R. v. Stillman [1997] 1 S.C.R. 607: Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Whether accused's right to security of person infringed in manner not consistent with principles of fundamental justice -- Security of person-- Search and seizure-- Admissibility of evidence

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Criminal law -- Power of search incidental to arrest -- Scope of power -- Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Whether common law power incidental to arrest can be extended to permit seizure of bodily samples and impressions.

Constitutional law -- Charter of Rights -- Search and seizure -- Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Whether accused's right against unreasonable search and seizure infringed -- Canadian Charter of Rights and Freedoms, s. 8.

Constitutional law -- Charter of Rights -- Search and seizure -- Accused in custody not consenting to taking of any bodily samples -- Police seizing from wastebasket in police station discarded tissue used by accused to blow his nose -- Whether accused's right against unreasonable search and seizure infringed -- Canadian Charter of Rights and Freedoms, s. 8.

Constitutional law -- Charter of Rights -- Security of person -- Fundamental justice -- Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Whether accused's right to security of person infringed in manner not consistent with principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7.

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Police also seizing from wastebasket in police station discarded tissue used by accused to blow his nose -- Whether evidence obtained in violation of accused's Charter rights -- If so, whether evidence should be excluded -- Canadian Charter of Rights and Freedoms, s. 24(2).

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Proper approach to s. 24(2) of Canadian Charter of Rights and Freedoms when evidence affects fairness of trial -- Whether such evidence must be excluded regardless of other factors.

The accused, who was 17 years old at the time, was arrested in 1991 for the brutal murder of a teenage girl. He was the last person seen with the victim on the night of the crime. He arrived at his home around midnight, cold, shaken and wet from the upper thighs down. He was cut above one eye, and had mud and grass on his pants. He explained that he had been in a fight with five Indians but this explanation, as well as his account of where he had last seen the victim, varied over time. The victim died from wounds to the head. Semen was found in her vagina and a human bite mark had been left on her abdomen. At the police station, the accused's lawyers informed the police by letter that the accused was not consenting to provide any bodily samples, including hair and teeth imprints, or to give any statements. Once the lawyers left, police officers took, under threat of force, scalp hair samples from the accused and he was made to pull some of his own pubic hair. Plasticine teeth impressions were also taken. A police officer then interviewed the accused for an hour in an attempt to obtain a statement. The accused sobbed throughout the interview and, after being permitted to call his lawyer, he went to the washroom escorted by an officer where he used a tissue to blow his nose. He threw the tissue in the wastebasket. The tissue containing mucous was seized by the officer and used for DNA testing. The accused was subsequently released but was arrested again several months later. At that time, a dentist took new impressions of the accused's teeth without his consent in a procedure lasting two hours. More hair was taken from the accused, as well as a saliva sample and buccal swabs.

Following a voir dire held to determine the admissibility of certain evidence, the trial judge found that the hair samples, buccal swabs and teeth impressions had been obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms but concluded that the evidence was nevertheless admissible. With respect to the tissue containing mucous, he found that it had not been obtained in violation of s. 8 and should thus be admitted. The accused was later convicted by a jury of first degree murder. The majority of the Court of Appeal upheld the trial judge's ruling and affirmed the verdict.

Held (L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be allowed and a new trial ordered at which the hair samples, buccal swabs and dental impressions should be excluded.

Per Lamer C.J. and La Forest, Sopinka, Cory and Iacobucci JJ.: The taking of the hair samples, buccal swabs and teeth impressions infringed s. 8 of the Charter. The bodily samples and impressions were not seized pursuant to the Criminal Code, which at the time of the accused's arrest did not authorize the search of a person or the seizure of parts of the body. Nor were they seized pursuant to the common law power of search incidental to a lawful arrest. The accused's arrest was lawful since the police officers, subjectively, were under the impression that they had reasonable and probable grounds to believe that the accused had committed the murder and, from an objective point of view, there were good and sufficient grounds for the officers to have reached that conclusion. However, the common law power of search incidental to arrest does not extend beyond the purpose of protecting the arresting officer from armed or dangerous suspects or of preserving evidence that may go out of existence or be otherwise lost. The search conducted in this case went far beyond the typical "frisk" search which usually accompanies an arrest. The taking of bodily samples and the making of dental impressions were highly intrusive. Further, despite the Young Offenders Act requirements that a parent or counsel be present when a suspected young offender is being interviewed, in the absence of any adult counselor and contrary to the specific instruction of his lawyers the police interviewed the accused at length and by threat of force took bodily samples and dental impressions. This was the abusive exercise of raw physical authority by the police. The common law power of search incidental to arrest cannot be so broad as to encompass the seizure without valid statutory authority of bodily samples in the face of a refusal to provide them. These samples are usually in no danger of disappearing. If that power is so broad, then the common law rule itself is unreasonable, since it is too broad and fails to properly balance the competing rights involved. It is clear in this case that the accused's right to be free from unreasonable search and seizure was seriously violated. Since the search and seizure of the bodily samples was not authorized by either statutory or common law it could not have been reasonable.

The taking of the hair samples, buccal swabs and dental impressions also infringed s. 7 of the Charter since it violated the right to security of the person in a manner not consistent with the principles of fundamental justice. It was the ultimate invasion of the accused's privacy and breached the sanctity of the body which is essential to the maintenance of human dignity. Police actions taken without consent or authority which intrude upon an individual's body in more than a minimal fashion violate s. 7.

The taking of the discarded tissue infringed s. 8 of the Charter. Where an accused who is not in custody discards an item offering potentially valuable DNA evidence, the police may ordinarily collect and test the item without any concern about consent since, in the circumstances, the accused abandoned the item and ceased to have a reasonable expectation of privacy in it. The situation is different, however, when an accused is in custody. Whether the circumstances are such that an accused abandoned an item and relinquished any privacy interest in it will have to be determined on the particular facts presented in each case. Here, the accused had announced through his lawyers that he would not consent to the taking of any samples of his bodily fluids. The police were aware of his decision but nevertheless took possession of the tissue discarded by the accused while he was in custody. In these circumstances the seizure was unreasonable. The accused's expectation of privacy in this instance, although lower after his arrest, was not so low as to permit the seizure of the tissue. The privacy expectation should not be reduced to such an extent as to justify seizures of bodily samples without consent, particularly for those who are detained while they are still presumed to be innocent.

The primary aim and purpose of considering the trial fairness factor in the s. 24(2) analysis is to prevent an accused person whose Charter rights have been infringed from being forced or conscripted to provide evidence in the form of confessions, statements or bodily samples for the benefit of the state. Thus, when the trial fairness factor is being considered, it is necessary to classify the evidence as constrictive or non-constrictive based upon the manner in which the evidence was obtained. If the accused was not compelled to participate in the creation or discovery of the evidence, the evidence will be classified as non-constrictive. Its admission will not render the trial unfair and the court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice. If the evidence, obtained in a manner which violates the Charter, involved the accused being compelled to incriminate himself either by a statement or by the use as evidence of his body or of bodily substances, it will be classified as constrictive evidence. The unauthorized use of a person's body or bodily substances is just as much compelled "testimony" that could render the trial unfair as is a compelled statement. The security of the body is thus as worthy of protection from state intrusion aimed at compelled self-incrimination as are statements. If the evidence is found to be constrictive evidence, which in the case of statements includes derivative evidence, and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-constrictive means -- where an independent source exists or discovery was inevitable -- then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered. If the evidence is constrictive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-constrictive means, then its admission will render the trial unfair. The court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.

Here, in considering how the admission of the evidence would affect the fairness of the trial, the trial judge erred in concluding that the hair samples, saliva and dental impressions existed independently of any Charter breach and were thus admissible. The accused's bodily samples and impressions existed as "real" evidence but the police, by their words and actions, compelled the accused to provide evidence from his body. This evidence constituted constrictive evidence. The impugned evidence would not have been discovered had it not been for the conscription of the accused in violation of his Charter rights and no independent source existed by which the police could have obtained the evidence. It follows that its admission would render the trial unfair. This finding is sufficient to resolve the s. 24(2) issue as the evidence must be excluded.

In any event, the Charter violations pursuant to which this evidence was obtained were of a very serious nature. The police acted with blatant disregard for the fundamental rights of the accused. Notwithstanding his express refusal to provide bodily samples or to give a statement, the police purposely waited until his lawyers had left to proceed, through the use of force, threats and coercion, to take his bodily samples and to interrogate him in an effort to obtain a statement. The police were also aware that the accused was a young offender at the time, and that he was entitled to the special protection provided by the Young Offenders Act. Finally, the fact that the police rode roughshod over a young offender's refusal to provide his bodily samples would certainly shock the conscience of all fair minded members of the community. The admission of the evidence would thus bring the administration of justice into disrepute.

The tissue containing the mucous, however, should not be excluded. The police did not force, or even request, a mucous sample from the accused. Although the police acted surreptitiously in disregard for the accused's explicit refusal to provide them with bodily samples, the violation of the accused's Charter rights with respect to the tissue was not serious. The seizure did not interfere with the accused's bodily integrity, nor cause him any loss of dignity. In any event, the police could and would have obtained the discarded tissue. It was discoverable and the administration of justice would not be brought into disrepute if the evidence obtained from the mucous sample were to be admitted.

Per Major J.: Cory J.'s reasons excluding the conscripted evidence obtained from hair samples, buccal swabs and dental impressions were agreed with. The tissue containing the mucous sample, however, was not obtained in violation of s. 8 of the Charter. The accused voluntarily and intentionally threw the tissue into the washroom wastebasket in full view of the officer. By doing so he abandoned the tissue, and lost any expectation of privacy he might have had in regard to it. Consent is not an issue where evidence is abandoned even when the accused is in custody. Where there is no reasonable expectation of privacy, there is no search, and no requirement of informed consent. Since no violation of the Charter occurred with regard to the tissue, there is no need to enter into a s. 24(2) inquiry.

Per McLachlin J. (dissenting): The taking of bodily samples falls to be decided under s. 8 of the Charter, not under s. 7. Section 7 of the Charter does not purport to enlarge the common law principle against self-incrimination. The common law as adopted and applied in Canada confined the principle of fundamental justice known as the principle against self-incrimination to testimonial evidence. For good and principled reasons, this principle has never extended to physical or "real" evidence. It follows that the principle against self-incrimination which may be read by inference into s. 7 does not apply to real evidence, except in the case of real evidence derivative from testimonial evidence which would not have been discovered but for the accused's involuntary testimony. All other real evidence falls to be treated under the guarantee against unreasonable search and seizure in s. 8. To hold otherwise would extend the principle of self-incrimination not only beyond its recognized ambit in Canada, but beyond its limits in comparable justice systems throughout the world.

The taking of the accused's hair samples, buccal swabs and dental impressions violated s. 8 of the Charter. While the common law permits relatively non-intrusive procedures to take evidence from a suspect in custody for purposes of identification, the invasiveness of the searches and seizures leading to the taking of the bodily samples and dental impressions, and the seriousness of the incursion on his privacy and dignity they entailed, place them outside the scope of lawful search incidental to arrest. No emergency was alleged in this case and the searches were not necessary to protect the immediate safety of the police or the public.

The taking of the tissue, however, did not violate s. 8. In discarding the tissue, the accused abandoned it and lost any privacy interest in the tissue that he may have had. The taking of the tissue was not a search and the requirement of the accused's consent did not apply. Although the tissue was taken while the accused was in custody, his right not to incriminate himself was not violated since the privilege against self-incrimination does not apply to real evidence. Unless it is derivative from testimonial evidence, real evidence falls to be considered under the rubric of search and seizure. While it is true that the samples may necessarily be created as a result of the arrest and detention, the fact remains that the bodily state to which they attest and which gives them their significance is not created by the detention. It has a real existence apart from the detention, which merely provides an opportunity to ascertain that bodily state.

The test for the admission of evidence where a Charter breach is alleged requires the judge to conduct a two-part inquiry. The first step is to determine whether the evidence was taken in a manner which infringed the accused's Charter rights. If so, the judge must go on to consider whether, as a result of the infringement, the evidence should be excluded under s. 24(2) of the Charter. Section 24(2) introduces a balancing process. The judge must consider all the circumstances of the case and, in light of them, balance the effect of admitting the evidence on the repute of the administration of justice against the effect of rejecting it. In the end the judge must ask which will better serve the repute of the system of justice on the particular facts of the case -- admission or exclusion. The three classes of factors set out in Collins -- factors relevant to the (1) fairness of the trial, (2) seriousness of the violation, and (3) effect of excluding the evidence -- are simply a convenient way of considering the various "circumstances" which may need to be taken into account in a particular case. The first two groups relate to disrepute to the administration of justice which may arise from admission, the third group to disrepute which may arise from exclusion of the evidence. So long as all are considered, the balancing task imposed by s. 24(2) will be discharged.

The framers of the Charter did not intend s. 24(2) to act as an automatic exclusionary or quasi-exclusionary rule and, accordingly, the view that any evidence which affects the fairness of the trial must be excluded under s. 24(2) should be rejected. First, it runs counter to the spirit and wording of s. 24(2), which requires that judges in all cases balance all factors which may affect the repute of the administration of justice, and elevates the factor of trial unfairness to a dominant and in many cases conclusive status. Second, it rests on an expanded and erroneous concept of self-incrimination or conscription which equates any non-consensual participation by or use of the accused's body in evidence gathering with trial unfairness. Third, it erroneously assumes that anything that affects trial fairness automatically renders the trial so fundamentally unfair that other factors can never outweigh the unfairness, with the result that it becomes unnecessary to consider other factors.

Here, the trial judge made a careful review of all relevant factors, applied s. 24(2) in the fashion directed in Collins and concluded that the accused's hair, buccal swabs and dental impressions taken contrary to s. 8 of the Charter were admissible under s. 24(2) -- a conclusion affirmed by the majority of the Court of Appeal. Where the courts below have properly considered all the factors relevant to the s. 24(2) determination, this Court will not interfere. In any event, when all the circumstances are considered together, it cannot be concluded that the trial judge and the majority of the Court of Appeal erred in finding that the exclusion of the evidence would do more harm to the repute of the administration of justice than its admission.

Since the taking of the tissue did not violate s. 8 of the Charter, it is unnecessary to consider its admissibility under s. 24(2).

Per L'Heureux-Dubé J. (dissenting): For the reasons given by Cory J., the arrest was a lawful one. While the search and seizure at issue was clearly not necessary in order to protect the accused, the police or the public, they were authorized by law under the common law search power incidental to arrest. The right to secure evidence as an incident of arrest does not depend on the existence of urgency or exigent circumstances and may extend to the taking of bodily samples and impressions. The following guidelines strike a proper balance between society's interest in detecting and punishing crime and the individual's interests in personal privacy and autonomy over his own body where the taking of bodily samples or impressions occurs as an incident to arrest: (1) the police must exercise their discretion to conduct the search given all of the circumstances; (2) the search must be for a valid objective in pursuit of the ends of criminal justice without running counter to the general objectives of the proper administration of justice; (3) consideration must be given to the intrusiveness involved in the search: the more intrusive, the higher the threshold for finding that the taking of bodily samples or impressions is both justified and conducted in a reasonable manner in given circumstances; (4) the police must have reasonable and probable grounds to conduct the search; (5) the search must be predicated on sufficiently important circumstances; those circumstances will generally be established where: (a) it is impracticable to obtain a warrant to secure the desired evidence; (b) such evidence cannot be obtained by a less intrusive means; (c) there is no alternative evidence available; (d) the offence for which the arrest was made is a serious one; and (e) public policy is served by the type of search at issue. Finally, the manner in which the search is conducted must not be abusive or unreasonable given the totality of the circumstances. A search which does not comply with these requirements could be characterized as unreasonable at common law as well as under s. 8 of the Charter. The determination of whether a search occurred legally as an incident to arrest will depend upon a balancing of these factors.

Here, the search and seizure of the evidence at issue was legal as incidental to arrest and conducted in a reasonable manner in the circumstances of this case given the seriousness of the offence as well as the unavailability of any legal authorization procedure at the time of the accused's arrest. The evidence indicates that the police believed that, in all of the circumstances, it was necessary to obtain bodily substances and dental impressions from the accused in order to apply the law effectively. They could not have proceeded with the murder charge without the DNA evidence or the bite-mark analysis of his teeth impressions. The search and seizure took place in order to achieve a valid objective -- the discovery of evidence which could have either incriminated or established the innocence of the accused. The type of search and seizure at issue constituted minimal affronts to the accused's bodily integrity. Although the taking of pubic hair and the making of dental impressions are more intrusive, on the whole, given that the accused was made to pull out some of his own pubic hair himself and that the dental impressions were made by a dentist according to professional standards, the taking of those specimens is not of such an offensive character in the present circumstances that it would constitute an unreasonable search. In this regard, the accused's refusal to provide any bodily substance and the absence of his lawyers while the specimens were seized are irrelevant in assessing whether the police reasonably exercised their power of search incidental to arrest. Once a search is found to fall within the scope of such power, the police may, in accordance with these guidelines, proceed to search a lawfully arrested person. As well, while the accused's bodily substances and teeth impressions could have been obtained later, this is not a relevant consideration. Further, the police had reasonable and probable grounds for taking bodily samples and dental impressions, given the results of the victim's autopsy which revealed semen in her vagina and a human bite mark on her abdomen. The evidence discloses circumstances of sufficient importance to justify the taking. The police could not have obtained a warrant to secure the type of evidence they sought and the accused's hair, saliva and dental impressions could not have been obtained by less intrusive means. Given the absence of any witness to the murder, there was no alternative evidence that the accused committed this serious offence. Finally, public policy is served by the type of search at issue. Where indicia such as bodily fluids or a human bite mark are found on the victim's body, the possibility of resorting to DNA typing analysis or forensic odontology serves society's substantial interest in deterring such crimes. Since there was no breach of the accused's s. 8 Charter rights in the obtaining of the evidence, such evidence was admissible at trial.

Given the conclusion that the manner in which the police obtained the evidence was, in fact, lawful, it follows that the search was also in accord with the principles of fundamental justice and did not violate s. 7 of the Charter.

The tissue containing the mucous was not obtained in violation of s. 8 of the Charter since the accused could not claim any right of privacy in this specimen. Consequently, this evidence was also admissible at trial.

Although it is not necessary to deal with s. 24(2) of the Charter, there is general agreement with McLachlin J.'s analysis. The classification of evidence under the trial fairness aspect of the s. 24(2) analysis in terms of "non-constrictive `real' evidence" and "constrictive evidence", which includes "derivative evidence", with their possible extension to all kinds of unforeseen situations, is an unfortunate development. Trial fairness concern arises solely where the accused is compelled as a result of a Charter breach to participate in the creation or discovery of evidence which tends to establish his guilt by his own admission, or based upon his own communication. Evidence which affects the fairness of the trial must not inevitably be excluded under s. 24(2). A proper consideration of "all the circumstances" demands a balancing of each set of factors set out in Collins.

Per Gonthier J. (dissenting): The reasons of L'Heureux-Dubé J. were concurred in. There is also agreement with the reasons of McLachlin J. as to the scope of the principle of self-incrimination and the proper analytical approach to the determination of admissibility of evidence under s. 24(2) of the Charter.

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