bank robbery. Police found potential DNA evidence on a balaclava. To compare DNA, a police officer obtained a DNA warrant and immediately thereafter went to where the accused was being held in custody. The officer explained the warrant and informed the accused of his Charter rights. Over the next few hours the accused consulted with counsel who requested a copy of the information and warrant. A stalemate developed when the police refused to provide the documents and the accused refused to provide a blood sample. Finally, the police forcibly took the sample. The accused sought to exclude the DNA evidence, alleging an unreasonable seizure contrary to s. 8 of the Charter and a violation of his right to counsel contrary to s. 10(b).

The Alberta Provincial Court, on a voir dire, ruled there was no infringement of ss. 8 or 10(b) of the Charter and therefore the evidence regarding the DNA samples ought not to be excluded. The court opined that exclusion would not have been warranted even if the accused's rights were violated.

Civil Rights - Topic 1404

Security of the person - Law enforcement - Blood tests - The accused was charged with bank robbery - Police found potential DNA evidence on a balaclava - To compare DNA, a police officer obtained a DNA warrant and immediately thereafter went to where the accused was being held in custody - Over the next few hours the accused consulted with counsel who requested a copy of the information and warrant - A stalemate developed when the police refused to provide the documents and the accused refused to provide a blood sample - Finally, the police forcibly took the sample - The accused sought to exclude the DNA evidence, alleging an unreasonable seizure contrary to s. 8 of the Charter and a violation of his right to counsel contrary to s. 10(b) - The Alberta Provincial Court held that neither s. 8 nor 10(b) was infringed, and in any event, the evidence regarding the DNA samples ought not to be excluded - See paragraphs 1 to 161.

Civil Rights - Topic 1404.2

Security of the person - Law enforcement - Hair and bodily fluid samples (incl. saliva) - [See Civil Rights - Topic 1404 ].

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - The accused was charged with bank robbery - Police found potential DNA evidence on a balaclava - To compare DNA, a police officer obtained a DNA warrant and immediately thereafter went to where the accused was being held in custody - The officer explained the warrant and informed the accused of his Charter rights - Over the next few hours the accused consulted with counsel who requested a copy of the information and warrant - A stalemate developed when the police refused to provide the documents and the accused refused to provide a blood sample - Finally, the police forcibly took the sample - The accused argued that his right to counsel was violated - The Alberta Provincial Court held that there was no violation of s. 10(b) of the Charter where there was no obligation to provide counsel with the information or the warrant - Further, even if there was such an obligation, the court would not have excluded the DNA sample - See paragraphs 46 to 88 and 135 to 161.

Civil Rights - Topic 4605.1

Right to counsel - Denial of - Effect on reasonableness of search - The Alberta Provincial Court stated that "a careful perusal of the law reveals that general rule set out by Lamer J. in R. v. Debot, ... is still the law, i.e., that it will only be in exceptional circumstances that a denial of right to counsel will trigger a violation of s. 8. The Supreme Court in subsequent decisions have explained the nature of the exceptional circumstances where a denial to the right to counsel may trigger a s. 8 violation. These include circumstances where the accused's consent is the basis for the seizure, or where self-incriminatory evidence such as conscriptive bodily samples are taken from the accused. It would seem readily apparent that the conscriptive nature of a DNA sample is at least equal in importance to a conscripted breath sample that would accord an accused his s. 10(b) Charter rights. Therefore, where an accused is being compelled to give evidence to the police of such a conscriptive nature, it is only appropriate that he or she should be entitled to s. 10(b) Charter rights" - See paragraphs 44 and 45.

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators - The Alberta Provincial Court reviewed the duties imposed on police by s. 10(b) of the Charter - See paragraphs 54 to 60.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1404 ].

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - [See Civil Rights - Topic 4605.1 ].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The accused was charged with bank robbery - The accused applied under s. 24 of the Charter to exclude evidence regarding a blood sample taken for DNA comparison purposes, alleging a violation of s. 8 of the Charter - A voir dire was held to determine the issue - The Alberta Provincial Court ruled that counsel for the accused was required to lead evidence in support of the application to exclude - The court noted that the onus was upon the accused to persuade the court that his Charter rights were infringed - The court reviewed the procedure on this type of voir dire - See paragraphs 18 to 35.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The Alberta Provincial Court stated that "Charter issues cannot be determined in a vacuum. The factual basis and legal basis for establishing a Charter breach is upon the applicant. The applicant must satisfy the court of the infringement on the balance of probabilities. The manner in which that is established is the responsibility of counsel and is subject to the approval of the sitting judge; the procedure to establish Charter violations is to be flexible and adopted to the circumstances of the individual case. Although the procedure is flexible, some practices have been established in Alberta that should be generally followed. In most instances a Charter application should be preceded by written notice to the court, and counsel for the Crown. The notice must contain sufficient detail to enable the Crown to examine or call witnesses, and prepare its legal submissions; the detail should be sufficient to enable the court to carry out its constitutional duty. If the defence fails to file written notice, the court could refuse to entertain the application ... The notice requirement is especially apt where the disclosure given to the defence established the possible basis for a Charter application and the defence has identified that issue. Trial by ambush in Charter violations is not seemly or necessary". - See paragraph 22.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The Alberta Provincial Court stated that if a voir dire relating to a Charter infringement was warranted, "the obligation to call evidence first is upon the person saddled with the burden of persuasion; in most instances, that burden is upon the accused applicant. Consequently, it is appropriate for the defence, in those cases where the burden of persuasion is upon them to call evidence to provide a factual basis for their legal argument. This is the fairest, most effective, and most efficient procedure because the applicant is aware of the factual basis for the legal challenge and should be able to marshal the evidence more effectively and efficiently toward that end. The Crown, having heard the evidence of the defence and having cross-examined the witnesses, may feel no need to call any evidence on the voir dire. To have the Crown lead evidence in anticipation of rebutting the possible legal challenges by the defence would be cumbersome and unduly lengthen proceedings." - See paragraph 24.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The Alberta Provincial Court held that on a voir dire respecting infringement of Charter rights, "... where the accused bears the burden of persuasion it is appropriate for the accused to have the initial burden of presenting evidence. This may involve the calling of police officers who were involved in the alleged Charter infringements. In many cases, to ensure fairness, the defence may be entitled to cross-examine those type of police witnesses with the leave of the court when leading their evidence. This represents a relaxation of the rules relating to the examination of witnesses but is necessary in order to enable the accused applicant to have full answer and defence. Allowing the defence to cross-examine will not necessarily evolve into a fishing expedition because the court can confine that cross-examination to matters relevant to the Charter application. Other witnesses called by the defence should be examined by direct examination; the Crown would be entitled to cross-examine in the normal manner. All witnesses called by the Crown should be examined in chief by Crown counsel; the defence can cross-examine such witnesses ..." - See paragraph 31.

Civil Rights - Topic 8591

Canadian Charter of Rights and Freedoms - Practice - Onus or burden of proof - [See first Civil Rights - Topic 8586 ].

Criminal Law - Topic 3072

Special powers - Forensic DNA analysis - Validity of warrant - The accused was charged with bank robbery - The police obtained a DNA warrant which had to be forcibly executed - The accused alleged a violation of s. 8 of the Charter, arguing that the warrant was invalid because it was not in the form prescribed by the Criminal Code - The Alberta Provincial Court agreed that the warrant did not strictly comply with Form 5.02 set out in the Code - The court commented that the wisest course of action would be for police to follow the prescribed forms - However, the warrant was valid where the deficiencies in the form were not calculated to mislead, they did not affect the substance, the information to obtain the search warrant covered the deficiencies in detail and s. 33 of the Interpretation Act could be used to support the validity of the warrant - The court opined that even if it was wrong in this conclusion, it would not have excluded the DNA evidence under s. 24(2) of the Charter - See paragraphs 112 to 128, and 135 to 161.

Criminal Law - Topic 3072

Special powers - Forensic DNA analysis - Validity of warrant - The accused was charged with bank robbery - The police obtained a DNA warrant which had to be forcibly executed - The accused alleged a violation of s. 8 of the Charter, arguing that the warrant was invalid because it did not set out the offence or the circumstances concerning that offence - The offence was described in the warrant as a "section 344(b) robbery" - The Alberta Provincial Court held that the lack of detail in this warrant in its proper circumstantial context did not amount to an infringement of the accused's s. 8 Charter rights - The accused could not have been confused about the offence where he was in custody for this particular robbery and he had been charged with that offence and had selected a trial date prior to the DNA authorization - See paragraphs 112 to 128.

Criminal Law - Topic 3073

Special powers - Forensic DNA analysis - Contents of information or application for issue of - The accused was charged with bank robbery - Police found potential DNA evidence on a balaclava - To compare DNA, a police officer obtained a DNA warrant which had to be forcibly executed - The accused alleged a violation of s. 8 of the Charter, arguing that the statutory prerequisites for issuing the DNA order set out in s. 487.05 of the Criminal Code had not been fulfilled and the warrant should not have been issued - The Alberta Provincial Court reviewed the alleged deficiencies in the information and held that the authorizing judge in all the circumstances could have issued the DNA warrant to seize bodily substances from the accused - See paragraphs 98 to 103.

Criminal Law - Topic 3074

Special powers - Forensic DNA analysis - Contents of warrant - [See both Criminal Law - Topic 3072 ].

Criminal Law - Topic 3081.2

Special powers - Forensic DNA analysis - Appeals, scope of review (incl. court's powers on appeal) - The Alberta Provincial Court discussed the standard of review applicable when the court is asked to review the issuance of a DNA warrant under s. 487.05 of the Criminal Code - See paragraphs 93 to 97.

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevancy - Voir dire - General - [See all Civil Rights - Topic 8586 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122; 33 C.C.C.(3d) 1; 38 D.L.R.(4th) 508, refd to. [para. 19].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97, refd to. [para. 21].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 77 C.C.C.(3d) 385 (C.A.), refd to. [para. 22].

R. v. Dietrich (1970), 1 C.C.C.(2d) 49 (Ont. C.A.), refd to. [para. 23].

R. v. Hamill (1984), 14 C.C.C.(3d) 338; 13 D.L.R.(4th) 275; 41 C.R.(3d) 123 (B.C.C.A.), refd to. [para. 23].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289 (C.A.), refd to. [para. 23].

R. v. Feldman (1994), 42 B.C.A.C. 31; 67 W.A.C. 31; 91 C.C.C.(3d) 256 (C.A.), affd. [1994] 3 S.C.R. 832; 178 N.R. 140; 53 B.C.A.C. 158; 87 W.A.C. 158; 93 C.C.C.(3d) 575, refd to. [paras. 23, 25].

R. v. Vukelich (M.) (1996), 78 B.C.A.C. 113; 128 W.A.C. 113; 108 C.C.C.(3d) 193 (C.A.), refd to. [para. 23].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321, refd to. [para. 23].

R. v. Habbib, [1997] A.J. No. 175 (Prov. Ct.), refd to. [para. 25].

R. v. Morin (J.) (2000), 263 A.R. 171 (Q.B.), refd to. [para. 25].

R. v. Morin (J.) (2001), 286 A.R. 109; 253 W.A.C. 109 (C.A.), refd to. [para. 30].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 37].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 92 C.C.C.(3d) 404; 33 C.R.(4th) 147; 24 C.R.R.(2d) 51; 119 D.L.R.(4th) 74, refd to. [para. 39].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289; 33 C.R.(4th) 1; 6 M.V.R.(3d) 1; 118 D.L.R.(4th) 83, refd to. [para. 41].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353; 118 D.L.R.(4th) 154, refd to. [para. 41].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385, refd to. [para. 42].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321, refd to. [para. 43].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 58 C.R.(3d) 97; 34 C.C.C.(3d) 385; 41 D.L.R.(4th) 301; 38 C.R.R. 37, refd to. [para. 47].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93; 37 C.C.C.(3d) 565; 45 D.L.R.(4th) 445; 60 C.R.(3d) 59; 32 C.R.R. 381; 2 M.V.R.(2d) 289, refd to. [para. 53].

R. v. Smith (J.L.), [1989] 2 S.C.R. 368; 99 N.R. 372; 50 C.C.C.(3d) 308, refd to. [para. 53].

R. v. Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 3; 46 C.C.C.(3d) 129, refd to. [para. 53].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 70 C.R.(3d) 97; 50 C.C.C.(3d) 1; 47 C.R.R. 171, refd to. [para. 53].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201; 116 D.L.R.(4th) 416; 92 C.C.C.(3d) 11; 32 C.R.(4th) 1; 23 C.R.R.(2d) 6, refd to. [para. 55].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 67 C.R.(3d) 87; [1989] 1 W.W.R. 385; 46 C.C.C.(3d) 479; 56 D.L.R.(4th) 673; 37 C.R.R. 335, refd to. [para. 58].

R. v. Taylor (1990), 95 N.S.R.(2d) 282; 251 A.P.R. 282; 54 C.C.C.(3d) 152 (C.A.), refd to. [para. 66].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97; 115 C.C.C.(3d) 52 (C.A.), refd to. [para. 59].

R. v. Luong (G.V.) (2000), 271 A.R. 368 234 W.A.C. 368; 149 C.C.C.(3d) 571; 6 M.V.R.(4th) 183 (C.A.), refd to. [para. 60].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194; 9 C.C.C.(3d) 97, refd to. [para. 68].

R. v. Church of Scientology of Toronto and Zaharia (1987), 18 O.A.C. 321; 31 C.C.C.(3d) 449 (C.A.), refd to. [para. 75].

S.F. v. Canada (Attorney General) et al. (1997), 47 O.T.C. 321; 120 C.C.C.(3d) 260 (Gen. Div.), refd to. [para. 75].

MacIntyre v. Nova Scotia (Attorney General) and Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 65 C.C.C.(2d) 129; 132 D.L.R.(3d) 385, refd to. [para. 76].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 86].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 87].

R. v. Grant (1999), 117 O.A.C. 345; 132 C.C.C.(3d) 531 (C.A.), refd to. [para. 87].

R. v. Dhillon (G.S.) (2001), 157 B.C.A.C. 124; 256 W.A.C. 124 (C.A.), refd to. [para. 88].

R. v. Fisher (L.E.) (1999), 186 Sask.R. 113 (Q.B.), refd to. [para. 88].

R. v. Jobb (L.G.) (1997), 154 Sask.R. 163 (Q.B.), refd to. [para. 88].

R. v. Hummel, [2001] Y.J. No. 8 (S.C.), refd to. [para. 96].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 149 C.C.C.(3d) 449; 193 D.L.R.(4th) 449; 38 C.R.(5th) 307, refd to. [para. 89].

R. v. Sanchez (1994), 93 C.C.C.(3d) 357 (Ont. Gen. Div.), refd to. [para. 95].

R. v. Knox (W.), [1996] 3 S.C.R. 199; 202 N.R. 228; 139 D.L.R.(4th) 1, refd to. [para. 109].

R. v. Hamilton (1892), 2 C.C.C. 390 (Man. C.A.), refd to. [para. 122].

Hitchie Ex Parte, Re (1906), 11 C.C.C. 85 (N.S.T.D.), refd to. [para. 123].

R. v. Crawford (1981), 23 C.R.(3d) 83 (B.C.S.C.), refd to. [para. 124].

R. v. Dean (1985), 17 C.C.C.(3d) 410 (Alta. Q.B.), refd to. [para. 125].

R. v. Goodine (1992), 112 N.S.R.(2d) 1; 307 A.P.R. 1; 71 C.C.C.(3d) 146 (C.A.), refd to. [para. 126].

Alder and Entrepreneur Investments Ltd. et al. v. Alberta (Attorney General), Thurgood and Smilgis (1977), 5 A.R. 473; 37 C.C.C.(2d) 234 (T.D.), refd to. [para. 129].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61; 45 C.C.C.(3d) 46, refd to. [para. 139].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207, refd to. [para. 154].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 158].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1, refd to. [para. 158].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 10 [para. 2]; sect. 24(2) [para. 137].

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.05(1) [para. 99]; sect. 841(1) [para. 118].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 33(1) [para. 120].

Counsel:

L. Tchir and C. Krieger, for the Crown;

P. Royal, Q.C., for the accused.

This matter was heard before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following decision on November 22, 2001.