CANADA PROVINCE OF NOVA SCOTIA COUNTY OF CAPE BRETON 1998 SD CR 108171 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN L.S.M. Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on August 14, 2008. DECISION ON VOIR DIRE HEARD: in Sydney, Nova Scotia before The Honourable Mr. Justice Jamie W. S. Saunders on February and 9, 1999 DECISION: February 9, 1999 (Orally) COUNSEL: Andre Arseneau, for the Crown Donald MacLennan, for the defence Saunders, J.: (Orally) The accused is charged by Indictment dated January 5, 1998 that he: between the 1st day of January, 1992 and the 1st day of August, 1995, at or near [...] Street, Sydney; [...]; [...] [...], Sydney; [...] [...] in the Count of Cape Breton, Province of Nova Scotia, did commit sexual assaults on LdW, contrary to Section 271 of the Criminal Code of Canada. He elected trial by jury. His trial began yesterday February 8, 1999. He was arraigned and entered plea of not guilty. As agreed in our Pre-trial Conference held by telephone on January 28, 1999 pursuant to s. 625.1(2) of the Criminal Code of Canada, we proceeded with voir dire before empaneling jury. The purpose of the voir dire was to determine the admissibility of results of an analysis of blood sample taken from the accused by the Cape Breton Regional Police Service on September 29, 1995. The accused challenges the admissibility of that evidence. His objection is framed in two parts. First and primarily, he says that the blood sample was taken pursuant to warrant, proportedly obtained from Provincial Court judge, pursuant to the provisions of s. 487.05(1) of the Code. For reasons that will outline in moment, L.S.M. says the warrant was not lawful warrant, the actions taken by the police were not authorized, and the use to which the sample of his blood was put was illegal. Therefore, or in addition, his Charter Rights protected by s. and s. were breached, and the only appropriate remedy is to exclude the evidence pursuant to s. 24(2) of the Charter. Second, the defence says that written consent provided by the accused on September 14, 1995 is largely irrelevant, but to the extent that it is considered on this voir dire it should be rejected for number of reasons, about which will say more later. The salient facts concerning which there is very little dispute, may be briefly stated. The accused is charged with one count of committing sexual assaults contrary to s. 271 of the Criminal Code. The accused is the step-father of LdW. LdW turned 14 years old [in 1995]. The allegation is that between January 1992 and August 1995 the accused had sexual intercourse with LdW on numerous occasions. [In 1995] LdW gave birth to full-term baby girl. On August 18, 1995 the accused was interviewed by Constable Mike Kennedy and Sergeant Myles Burke. In his statement the accused denied the allegations of LdW and consented to provide blood samples for comparison purposes. On September 14, 1995 the accused signed consent form to have blood drawn. On September 27, 1995 Sergeant Burke applied for and received warrant to obtain bodily substances from the accused. blood sample was drawn from the accused on September 29, 1995 by Sergeant Dave Morrison. The Crown relies on the warrant and, in the alternative, the consent of the accused, for the authority to draw the blood. With the consent of LdW, blood was drawn from LdW and her infant daughter, TdW. All three blood samples were sent to the Biology Section of the R.C.M.P. Forensic Lab for analysis. The Crown will seek to introduce into evidence the results of Forensic DNA analysis and the opinion of Gary Verret interpreting the results. Mr. Arseneau for the Crown said that the relevance of the analysis of the accused’s blood is beyond question. He allowed that it may be “completely determinative”. Further, it meets, he says, the reliability requirement for admissibility, in that it is scientifically provable. Consequently, being both relevant and reliable, it ought to be admitted unless there is some particular exclusionary bar to its reception. It is to that issue now turn because accept the Crown’s submission that the proposed evidence meets the requirements for both relevance and reliability. The accused, has the burden of proving that his Charter rights were violated on balance of probability. If such violation is proven, then must decide the appropriate remedy pursuant to s. 24 of the Charter. Having reviewed the pre-hearing briefs and cases filed by counsel and having considered the evidence presented on the voir dire, together with the able oral submissions of counsel, am not satisfied that the accused has demonstrated any violation of either his right to be protected from self-incrimination pursuant to s. 7, or his right to be secure from unreasonable search and seizure pursuant to s. 8. Consequently, need not go on to consider any remedial action under s. 24. In arriving at that conclusion have largely accepted the accused’s initial submission that the written consent he provided to the police may be ignored. have done so, because as Sergeant Miles Burke the lead investigator acknowledged, the blood sample they obtained from the accused was not taken pursuant to the consent, but rather pursuant to the warrant issued by Provincial Court Judge Campbell. Therefore, except to the extent that it became part of the material considered by Judge Campbell which will discuss in more detail in moment need not address, for the purposes of this case, such nice legal questions as the sweep of the accused’s consent; or whether its effect carried forward from September 14 to September 29; or whether there was sufficient nexus between the specific consent given by the accused and the circumstances of the taking of the blood sample so as to characterize the seizure as validly consensual. All will say is that when he provided his warned statement to the police on August 18, 1995 (recorded on audio tape, Exhibit VD Number 2) and when he provided his signed consent to Sergeant Burke on September 14, 1995 (included within Exhibit VD Number 4) the accused had, on several occasions, been given the police caution and his Charter rights. He understood those rights. He chose not to consult lawyer. Further, he clearly understood that he was being accused of having sexual assaulted LdW and having caused her to become pregnant with the baby she was then carrying. The accused knew that the blood sample he was offering, willingly, would be used in the investigation of that alleged crime. Nothing the accused did or said was prompted by any promises, threats or inducements by Sergeant Burke or any other persons in authority. In the result, up until and on September 14, 1995, the day he supplied his detailed written consent to provide bodily substance for testing, the accused’s actions were fully informed and voluntary. Applying R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265, search will be reasonable if it is: a) authorized by law, b) if the law itself is reasonable, and c) if the manner in which the search is carried out is reasonable. On the evidence before me the warrant, upon which the police obtained their sample, was issued by the Provincial Court on September 27, 1995. am satisfied that the manner in which the warrant was executed by Sergeant Burke and Sergeant Morrison two days later, on September 29th, was perfectly reasonable. There is no challenge to the constitutional validity of the law, and so the remaining issue is whether the sample taken from L.S.M. was authorized by law? find that it was, for reasons that would include the following: 487.05 (1) Information for warrant to obtain bodily substances for forensic DNA analysis provincial court judge who on ex parte application 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 (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 things 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 writing authorizing peace officer to obtain, or cause to be obtained under the direction of the peace officer, bodily substance from that person, by means of an investigative procedure described in subsection 487.06(1), for the purpose of forensic DNA analysis. (2) Criteria In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including (a) the nature of the designated offence and the circumstances of its commission; and (b) whether there is (i) peace officer who is able, by virtue of training or experience, to obtain bodily substance from the person, by means of an investigative procedure described in subsection 487.06(91), or (ii) another person who is able, by virtue of training or experience, to obtain under the direction of peace officer bodily substance from the person, by means of such an investigative procedure. It is important to note that in assessing the basis upon which the warrant was granted, my role is not to ask what would have done if the application were presented to me, nor is it to substitute my views for those of the learned Provincial Court Judge. Rather must decide whether there was an evidentiary basis supplied by information upon oath, that would permit reasonably grounded belief of the matters described in sub-sections (a) (d) and that it would be in the best interest of the administration of justice to issue the warrant. am so satisfied. Mr. MacLennan complains that the application to Judge Campbell is nothing more than the same application, dressed up as something else, which the police had initially taken before Judge Ross and which Judge Ross had rejected. Thus, it is argued, that the second application put the Provincial Court Judge in the position of reviewing, in effect reversing, the decision of another Provincial Court Judge, something which they neither have the power, nor discretion, to do. With respect, do not consider Judge Campbell’s decision as simply review of what Judge Ross had considered and rejected seven weeks earlier. find that it was fresh application, materially different than the first, in important aspects and which was proper for the police to bring forward, after consulting as they did with another Crown attorney. Sergeant Burke disclosed to Judge Campbell as one would expect that he had made an earlier unsuccessful application before Judge Ross. While that did not come to be included in Sergeant Burke’s information sworn September 27, 1995, it was made clear during yesterday’s voir dire that the disclosure was declared upon oath when the officer applied ex parte to the Court. The legislation was very new. It was the first time Sergeant Burke had sought such warrant and, to his knowledge, the first time such request had been undertaken by his Department. He consulted with the Crown on the substance and manner of presentation as well as the supporting documentation or detail to be included. There is almost twice as much information provided on oath to Judge Campbell, including very detailed information with respect to: DNA; it’s makeup; the techniques to be used in analysis; the procedure to obtain sample; the accusation of sexual assault against the accused; the purpose for which the sample would be used; that the circumstances qualified for analysis pursuant to warrant under s. 487.05; and that the suspect consented to provide blood sample. commented earlier on Mr. MacLennan’s submission that because the sample was as Sergeant Burke acknowledged taken pursuant to warrant and not L.S.M.’s consent, the fact of his having consented was nothing more than to ease or bolster the application for warrant and was, therefore, (to quote Mr. MacLennan) “extraneous” and should be ignored. It is enough for the purposes of my decision this morning to observe that Judge Campbell was obliged to have regard to all relevant factors in deciding whether or not to issue the warrant. The list of criteria in s-s (2) is not an exhaustive or exclusive list. Therefore, think it entirely logical and proper for the “consents” both in audio taped statement and subsequently obtained written version to have been disclosed to Judge Campbell in order for him to decide the application. They were very relevant to that issue. It would strike me as odd and suspect if they were not disclosed as part of the information placed before him upon oath by the investigator. In conducting my review of the reasonableness of this search warrant, have excised and so ignored factually erroneous information. That only relates to paragraph 30 when Sergeant Burke swore that the child was said to have been born three months pre-mature. It is now an acknowledged fact that the baby girl was born full term. Nothing turns on that correction. The accused argues that should apply restrictive interpretation to the provisions of s. 487.05. He says that the Code contemplates analysis of a sample taken from a suspect for comparison purposes with a bodily substance “found” in circumstances described in s. 487.05 (b) and that because, in this case, no such bodily substance was “found”, one cannot bring these unique circumstances within the very strict requirements and parameters of the authorizing section. For example, Mr. MacLennan argued that the Code contemplates bodily substance to be in some manifestation beyond its mere chemical composition in order for it to qualify as being “found”. Something, he said, like a smear of blood or a semen stain, but not, as here, the bodily substance created as it were by virtue of the conception of a child said to be associated with (in the sense of a product of) the commission of the offence. cannot accept the restricted interpretation urged upon me by counsel for the accused. For example, as Mr. Arseneau for the Crown pointed out in reply, had Parliament intended such limited application, it could easily have added such limiting word as “directly”, which does appear in other parts of the Code, but not here. Further, were it as Mr. MacLennan has suggested, then an accused such as L.S.M. in similar circumstances could never be subjected to warrant to provide sample of bodily substance and would only ever be part of comparative analysis if he or she consented to such production and testing. Mr. MacLennan acknowledged that was the effect and result of his arguments. With respect, reject such proposition. find that the information of Sergeant Burke, in particular paragraphs 2, 28, 29, 31 and 32 provide the evidentiary basis for Judge Campbell’s reasonably grounded belief as to the issuance of this warrant. Specifically, Sergeant Burke placed sworn information before the Court justifying the reasonable belief that the infant T.dW. was, as LdW.’s baby, person associated with the commission of an offence, ie. the product of conception following sexual intercourse with the accused, and that forensic DNA analysis of the accused’s blood would provide evidence about whether the bodily substance found within the infant, came from the accused. These would be some of my reasons for concluding that the blood sample taken from the accused was obtained reasonably and lawfully pursuant to duly authorized and lawfully executed warrant. Further, it has been put to proper purpose. There was no violation of the accused’s s. or s. Charter Rights. The evidence is ruled admissible for the purpose of Mr. MacDonald=s trial. J. CASE NO. VOL. NO. Her Majesty the Queen L.S.M. Saunders, J. Sydney, Nova Scotia SD. CR 108071 LIBRARY HEADING HEARD: Sydney, Nova Scotia, on February 8, 1999 DECISION: February 9, 1999 (Orally) SUBJECT: DNA analysis. S. 487.05 of the Criminal Code. Admissibility of evidence. Voir dire. S. and s. of the Canadian Charter of Rights and Freedoms. Sexual assault, s. 271 of the Criminal Code. SUMMARY: Accused charged with the sexual assault (which led to the impregnation) of his step-daughter who, at age 13, gave birth to full term baby girl. Accused sought to exclude DNA evidence on the basis that his s. and s. Charter Rights were breached when the police took sample of his blood. Following voir dire, held that the accused had failed to show any violation of his Charter Rights. DNA evidence ruled admissible. Accused then re-elected to be tried by Supreme Court Justice alone and changed his plea to guilty. Remanded into custody and sentencing scheduled for April 6, 1999. PUBLISHERS PLEASE NOTE THAT THIS DECISION IS SUBJECT TO PUBLICATION BAN OF ANY INFORMATION TENDING TO REVEAL THE IDENTITY OF THE VICTIM THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT FROM THIS COVER SHEET.
The accused was charged with the sexual assault of his 13 year old step-daughter, which led to her impregnation. Blood was drawn from the complainant and her infant daughter, as well as the accused pursuant to a warrant. The accused challenged the validity of the warrant. He contended that a warrant could only be issued for comparison purposes with a bodily substance found in circumstances described in section 487.05(b) of the Criminal Code, which, he alleged, did not include a bodily substance created by virtue of the conception of a child. Admitting the evidence, that the DNA of a baby born as a result of a sexual assault is a bodily substance for the purposes of section 487.05(b) despite the fact that the child did not exist at the time of the offence.