J. 2002 SKPC 30 IN THE MATTER OF THREE APPLICATIONS FOR D.N.A. WARRANTS PURSUANT TO S.487.05 OF THE CRIMINAL CODE FILED FEBRUARY 27, 2002 AND IN THE MATTER OF ALLEGED OFFENCES CONTRARY TO S. 155 OF THE CRIMINAL CODE Judgment B.D. HALDERMAN, P.C.J. March 7, 2002 D.N.A. Warrant Applications Judgment March 7, 2002 Background [1] The Crown has applied pursuant to s. 487.05 of the Criminal Code for 3 D.N.A. Warrants. [2] Three Informations in Support, each essentially identical, have been sworn by an RCMP officer. Each alleges that middle-aged man and his 19-year old daughter have committed incest, contrary to s. 155 of the Code, and that child, now months old, has been born as result of the incestuous relationship. The applications before the Court are for DNA Warrants to obtain blood samples from the male, the female and the child. [3] The Informations depose that the Crown has obtained “DNA sample” from the person who says she is the mother (herein “the natural mother”) of the 19-year-old female. assume, although it is not stated in the Informations, that the “DNA sample” is or was derived from blood sample of the natural mother. There is no other bodily substance in the possession or control of the Crown which relates to the alleged incest. [4] While there are deficiencies in the Informations in Support which are set out hereinafter (which deficiencies may possibly be cured by amended Informations being filed), there is in my view more fundamental problem with respect to the applications. That problem is whether the facts as alleged fall within and meet the requirements of s. 487.05(1) of the Code. DNA Warrants Analysis of Section 487.05 of the Criminal Code [5] Section 487.05(1) of the Code provides: 487.05(1) provincial court judge who on ex parte application made in form 5.01 is satisfied by information on oath that there are reasonable grounds to believe (a) that designated offence has been committed, (b) that bodily substance has been found or obtained (i) at the place where the offence was committed, (ii) on or within the body of the victim of the offence, (iii) on anything worn or carried by the victim at the time when the offence was committed, or (iv) on or within the body of any person or thing or at any place associated with the commission of the offence, (c) that person was party to the offence, and (d) that forensic DNA analysis of bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person and who is satisfied that it is in the best interests of the administration of justice to do so may issue warrant in Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1). [6] have searched all databases on QuickLaw relating to ‘DNA bodily substances’, as well as related words and phrases. have not found any case dealing with similar application as regards possible charge under s. 155 of the Code, nor was any case included with the Informations in Support filed by the Crown prosecutor. [7] In the absence of authority, have therefore analyzed the words of s. 487.05(1), by subparagraph as well as in their entirety, to determine the proper meaning and interpretation to be given to the subsection. [8] Section 487.05(1)(a) requires that be satisfied that there are reasonable grounds to believe that designated offence has been committed. If the deficiencies above referred to are remedied, there may well be reasonable grounds to believe that designated offence, incest contrary to s. 155, has been committed. [9] Section 487.05(1)(b) requires that be satisfied that bodily substance has been found or obtained at, on or within specified bodies, places or things. [10] “Bodily substance” is not defined in either the general definition section (s. 2) nor the DNA definition section (s. 487.04) of the Code. [11] As noted above, the Informations in Support reveal that the Crown has obtained DNA sample from the person who claims to be the natural mother of the 19-year-old female. Assuming that her DNA sample is derived from blood sample and is therefore ‘bodily substance’, can the bodily substance be said to have been found or obtained (in the words of the section): (i) “at the place where the offence was committed”? In my opinion, it cannot. Based on the Information, which is imprecise in this regard, the alleged offence was committed in Saskatchewan or Manitoba.. The natural mother resides in another province and apparently has not lived in Saskatchewan or Manitoba. (ii) “on or within the body of the victim of the offence”? In my opinion, the answer must be ‘No’. The natural mother cannot, in any reasonable definition of the word, be properly considered to be the ‘victim’ of the offence. (iii) “on anything worn or carried by the victim at the time when the offence was committed”? In my opinion, the answer must be ‘No’, on the same basis that the natural mother cannot be considered to be the victim of the offence. (iv) “on or within the body of any person ... or at any place associated with the commission of the offence”? Similarly, the answer must be ‘No’. While it is literally true that the natural mother’s blood sample has been obtained from ‘within’ her body, it is my view that it cannot reasonably be argued that this blood sample is ‘associated with’ the commission of an offence. Although there are numerous definitions of the words “associate” and “associated”, it is clear from the context of s. 487.05(1)(b)(iv) that the proper meaning of the phrase ‘associated with’ is that set out in the Concise Oxford Dictionary, 10th edition (1999), viz: “be involved with”. The Concise Oxford’s definitions of the verb ‘associate” reinforce this interpretation: 1. make conceptual connection with; 2. meet or have dealings with. And the meaning of ‘associate oneself with’ is defined as “allow oneself to be connected with or seen to be supportive of”. The natural mother has had no timely association whatever with the alleged offence; indeed, proof of the alleged offence by means of DNA analysis is not dependent on whether the Crown has DNA sample from the natural mother or not. It is the DNA of the alleged father that is fundamental to the charge. [12] In my view, the person who is best described as ‘victim’ of the offence of incest is the child born of an incestuous relationship. Assuming, without deciding, that it is proper to conclude that the child is victim, there has in the present case been no bodily substance found or obtained, from the child or from anyone else, and accordingly no portion of s. 487.05(1)(b) is applicable. [13] The conclusions have arrived at after analyzing each subparagraph individually are reinforced when s. 487.05(1) is read as whole and in the context of the other DNA provisions of the Code. Subparagraphs 487.05(1)(b)(ii)(iii) and (iv) all refer to bodily substance found or obtained on or within the body of victim or some other person involved with the offence. Subparagraphs (i) and (iv) refer to bodily substances found or obtained at or related to the place where the offence was committed. [14] The proper inference to be drawn from the words have emphasized is that warrant may be issued when some substance such as saliva, semen, hair, blood or like product produced by or excreted or discharged from the body is found at or obtained in conjunction with crime scene, or is found in or on, or obtained from, victim or other person present at crime scene. There is nothing in s. 487.05 which can in my view fairly be said to suggest that a blood sample of a child born of an alleged incestuous relationship, which sample is not in the possession of the Crown and which remains in the child’s body, is a bodily substance ‘found or obtained’ within the meaning of s. 487.05(1)(a). The term ‘bodily substance’ is used throughout the DNA sections of the Code (ss. 487.04 to 487.09). It is not, as have noted, defined. Without exception, all of the approximately 40 cases reviewed on the QuickLaw database relate to DNA warrants respecting analysis of bodily substances such as those referred to at the outset of this paragraph. [15] As important as is the investigation and prosecution of incest, do not think that Parliament has by the use of the words contained in s. 487.05(1) intended to authorize court to require the mother, father and child to submit to DNA testing on the facts as deposed to in the present applications. My view might be otherwise if bodily substance of one of the mother, father or child (especially the father) was found or obtained and if the other requirements and conditions of s. 487.05 could be satisfied. Deficiencies in the Informations in Support [16] In the event that I am in error with respect to my interpretation of s. 487.05, and these applications were to be renewed, there are a number of significant deficiencies in the Informations in Support, which would need to be remedied if further consideration were to be given to the applications. [17] In general, paragraphs 1(E), (J), (K), and (L) do not set out the basis or source of the officer’s information. For example, paragraph 1(K) says that during the course of the investigation the officer has learned that the 19-year-old woman has gone by different surnames. The basis on which the officer has learned this, and from whom, is not stated. Related to this, the maiden name of the 19-year-old woman, as set out on the baby’s Registration of Live Birth, is different than the surname of the natural mother. There may well be an explanation for this but the explanation should be set. [18] Paragraph 1(E) does not set out the relationship to the parties of the named informant, nor why the information provided by the informant is considered reliable. Paragraph 1(J) refers to distinctive birthmark, but it is of no probative value as it is not linked in any satisfactory fashion to the alleged father. Nor is there any indication as to the source of the natural mother’s information in this regard, which is based on two-month relationship at the time the 19-year-old was allegedly conceived. There is nothing from the natural mother positively stating that no other person could be the father of the 19-year-old. Such statement should ordinarily be included; this is especially the case when the relationship is shortlived. While the Informations attach copy of the Registration of Live Birth obtained by the RCMP from Vital Statistics regarding the month old baby, there is no similar Registration of Live Birth respecting his 19-year-old mother, notwithstanding that it appears she was born in Saskatchewan and the document should be as readily available as was that of the baby. Given the natural mother’s allegation as to the birth father of the 19-year-old and the latter’s denial of her paternity, the information, if any, contained in the Registration of Live Birth concerning the birth father, would be of assistance in providing complete picture for the court. [19] While it may be considered to be self-evident, I am of the view that there should be some indication as to how the DNA analysis will establish that the adult male is the natural father of the 19-year-old female and the baby, and how it will negative any suggestion that the father and mother of the baby are ‘strangers’ genetically speaking. [20] Paragraph 3(C) does not set out whether the RCMP officer who will take the blood samples has a certificate or any similar qualification, nor is the qualification of the corporal who trained him set out. In and of themselves, these deficiencies would probably not preclude issuance of warrant. They do point up, however, the necessity of providing some basic evidence which can satisfy the court that the technician or expert who will carry out DNA procedures is properly qualified to do so. [21] The paragraphing format used in the present applications is confusing and detracts from ease of reference and understanding. As indicated in earlier fiats dealing with other applications, and as set out in the guidelines respecting General and DNA Warrants reported at [2000] S.J. No. 54 (Q.L.), paragraphing should use ordinary sequential numerals, in essentially the same fashion as in the within decision. The last page and half of the Informations in Support, after paragraph 3.1(a), is especially perplexing in regard to its numbering. [22] In preparing an Information in Support, it is imperative that the oft-quoted words of Gerein J. (as he then was) in R.v.Christianson (1986) 1986 CanLII 2973 (SK QB), 26 C.C.C. (3d) 391 at pp. 396 397 be heeded: If the informant has first-hand knowledge of the facts, it is simple matter to so state. If the knowledge of the facts is second- or third-hand, then that should be so stated and particulars about the source should be set out in as much detail as is possible and practical. It must be remembered that the justice must determine from the facts presented whether reasonable grounds exist such as to justify warrant. The justice must necessarily form an opinion as to whether the stated facts are true and accurate. This can hardly be done if the source is not disclosed as it precludes the justice from even considering the credibility or reliability of the source. The justice may have no question about the veracity of the informant. How-ever, in the case of second-hand information, the veracity of the informant is not the prime issue. Assuming that the informant has communicated the information correctly, there still must be an examination to determine whether the communicated information was true and accurate. This involves an examination of the source vis-a-vis his means of knowledge, his reliability and his veracity. It is permissible for an information to contain hearsay and facts obtained from confidential source (without naming the confidential source), but the means of testing the reliability of same must be afforded to the justice. If this is not done, it will ordinarily be impossible for the justice to be satisfied that reasonable grounds exist. Application respecting the month old Child [23] In the event that the Crown were to renew the present warrant applications as result of additional information coming to light, think it appropriate to note that, subject to the nature of the additional information, would be hesitant to order DNA Warrant with respect to the baby, at least until DNA analysis was carried out on blood or other bodily substances of the alleged father and mother. The baby is obviously not in any position to give an informed consent, instruct counsel or otherwise avail itself of the information required to be provided pursuant to s. 487.07 of the Code. The custodial parent or parents are in my view in the legal position of being the persons who can give informed consent to the taking of the baby’s blood. While it may be appropriate at some point to order that the baby’s blood sample be obtained notwithstanding any parental non-consent, it is questionable whether it could be concluded at present that it was in the best interests of the administration of justice to make such an order. [24] It would appear that insofar as the probative benefits of DNA analysis are concerned, the crucial determination will be whether the father and mother have the requisite number of matching DNA characteristics; the DNA of the baby would then provide further confirmation or negation of the incestuous relationship. [25] In the result, I am of the view that a DNA warrant application with respect to the baby would be premature, but may be renewed in due course if the Crown is so advised. Concluding Matters [26] Any subsequent application with respect to the within matters must include reference to the present applications having been made, and to this judgment. [27] In light of the novel nature of these applications, propose to make this judgment available to the Chief Judge’s office for publication, in the usual fashion. No application for sealing order has been made, and do not presently perceive any possibility that publication will adversely impact on any ongoing investigation or otherwise compromise source. (The same may not be true with respect to the contents of the three Informations in Support, the contents of which will not be disclosed or made public except pursuant to s. 487.3 of the Code.) If the RCMP or the reviewing prosecutor consider that publication of this judgment should be delayed, the Court clerk should be so notified not later than p.m. on March 15, 2002 so that the matter of publication may be addressed further. Dated at Melfort, Saskatchewan on March 7, 2002. P.C.J. Judge of the Provincial Court of Saskatchewan
The Crown applied for three DNA warrants pursuant to s.487.05 of the Criminal Code. Each of the three Informations sworn by an RCMP officer alleged the accused and his 19 year old daughter committed incest contrary to s.155, and a 7 month old child was born as a result. The Informations deposed that the Crown had obtained a DNA sample of the person who claimed to be the natural mother of the 19 year old.HELD: 1)No case was found dealing was a similar application regarding a possible charge under s.155. The words of s.487.05 were analyzed to determine its proper meaning and interpretation. 'Bodily substances' is not defined in the general definition s.2 nor the DNA definition s.487.04 of the Criminal Code. Assuming, without deciding, that it is proper to conclude that the child is a victim, there has been no bodily substance found or obtained from the child or from anyone else, and accordingly no portion of s.487.05(1)(b) is applicable. Subparagraphs 487.05(1)(b)(ii), (iii) and (iv) all refer to a bodily substance found or obtained on or within the body of a victim or some other person involved with the offence; 487.05(1)(b)(i) and (iv) refer to bodily substances found or obtained at or related to the place where the offence was committed. Nothing in s.487.05 suggests that a blood sample of a child born of an alleged incestuous relationship, which is not in the possession of the Crown and remains in the child, is a bodily substance found or obtained within the meaning of s.487.05(1)(a). 2)There were numerous deficiencies in the Informations. The paragraphs did not set out the basis or source of the officer's information, the relationship of the parties to the named informant, nor why the information was considered reliable. There should be some indication as to how the DNA analysis will establish that the adult male is the natural father and how it will negative any suggestion that the parents of the baby are 'strangers' genetically speaking. The qualifications of the RCMP officer who will take the blood samples and of the corporal who trained him should be set out. The paragraphing format was confusing. 3)A DNA warrant application would be premature. The custodial parent or parents are in the legal position of being the persons who can give informed consent to the taking of the baby's blood. It may be appropriate at some point to order a sample be obtained. It was questionable whether it was in the best interests of the administration of justice to make such an order now.