R. v. S.A.B. et al., (2003) 339 A.R. 1 (SCC)

JudgeMcLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
CourtSupreme Court (Canada)
Case DateMarch 19, 2003
JurisdictionCanada (Federal)
Citations(2003), 339 A.R. 1 (SCC);2003 SCC 60

R. v. S.A.B. (2003), 339 A.R. 1 (SCC);

    312 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2003] A.R. TBEd. OC.084

S.A.B. (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec and Attorney General of New Brunswick (interveners)

(28862; 2003 SCC 60; 2003 CSC 60)

Indexed As: R. v. S.A.B. et al.

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

October 31, 2003.

Summary:

The police obtained a DNA warrant au­thorizing the seizure of a blood sample from the accused. The accused was charged with, inter alia, sexual assault. The accused applied for a declaration that the DNA warrant provisions of the Criminal Code (ss. 487.04 to 487.09) violated ss. 7 and 8 of the Char­ter. The trial judge held that the provi­sions did not violate s. 8 of the Charter. He held that the provisions did violate s. 7, but were saved by s. 1 of the Charter. The trial judge convicted the accused. The accused appealed, asserting the unconstitutionality of the DNA warrant provisions and the lack of a factual foundation for opinion evidence offered by a DNA expert at trial.

The Alberta Court of Appeal, Berger, J.A., dissenting, in a decision reported at 293 A.R. 1; 257 W.A.C. 1, dismissed the appeal. The accused appealed.

The Supreme Court of Canada dismissed the appeal. The court held that the DNA warrant provisions conformed with the con­stitutional requirements of a reasonable search and seizure under s. 8 of the Charter. There was no need to engage in a separate s. 7 analysis. The trial judge did not err in accepting the expert evidence.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - Sections 487.04 to 487.09 of the Criminal Code authorized the issuance of search warrants for seizing bodily substances for forensic DNA testing - The Supreme Court of Canada stated that "searches and seizures pursuant to a DNA warrant engage the principle against self-incrimination. However, the principles of fundamental justice that are alleged to be implicated by a DNA search and seiz­ure, including the principle against self-incrimi­nation, are more appropriately considered under a s. 8 analysis. ... it is proper to consider an accused's right not to incrimi­nate him or herself in determining whether a DNA warrant complies with s. 8 of the Charter." - See paragraph 35.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - The Supreme Court of Canada held that the DNA war­rant provi­sions of the Criminal Code (ss. 487.04 to 487.09) conformed with s. 8 of the Charter (reasonable search and seizure) - The provisions struck an appropriate balance between the public interest in effective criminal law enforcement for serious of­fences and individuals' rights to control the release of personal information and to dignity and physical integrity - The DNA warrant scheme, inter alia, provided a system of prior authorization - Warrants were restricted to designated offences - A judge had to be satisfied that a warrant was in the best interests of justice - Inter­ference with physical integrity under the scheme was relatively modest and the scheme limited intrusions into informational priv­acy - The state's interest in the DNA warrant scheme was signifi­cant - DNA evidence was a valuable identification tool that could bring offenders to justice and avoid wrongful convictions - See para­graphs 37 to 52.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - Sections 487.04 to 487.09 of the Criminal Code authorized the issuance of search warrants for seizing bodily substances for forensic DNA testing - The Supreme Court of Canada affirmed that the provisions conformed with s. 8 of the Charter - The court rejected an argu­ment that DNA warrants should only be available when it was necessary for the state to obtain a sample because less intru­sive investigative techniques were not effective - There was no reason to import, as a constitutional imperative, a require­ment that DNA warrants be a "last resort" investigative tool like wiretap authori­za­tions - Wiretaps were sweeping in their reach, but DNA warrants were target spe­cific - DNA warrants could exonerate an accused early in an investigation - Further, the s. 487.05(1) requirement that a warrant be "in the best interests of the administra­tion of justice" would prevent a judge from issuing an unnecessary warrant - See para­graphs 53 and 54.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - Section 487.05 of the Criminal Code provided that a judge could grant a DNA warrant where there were reasonable grounds to believe that: (a) a designated offence had been com­mitted; (b) a bodily substance had been found, inter alia, at the crime scene or on the victim; (c) the target of the warrant was a party to the offence and (d) forensic DNA analysis of a bodily substance from that person would provide evidence about whether the bodily substance referred to in (b) was from that person - The Supreme Court of Canada affirmed that the DNA provisions conformed with s. 8 of the Charter - In particular, the court held that the standard of reasonable grounds for the issuance of a warrant was sufficient - See paragraph 55.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - Section 487.05 of the Criminal Code provided that a judge could issue a DNA warrant on an ex parte appli­cation - The Supreme Court of Canada held that the ex parte nature of the pro­ceeding did not render the DNA war­rant scheme contrary to s. 8 of the Charter - The reference to ex parte proceedings was not mandatory and an issuing judge might, in suitable cases, find it advisable to re­quire notice to ensure reasonableness and fairness - However, as with most investiga­tive techniques, the ex parte nature of the proceedings was constitu­tionally acceptable as a norm because of the risk that the suspect would take steps to frustrate the proper execution of the warrant - See paragraph 56.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - Sections 487.04 to 487.09 of the Criminal Code authorized the issuance of search warrants for seizing bodily substances for forensic DNA testing - The Supreme Court of Canada held that the provisions did not violate the principle against self-incrimination and, therefore, did not render any search and seizure performed under them contrary to s. 8 of the Charter - A consideration of the ra­tion­ales underlying the principle suggested that this was a case where "the factors that favour the importance of the search for the truth ... outweigh the factors that favour protecting the individual against undue compulsion by the state" - The first ra­tion­ale, reliability of evidence, was not a con­cern with DNA evidence - The second rationale, protection against the state's abuse of power, was engaged, but there were a number of safeguards to prevent state abuse, including prior judicial author­ization and limits on the use of the DNA evidence - See paragraphs 57 to 60.

Civil Rights - Topic 1404.2

Security of the person - Law enforcement -DNA samples - [See all Civil Rights - Topic 1217 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimi­nation - [See first and sixth Civil Rights - Topic 1217 ].

Civil Rights - Topic 4385

Protection against self-incrimination - Incriminating conditions of the body - DNA warrant - [See first and sixth Civil Rights - Topic 1217 ].

Criminal Law - Topic 3071

Special powers - Forensic DNA analysis - General (incl. interpretation of legislation) - Section 487.05 of the Criminal Code provided for the issuance of warrants to obtain bodily substances for forensic DNA analysis - Section 487.04 defined "forensic DNA analysis" as the comparison of the DNA results from seized bodily substances with DNA results of bodily substances referred to in s. 487.05(1)(b) (e.g., bodily substances found at a crime scene or on a victim) and included "any incidental tests associated with that analysis" - The Supreme Court of Canada opined that what was authorized by "incidental tests" was "simply the furtherance of the 'forensic DNA analysis'. That is, those tests that may be useful in advancing the matching of the two samples, and nothing more, are permitted." - See paragraph 13.

Criminal Law - Topic 3071

Special powers - Forensic DNA analysis - General (incl. interpretation of legislation) - [See first, second, third, fourth and sixth Civil Rights - Topic 1217 ].

Criminal Law - Topic 3079

Special powers - Forensic DNA analysis - Ex parte application for warrant - [See fifth Civil Rights - Topic 1217 ].

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - The accused allegedly sexually assaulted and impregnated the complainant - The ac­cused's DNA was compared with the com­plainant's aborted fetus' DNA - Five samples returned inculpatory results - The Crown's expert disregarded a non-match­ing sample as a mutation, noting that "mutations are well documented in pater­nity testing, and the international guide­lines state that at least two exclusions have to be noted before parental exclusion can be determined" - No evidence was given as to the nature of the international guidelines - If that sample was not a muta­tion, the accused was not the fetus' father - The Supreme Court of Canada affirmed the accused's conviction - The expert's reli­ance on the international guidelines was reliance on information obtained and acted upon within the scope of her expertise - Absent a challenge on that issue, the expert was entitled to refer to the sources within her field of expertise to explain and sup­port her conclusions - The trial judge had been satisfied that the current standards in technology and com­petence had been met -He could give the expert's opinion the weight that he con­sidered appropriate and there was no basis to interfere with his assessment of that evidence - See para­graphs 62 and 63.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See Cri­minal Law - Topic 5585 ].

Evidence - Topic 7058

Opinion evidence - Expert evidence - Particular matters - DNA evidence - [See Criminal Law - Topic 5585 ].

Cases Noticed:

R. v. Brighteyes (P.J.) (1997), 199 A.R. 161 (Q.B.), refd to. [para. 25].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 29].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 33].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 34].

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, refd to. [para. 34].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 35].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 35].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201, refd to. [para. 36].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 36].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 40].

R. v. Laporte (1972), 29 D.L.R.(3d) 651 (Que. Q.B.), refd to. [para. 41].

S.F. v. Canada (Attorney General) et al. (2000), 128 O.A.C. 329; 141 C.C.C.(3d) 225 (C.A.), refd to. [para. 44].

R. v. Briggs (W.) (2001), 149 O.A.C. 244; 157 C.C.C.(3d) 38 (C.A.), refd to. [para. 45].

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, refd to. [para. 53].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 62].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.04, sect. 487.05, sect. 487.06, sect. 487.07, sect. 487.08, sect. 487.09 [Ap­pendix].

Authors and Works Noticed:

Canada, Standing Senate Committee on Legal and Constitutional Affairs, Pro­ceedings, Issue No. 43 (November 25, 1998), p. 43:46 [para. 49].

Counsel:

Larry G. Anderson, Q.C., and Laura K. Stevens, for the appellant;

Arnold Schlayer, for the respondent;

Roslyn J. Levine, Q.C., and Moiz Rahman, for the intervener, Attorney General of Canada;

Michal Fairburn and Janet Gallin, for the intervener, Attorney General of Ontario;

Joanne Marceau, for the intervener, Attor­ney General of Quebec;

John Walsh, Q.C., and Pierre Gionet, for the intervener, Attorney General of New Brunswick.

Solicitors of Record:

Anderson Dawson Knisely Stevens & Shaigec, Edmonton, Alberta, for the appellant;

Attorney General of Alberta, Edmonton, Alberta, for the respondent;

Attorney General of Canada, Toronto, Ontario, for the intervener, Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervener, Attorney General of Quebec;

Attorney General of New Brunswick, Miramichi, New Brunswick, for the intervener, Attorney General of New Brunswick.

This appeal was heard on March 19, 2003, by McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The following judgment was delivered in both official languages by Arbour, J., on October 31, 2003.

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