R. v. Karas (L.F.), (2004) 382 A.R. 136 (QB)

• Judge: Marceau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 15, 2004
• Citations: (2004), 382 A.R. 136 (QB);2004 ABQB 197

R. v. Karas (L.F.) (2004), 382 A.R. 136 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. NO.188

Her Majesty The Queen v. Landon Frederick Karas

(021229216Q1; 2004 ABQB 197)

Indexed As: R. v. Karas (L.F.)

Alberta Court of Queen's Bench

Judicial District of St. Paul

Marceau, J.

March 15, 2004.

Summary:

The accused was charged with first degree murder. A voir dire was held to determine the admissibility of two blood samples taken from the accused. The first sample was taken from the accused after he was requested to attend at the police station to provide a voluntary sample, as others had done, to eliminate him as the murderer. The second sample was taken pursuant to a DNA warrant. The accused challenged the admissibility of the DNA testing results, submitting that the first sample was taken without his consent in violation of his ss. 7, 8 and 10 Charter rights.

The Alberta Court of Queen's Bench held that both samples were admissible. The first sample was proved to have been given with the accused's informed consent. The first sample matched the sample found on the victim. Since the first sample was voluntary and the accused demanded a second sample on the ground that the first sample was wrong, there was no basis to challenge the validity of the DNA warrant.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused was one of many "persons of interest" in the investigation of a murder - Seminal fluid was found on the victim's body - The accused was requested by a police telephone call to come to the police station, at a time convenient to him, to answer some questions respecting the investigation - The accused went to the station and voluntarily consented to giving a blood sample for DNA analysis - The whole process took 38 minutes and the accused was free to go - The accused was advised that he was not required to consent to giving a sample, but that if he did not he would remain subject to investigation - The accused was not told that he would be arrested if he failed to give a sample - The Alberta Court of Queen's Bench held that the accused was not detained for purposes of the Charter of Rights and Freedoms - See paragraphs 87 to 99.

Criminal Law - Topic 3071.1

Special powers - Forensic DNA analysis - Voluntary DNA sample - Informed consent - Seminal fluid was found on a murder victim - Police had a small group of persons who were "persons of interest", from which they sought voluntary blood samples for DNA analysis - The 21 year old accused, who had contact with the victim in the past, voluntarily went to the police station for questioning and provided a blood sample - The whole process took 38 minutes - The accused was told that he need not consent to a sample and that if he did not commit the murder the sample would eliminate him from further investigation - If he did not consent, the accused would continue to be a subject of the investigation - The accused testified that he believed that if he did not consent, he would be arrested as a suspect and a sample would be taken by force - The accused sought exclusion of the DNA analysis results on the ground that police did not obtain his informed consent - The Alberta Court of Queen's Bench, in declining to exclude the evidence, held that the investigating officer said nothing to reasonably support the accused's belief - Nothing the officer did went beyond permissible police persuasion (no police oppression or trickery vitiating consent) - The accused gave informed consent - The accused's s. 10(b) Charter right to counsel was not denied where he was not detained when he gave the blood sample - See paragraphs 28 to 86.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - [See Criminal Law - Topic 3071.1 ].

Cases Noticed:

R. v. Fash (D.M.) (2000), 244 A.R. 146; 209 W.A.C. 146; 1999 ABCA 267, refd to. [para. 27].

R. v. S.A.B. et al. (2003), 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 231 D.L.R.(4th) 602; 2003 SCC 60, refd to. [para. 29].

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, refd to. [para. 30].

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, refd to. [para. 31].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 32].

R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, refd to. [para. 33].

R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 14, refd to. [para. 33].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 35].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 35].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 38].

R. v. Tessier (C.S.), [2002] 1 S.C.R. 144; 289 N.R. 203; 250 N.B.R.(2d) 203; 650 A.P.R. 203, refd to. [para. 50].

R. v. Hynes (D.W.), [2001] 3 S.C.R. 623; 278 N.R. 299; 208 Nfld. & P.E.I.R. 181; 624 A.P.R. 181, refd to. [para. 51].

R. v. D.J.M. (2003), 343 A.R. 11; 2003 ABQB 146, refd to. [para. 55].

R. v. Minde (M.R.) (2003), 343 A.R. 371; 179 C.C.C.(3d) 188 (Q.B.), refd to. [para. 57].

R. v. Hoilett (C.) (1999), 121 O.A.C. 391; 136 C.C.C.(3d) 449 (C.A.), refd to. [para. 60].

R. v. Birt (1984), 4 C.M.A.R. 357 (Ct. Mart. App. Ct.), refd to. [para. 67].

R. v. S.A.B. et al. (2001), 293 A.R. 1; 257 W.A.C. 1 (C.A.), refd to. [para. 74].

R. v. Love (R.J.) (1995), 174 A.R. 360; 102 W.A.C. 360; 102 C.C.C.(3d) 393 (C.A.), refd to. [para. 77].

R. v. Therens (1985), 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 88].

R. v. J.C., [2002] O.T.C. 968 (Sup. Ct.), refd to. [para. 89].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.05 [para. 106].

Counsel:

Charles P. Cobban (Crown Prosecutors' Office), for the Crown;

Felicity C. Hunter (Abbey Hunter), for the accused.

This application was heard on February 9-13 and 17-18, 2004, before Marceau, J., of the Alberta Court of Queen's Bench, Judicial Centre of St. Paul, who delivered the following judgment on March 15, 2004.