R. v. Heinricks, 2011 ABQB 368

Court of Queen ’ s Bench of Alberta Citation: R. v. Heinricks, 2011 ABQB 368 Date: 20110608 Docket: 080244817Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Michael Heinricks Applicant Restriction on Publication: By Court Order, information that may identify the person described in this judgment as K.B. may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 Corrected judgment: A corrigendum was issued on June 16, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. __________________________________________________ Reasons for Judgment on Voir Dire of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] The Accused, Michael Heinricks, is charged with one count of sexual assault contrary to s. 271 of the Criminal Code of Canada and one count of sexual interference of a person under the age of 14 years contrary to s. 151 of the Criminal Code . [ 2 ] Mr. Heinricks submits that the seizure of a blood sample obtained from him for DNA analysis violated his s. 8 Charter right to be secure against unreasonable search or seizure and should be excluded under s. 24(2) of the Charter . He further submits that the sample was not voluntarily provided by him as his consent was uninformed.

II. Background Facts [ 3 ] K.B., the complainant, was 13 years old in September 2005. On September 12, she was living with her aunt near Heritage Mall in Edmonton. She had been living there for about six months. She was originally from Terrace, B.C. where she met and knew the Accused, Michael Heinricks. At one point, she would see him two or three times per week as part of a group of friends which included Robert (Bobby) Purchase and her best friend, M., who was dating Mr. Purchase. [ 4 ] On the evening in question, the complainant received a telephone call from Mr.

Heinricks while she was at her aunt ’ s place doing homework. Mr. Heinricks told her that he was on his way to Edmonton and would be there in two hours. He was living in Calgary at the time. [ 5 ] The complainant saw Mr. Heinricks arrive and went out to his vehicle which was in the parking lot of the apartment building. Mr. Purchase was with Mr. Heinricks.

She embarked and they began driving to Whyte Avenue in Edmonton and she testified that they were talking and hanging out and then they started drinking tequila. [ 6 ] The complainant testified that she got very drunk and her last recollection in the car was leaning over and kissing Bobby and then getting back into her seat. According to her, she then blacked out and does not remember anything else that occurred in the car. At that time, Mr. Purchase was in the backseat of the vehicle with her and Mr.

Heinricks was driving. [ 7 ] She then recalls regaining consciousness in a parking lot and began screaming at the top of her lungs. She was partially undressed. She put her pants on and tripped over a fence. She did not recall whether she got her pants fully on before she passed out again. She then woke up in a bar screaming and crying. [ 8 ] At the bar, she asked someone to call her father and after he hung up on her, she had them call her aunt. Her aunt arrived and she next remembers waking up in the hospital. She indicated that swabs were taken from her private parts and some blood work was done.

They then gave her a pill. Her injuries included bruising on her upper thighs, cuts inside her vagina and scrapings on her knees. She never talked to Mr. Heinricks again. [ 9 ] The complainant was unable to recall much of what occurred and was unable to distinguish between her recollection of certain evidence and what she may have been told. For example, she was asked whether she told the police that the sex had been performed by one person, Bobby Purchase, but she did not recall telling that to the police.

While she remembered being swabbed, she believes this is what she was told and she only remembers that a “ sex kit ” was performed on her. She understood this to mean that a swabbing was done. Also, due to her extreme intoxication, she was unable to say with any certainty how long she spent in the vehicle, whether it was one hour, two hours or longer. [ 10 ] Detective Donald Curle was with the Edmonton Police Service Child Protection

Section in September 2005. He became involved in an investigation beginning at 8:00 o ’ clock in the morning of September 12, 2001 arising out of the alleged sexual assault of the complainant during the prior evening or early morning. He understood from talking to the complainant that there were two male individuals involved in the assault, Michael Heinricks and Robert Purchase. He was provided with a phone number for Mr.

Heinricks. [ 11 ] Detective Curle was advised that a sex kit had been used and he took possession of the sex kit and turned it over to Constable Lisa Paniak. [ 12 ] On October 11, 2005, he called the telephone number provided by the complainant. He understood that it belonged to Mr. Heinricks. There was no answer and he left his name, phone number and a request for a call back. [ 13 ] Later on October 11, 2005, Detective Curle received a telephone call from an individual who identified himself as Michael

Heinricks. The telephone conversation lasted for two to three minutes. Detective Curle identified himself and told the person on the other end of the line that he was investigating a sexual assault that had occurred in Edmonton and that he wanted to meet to discuss the matter. He believed he advised that the sexual assault related to the complainant. [ 14 ] Detective Curle said that Mr. Heinricks was cooperative throughout the telephone conversation and agreed to meet with him and that this matter had been “ hanging over my head ” . Mr.

Heinricks was staying with his sister in Calgary and they agreed to meet at the downtown police headquarters in Calgary at 11:00 a.m. on October 20, 2005. Detective Curle asked Mr. Heinricks about Mr. Purchase and was told by Mr. Heinricks that he had not seen Mr. Purchase since the night of the offence. Mr. Heinricks asked whether he should call a lawyer and Detective Curle told him he could get a lawyer at any time. [ 15 ] Defence counsel submits that the evidence is insufficient to establish that the individual who called Detective Curle was indeed Michael Heinricks.

I am satisfied on a balance of probabilities, given the circumstances of the call and the information provided to Detective Curle by the caller, that it was Michael Heinricks who called Detective Curle on October 11, 2005. [ 16 ] Detective Curle attended at the Calgary police headquarters on October 20, 2005. However, Mr. Heinricks did not appear. Detective Curle telephoned the same number he had earlier used to contact Mr. Heinricks and left a message for Mr. Heinricks to call him on his cellular telephone. Detective Curle also telephoned Mr. Heinricks ’ sister, Lisa Heinricks, and left a message for Mr.

Heinricks to call. No call was received. He never again spoke directly with Mr. Heinricks. [ 17 ] On October 11, 2006, Detective Curle was contacted by Constable Hennessey at the RCMP detachment in Terrace, B.C. regarding the whereabouts of Mr. Purchase. Corporal Clinton Lange of the RCMP detachment in Terrace was the lead investigator at that time into a sexual assault that occurred in Terrace allegedly involving Mr. Purchase. On November 20, 2006, Detective Curle sent a letter to Corporal Lange indicating that Mr. Purchase and Mr.

Heinricks were suspects in the sexual assault of K.B. in Edmonton. [ 18 ] Detective Curle prepared an Information To Obtain (ITO) for a warrant to obtain a DNA sample from Mr. Purchase on February 8, 2007. When Detective Curle swore the ITO to obtain the DNA warrant for Mr. Purchase, he specified that he wished to receive a sample to compare to a substance found on or within the body of the alleged victim. He testified that this was important information for the judge hearing the application and also for the individual from whom the sample was sought.

The warrant was sent to Corporal Lange in Terrace, B.C. and it was executed on February 15, 2007 at the Kitimat detachment. [ 19 ] On June 6, 2007, Corporal Lange stopped a vehicle in Terrace that was being driven by Mr. Heinricks. He understood Mr. Heinricks to be a witness with respect to the alleged sexual assault by Mr. Purchase that took place in Terrace. He asked Mr. Heinricks to provide information regarding that alleged sexual assault but Mr.

Heinricks refused. [ 20 ] On June 27, 2007, Corporal Lange received a request by telephone from Detective Curle to provide dates upon which a DNA warrant could be executed on Mr. Heinricks. Corporal Lange understood that the paperwork had been completed to obtain the warrant but it was necessary to insert the available dates that a warrant could be executed. [ 21 ] On September 22, 2007, Corporal Lange spoke with one Terry Heinricks who identified himself as the father of Mr. Heinricks. He was advised that Mr. Heinricks was likely in Penticton, B.C. with his mother.

A short time later, he received a telephone call from Patricia Heinricks who identified herself as the mother of Mr. Heinricks. She wished to know why Corporal Lange wished to contact her son. [ 22 ] Corporal Lange testified that he advised Patricia Heinricks that there was a serious investigation taking place and they were looking to obtain a DNA sample from Michael Heinricks. He advised her to tell Michael to go to the Penticton RCMP to provide a DNA sample.

He also advised her that it was a very serious matter that was not going away and if he did not go down to the RCMP detachment voluntarily, a warrant would be issued. After giving the sample on October 26, 2007, Mr. Heinricks asked Sergeant Lacroix “ to call and make sure there ’ s no warrant put out for this ” . [ 23 ] On October 24, 2007, Detective Curle received a telephone call from Constable Lang with the RCMP detachment in Terrace, B.C. regarding the whereabouts of Mr. Heinricks.

[ 24 ] On October 25, 2007, Detective Curle contacted Sergeant Stephane Lacroix (then Corporal) of the RCMP detachment in Penticton, B.C. by telephone. He asked Lacroix to assist the Edmonton Police by obtaining a voluntary DNA sample from Mr. Heinricks. Detective Curle provided Sergeant Lacroix with a phone number to contact Mr. Heinricks and told him that the obtaining of the sample was in relation to a sexual assault that occurred in Edmonton. Sergeant Lacroix was advised that Mr. Heinricks had agreed to provide a DNA sample and would attend at the RCMP detachment in Penticton to do so.

Detective Curle faxed the EPS consent forms for the obtaining of DNA samples to Sergeant Lacroix. [ 25 ] Sergeant Lacroix then called the number he was provided and spoke with someone he believed to be Mr. Heinricks ’ mother. He left a message for Mr. Heinricks to get in touch with him. [ 26 ] On October 26, 2007, Mr. Heinricks attended at the RCMP detachment in Penticton. Sergeant Lacroix met Mr. Heinricks at the front counter of the detachment and the two then entered into a small interview room through separate doors. An audio recording was taken of the meeting between Sergeant Lacroix and Mr.

Heinricks during which the sample of blood was taken. Sergeant Lacroix had no recollection or notes concerning any discussions before or after the recording. [ 27 ] Sergeant Lacroix provided Mr. Heinricks with a document received from Edmonton entitled “ Consent to Take Bodily Substances for Forensic DNA Analysis ” and he read the document to Mr. Heinricks. The consent form, signed by Mr. Heinricks, indicates that he voluntarily gave his consent and authorization to Lacroix to take bodily substances from him for forensic DNA analysis. [ 28 ] The consent form provided that Mr.

Heinricks was giving his consent to the seizure of bodily substances knowing that he was being investigated for the following criminal offences: Sec. 271 C.C.C. Sex Assault Sec. 151 C.C.C. Sex Interference Mr. Heinricks asked “ what is sexual interference? ” and he was told that it is “ in regards to a youth, a person under age ” . [ 29 ] The consent form authorized the taking of blood from Mr. Heinricks by “ pricking the skin surface with a sterile lancet ” . [ 30 ] The consent form provides in

Section C: (

C) The purpose of taking my bodily substances is to submit them for forensic DNA analysis and to provide evidence about whether the bodily substances found: (indicate which of the following apply) 1. at the place where the offence was committed; 2. on or within the body of the victim of the offence; 3. on anything worn or carried by the victim at the time when the offence was committed; or 4. on or within the body of any person or thing or at any place associated with the commission of the offence

are from me. [ 31 ] Sergeant Lacroix was unable to advise Mr. Heinricks as to where the bodily substances at issue in this case were found and there was no indication given to him as to which of items 1-4 applied. [ 32 ] The consent form further provided the following: (

D) The bodily substances seized and subject to forensic DNA analysis may produce evidence of a criminal offence or offences and that I may be arrested, charged, and prosecuted. (

E) If charged, the results of the forensic DNA analysis of my bodily substances may be used as evidence in criminal proceedings against me. (

F) I am under no obligation to consent to the taking of my bodily substances for forensic DNA analysis. (

G) If I consent to the taking of my bodily substances for forensic DNA analysis, that I maintain my ability to withdraw my consent at any and all times prior to and during the taking of my bodily substances. [ 33 ] Mr.

Heinricks further acknowledged in the form that he had not been arrested or detained but that he had been informed of his right to retain, instruct and/or consult counsel prior to bodily substances being taken, the right to call any lawyer or obtain free legal advice from duty counsel immediately before any bodily substances were taken and that if he wished to call duty counsel or another lawyer, a telephone and telephone book would be provided. [ 34 ] The consent form also contained an acknowledgement by Mr.

Heinricks that his consent was voluntary, he had a reasonable opportunity to contact a lawyer, the sample was only taken after he had a reasonable opportunity to contact a lawyer, he did not wish to receive free and immediate preliminary legal advice or any advice from a lawyer of his choosing and that he would be provided with a reasonable opportunity to contact a lawyer at any point during the procedure should he change his mind. The document was signed by Mr. Heinricks in the presence of Lacroix. [ 35 ] In addition to providing the document to Mr.

Heinricks for his review and signing, Sergeant Lacroix also read it to him, as evidenced by the CD made of the audio recording. The recording also makes it clear that the DNA sample was requested by the Edmonton Police department and the forms read to, and signed by, Mr. Heinricks were provided by the Edmonton Police. At one point, Mr. Heinricks asked for the name and number of the officer in Alberta. [ 36 ] Sergeant Lacroix obtained a DNA kit from the General Investigations

Section of the RCMP detachment. Included in the DNA kit was a consent form and an instruction form or blood sample checklist. Once the blood samples were taken, they were placed on a sample collection card which was then inserted into a white envelope and placed in the locked drawer of Sergeant Lacroix ’ desk. No one else had access to it. [ 37 ] The request for analysis form, together with the sample, was sent by Sergeant Lacroix by courier to Vancouver in November 2007. [ 38 ] Sergeant Lacroix acknowledged that he did not provide the date or place of the offence to Mr.

Heinricks nor could he remember whether he was provided with that information from the Edmonton Police Service. He also did not provide Mr. Heinricks with the name of the complainant. He did indicate that he believed that the Accused was entitled to have that information provided to him so that he could decide whether to provide a DNA sample or not.

[39] Sergeant Lacroix could not recall what he may have done to confirm that the person who attended at the detachment was, infact, Michael Heinricks. However, on listening to the audiotape, there was a reference to a driver’s licence and the sound of somethingbeing pushed on a table. Sergeant Lacroix said that this triggered his memory and he then recalled that he obtained Mr. Heinricks’driver’s licence and complied with his usual practice of comparing the photograph on the licence with the person in front of him. He wassure that Mr.

Heinricks provided a permanent driver’s licence, and not a temporary one or some other document, as Sergeant Lacroix didmention the driver’s licence and had it not been one with a photograph, he would have remarked about it. [40] Defence counsel submitted that the evidence is insufficient to establish that the individual who attended and provided a DNAsample was Michael Heinricks. In my view, it defies logic that an individual other than Michael Heinricks would have presented himselfat the detachment for this purpose.

I accept Sergeant Lacroix’s evidence of his usual practice of identification, that the reference in theaudiotape to a driver’s licence was concurrent with Michael Heinricks providing his licence, and that he would have commented if thelicence had not included a photograph. III. Issues 1. Which standard of proof applies to the issue of consent to provide a bodily sample? 2. Was Michael Heinricks’ consent to provide a blood sample vitiated, and his s. 8 Charter right infringed? 3. If so, should the evidence of the DNA analysis be excluded? IV. Analysis 1.

What standard of proof is applicable to the consent to provide a bodily sample? [41] In R. v. Wills (1992), (ON CA), 70 C.C.C. (3d) 529, [1992] O.J. No. 294 at p. 546 (C.A.), the Courtdetermined that the applicable standard of proof required of the Crown in order to establish voluntary and informed consent to seizure isa balance of probabilities. In Wills, the Court considered the seizure of a breath sample alleged to have been provided by consent. [42] In R. v. Karas, 2007 ABCA 362, 422 A.R. 344, leave denied [2008] S.C.C.A.

No. 22 the Alberta Court of Appeal issued aMemorandum of Judgment dismissing the appeal from conviction of the accused who was convicted on the strength of a DNA sampleallegedly given by consent. The trial judge determined that he did not have “a reasonable doubt about the voluntariness of the consent”.The Court of Appeal did not specifically address the applicable standard of proof for the application of the waiver doctrine but simplyacknowledged in para. 32 that “the principles governing the voluntariness of confessions are applicable when considering whether [theaccused] voluntarily gave his blood sample”.

The Court then referred to the decision in R. v. Oickle, 2000 SCC 38 , [2000] 2S.C.R. 3 at paras. 68 and 71. [43] The Ontario Court of Appeal did specifically consider the appropriate standard of proof to be applied in determining whetheran accused has “voluntarily” provided a bodily sample for purposes of DNA testing. In R. v. Colson, 2008 ONCA 21, the Court at para.42 questioned why a high standard of proof should be required to cross the admissibility threshold where there is a high degree ofreliability in the evidence tendered.

Blair J.A. adopts the Wills test, including the balance of probabilities standard, as the applicablestandard of proof in such cases. As Blair J.A. pointed out, DNA samples do not carry with them the same risks or unease associated withwrongful convictions as do false confessions. [44] Although R. v. Borden, (SCC), [1994] 3 S.C.R. 145, [1994] S.C.J. No. 82 adopts the Wills test, the Courtdoes not expressly address the issue of the applicable standard of proof. However, the Supreme Court in R. v.

Grant, 2009 SCC 32,[2009] 2 S.C.R. 353 at para. 105 critiqued the usefulness of the concept of “conscriptive evidence” in relation to admissibility, notingthat the pre-trial right to silence under s. 7, the right against testimonial self-incrimination in s. 11(c), and the right against subsequent useof self-incriminating evidence in s. 13 which inform the treatment of statements under s. 24(2) do not apply coherently to bodily samples,which are not communicative in nature.

[ 45 ] In my view, the applicable standard of proof in considering whether a bodily sample was voluntarily provided with consent for the purposes of DNA testing is on a balance of probabilities. 2. Was Michael Heinricks ’ consent to provide a blood sample vitiated, and his s. 8 Charter right infringed? [ 46 ] Mr. Heinricks submits that the circumstances surrounding the giving of his blood sample vitiated any consent or voluntariness on his part.

He argues that the seizure of the blood sample violated his s. 8 Charter right to be secure against unreasonable seizure and the evidence should be excluded under s. 24(2). [ 47 ] Mr. Heinricks signed a consent form allowing the seizure of bodily substances with respect to an investigation of him for a sexual assault and a sexual interference.

However, he argues that insufficient information was provided to him which would have allowed him to make an informed decision on whether to voluntarily provide a bodily substance for the purpose of a forensic DNA analysis with respect to the particular offences with which he is now charged.

He further argues that a threat relayed through his mother that a warrant compelling him to provide a sample would be obtained if he did not voluntarily do so operated to deprive him of his free will to decide. [ 48 ] In Wills , the accused had provided a breath sample into a screening device which registered a “ warn ” reading. Neither of the investigating officers had reason to believe that the accused was impaired but suggested to him that there was value in taking the breathalyzer test to gain evidence that could later be used in relation to a possible civil suit.

The accused agreed to do so and the result of the breathalyzer test indicated clearly that he was impaired. He was convicted at trial. [ 49 ] On appeal, the Court set out the factors which the Crown must establish on a balance of probabilities to establish a waiver by a person who has allegedly consented to an authorized search or seizure (at p. 546): (

i) there was a consent, express or implied; (ii) the giver of the consent had the authority to give the consent in question; (iii) the consent was voluntary in the sense that that word is used in Goldman, supra , and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; (

v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and (vi) the giver of the consent was aware of the potential consequences of giving the consent. [ 50 ] The Court upheld the accused ’ s conviction but on the issue of whether his Charter rights had been breached, the Court found that the consent to seizure by the accused was made without knowledge of the various options and an appreciation of the potential consequences of the choice made.

Based on the information provided to him, the accused saw no possibility of criminal consequences flowing from taking the test. Accordingly, his consent did not operate as a waiver of his right to be free from unreasonable search or seizure.

However, the Court held (at p. 552) that the admission of the evidence would not bring the administration of justice into disrepute or adversely affect the fairness of the trial. [ 51 ] If the police obtain a valid consent to the taking of a sample of bodily substance for the purpose of DNA analysis in relation to a particular offence or offences, the Crown need not establish reasonable grounds to search and seize. However, for a valid waiver of

the s. 8 right to be secure against an unreasonable seizure, the suspect must be possessed of the requisite informational foundation for atrue relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficientavailable information to make the preference meaningful. This applies equally where the individual has agreed to forego his right toconsult counsel as it does when he chooses to provide a sample of bodily substance that the police would otherwise not have the right totake.

An individual from whom consent is sought to either provide a sample or to forego a right to consult counsel can only do so whenhe or she has a full understanding of the extent of his or her jeopardy. It is only then that an informed choice may be made to do either(Borden, at para. 34). [52] In Borden, police officers investigating a sexual assault of an elderly woman advised the accused that they wanted a bloodsample from him for the purpose of determining whether he was involved in a sexual assault that occurred two months after the assaulton the elderly woman.

The accused was not informed that the blood sample, in fact, was sought in relation to the prior offence. TheSupreme Court of Canada affirmed that the seizure of a blood sample from the accused was unreasonable as the consent he provided wasnot valid. In order for a waiver of an accused’s right to be secure against unreasonable seizure to be effective, his consent must be givenwith the requisite informational foundation.

That is, he must have been in possession of sufficient information to be able to choosewhether to waive the right to be secure against unreasonable seizure or to retain that right. [53] The Court in Borden indicated that the degree of awareness of the consequences of the waiver of the s. 8 right by the accusedin any given case depends on the particular facts. Iacobucci J. stated that the understanding of the accused should include the fact that thepolice were also planning to use the product of the seizure, that is the blood sample taken, in a different investigation from the one forwhich he was detained.

A lawful seizure required the accused’s consent which could only be gained with knowledge of the planned useof the blood sample. Without that knowledge, consent was absent. [54] In R. v. Nicholas (2004), (ON CA), 182 C.C.C. (3rd) 393, [2004] O.J. No. 725 (C.A.), leave denied[2004] S.C.C.A. No. 225, the police had informed the accused on two occasions that they wanted to speak to him about a series of break-ins and sexual assaults. He was informed that the police were investigating a series of assaults and that he was a person of interest.

Hewas asked to provide a DNA sample which would be scientifically analysed and compared with evidence obtained from the crimescenes. The police explicitly told the accused that the comparison was to enable the police to identify the person responsible for thecrimes and that the DNA sample could be used in criminal proceedings against him. The consent form signed by the accused did notrefer to the specific date for one of the sexual assaults.

The trial judge held that this amounted to a breach of his Charter right to besecure against unreasonable search and seizure but allowed the evidence to be admitted as it was otherwise discoverable by the policewho were seizing discard samples from other individuals who had refused to provide a sample. The decision was upheld by the OntarioCourt of Appeal. [55] The requirement that an accused be aware of the potential consequences of giving consent was further considered in the case of R. v. Backhouse (2005), (ON CA), 194 C.C.C. (3rd) 1, [2005] O.J. No. 754 (C.A.).

In Backhouse, the accused hadbeen arrested for murder and understood that he was the target of the investigation and not merely a witness. The accused was asked byan investigating detective whether he had fired a gun. The accused stated that he had not done so for years and had nothing to hide. Hewas then asked if he would submit to a hand washing sample for gunshot residue. He agreed to do so after being told by the detectivethat the test would tell “whether he had fired a gun in the last while”.

He was not told that the test could also be positive because oftransference, even if he had not fired or handled a gun. The Court looked at the question of whether the accused gave a valid consent tothe gunshot residue test. [56] The issue in Backhouse required consideration of the sixth criterion from Wills. That is, was the accused aware of thepotential consequences of giving his consent to the gunshot residue test?

This factor required that the accused “must understand that ifthe consent is given the police may use any material retrieved by them in a subsequent prosecution” (Backhouse at para. 132, citingWills at p. 547). [57] The accused in Backhouse argued that he was not aware of the potential consequences of giving consent because he did notknow that the test could be positive even if he had not fired a gun.

He argued that the situation was analogous to Wills where the accuseddid not know that the results of the breathalyzer test may be used in a criminal prosecution against him. [58] The accused in Backhouse was aware of his potential jeopardy, unlike the accused in Wills.

The Court held that themisinformation provided to him impaired his understanding of the consequences of the test so as to negate his consent, just as themisinformation provided in Wills impaired that accused’s understanding of the consequences of taking the breathalyzer test. [59] While the Court in Backhouse found the consent provided by the accused did not constitute a waiver of his right to be free

from unreasonable search and seizure, it held that the hand washing was a lawful search incident to arrest. In the alternative, the relevants. 24(2) factors favoured admission of the evidence. [60] In Karas, the Court considered whether the DNA evidence from blood samples provided by an accused to the police wereprovided voluntarily and with consent.

The trial judge had found that the constable who requested the voluntary sample of blood was notcompletely candid when he told the accused that he was not a suspect, and the accused believed that the sample would be taken by forceif he did not consent. [61] The Alberta Court of Appeal identified the issue as being whether the accused possessed sufficient information to understandthe nature of the investigation and the potential consequences of providing the sample (at para. 30).

The Court noted that the trial judgehad regard to all relevant circumstances which satisfied him that the waiver was valid and the sample voluntarily given. It held that theDNA evidence was properly admitted. [62] In R. v. Palade (2004), (ON SC), 122 C.R.R. (2d) 128, [2004] O.J. No. 3332, Glass J. of the OntarioSuperior Court of Justice found that a consent to search signed after the fact of a police search of the accused’s residence did not amountto an informed voluntary consent.

Further, by advising the accused they would obtain a warrant if he did not consent, the police left theimpression that it was a foregone conclusion that they would be successful in their application for a warrant. Glass J. held that theconsent was not informed and voluntary. He held that admission into evidence of the drugs in question would bring the administration ofjustice into disrepute. [63] In R. v. S. (S.), 2008 ONCA 578, 269 O.A.C. 259 the accused was arrested in relation to a charge of possession of stolenproperty.

Sometime after the police began to interview him, they began questioning him about a number of sexual assaults as they hadpreviously received a tip from an unidentified source that he had been involved in them. Indeed, the officers had no interest in the stolenproperty (a van) but only in the sexual assaults. During the first part of their interview of the accused (evidenced in the first 24 pages oftranscript), the officers did not advise the accused that he was a suspect in the investigation of the sexual assaults nor that they wereinterested in obtaining a DNA sample.

The officers then produced a “public notice” that had been circulated soliciting public assistancein the sexual assaults investigation. After reading the notice, the accused became aware that the focus of the interrogation had changedfrom stolen property to the sexual assaults. He was not provided with his s. 10(

b) Charter rights and was asked on at least threeoccasions whether he had any knowledge of, or involvement in, the sexual assaults. He was then asked to provide a saliva sample andtold that it was “strictly voluntary”. [64] The accused was provided with a consent form which referred to the three sexual assaults being investigated and the dates onwhich they had allegedly occurred. The form indicated the purpose for the DNA testing, the accused’s right to refuse to provide samplesand his right to speak to a lawyer.

When the accused asked what would happen if he did not do it, he was told that he had not beencleared and they wanted to clear him as a suspect. He signed the consent. [65] The trial judge held that the accused had given an express, informed and voluntary waiver of his Charter rights beforeagreeing to provide a sample of his saliva for DNA analysis. The Ontario Court of Appeal upheld the decision of the trial judge.

Theaccused had given his express written consent, there was nothing ambiguous in the language of the consent form, it was voluntary, therewas no unfair or oppressive police conduct, he knew that he did not have to give the sample, and he knew that he was a suspect in theinvestigation of three serious sexual assaults. Finally, he knew that he could speak with counsel before deciding whether to give thesample. [66] In the case at bar, Michael Heinricks signed a consent form authorizing Corporal Lacroix to take bodily substances from himfor forensic DNA analysis.

The form clearly indicated that he was being investigated for the offences of sexual assault (s. 271) andsexual interference (s. 151). While the form did not indicate the name of the complainant, the date of the alleged offences or where thecomparative bodily substances were found, I believe that Mr. Heinricks was fully aware of the ongoing investigation for which he wasbeing asked to provide a DNA sample. He had spoken with Detective Curle within one month of the incident allegedly occurring. TheAccused was in Calgary at the time and it appears that his visit to Edmonton was brief.

He knew Detective Curle was from Edmontonand he agreed to meet with Detective Curle at police headquarters in Calgary as this matter had been, in his words, “hanging over myhead”. He was told by Sergeant Lacroix that the request for the DNA analysis was from the Edmonton police who also provided theconsent form. He asked Sergeant Lacroix for the name and number of the officer in Alberta. There is no suggestion or indication that hewas a suspect in any offence occurring in Edmonton other than the alleged sexual assault and sexual interference of the complainant inthis case.

When he asked Sergeant Lacroix about “sexual interference”, he was told that it was “in regards to a youth, a person underage”. He did not ask any further questions relating to the charges or what they related to. In my view, Mr. Heinricks knew precisely thejeopardy he was in at the time.

[ 67 ] I would note that while there was an exchange between Sergeant Lacroix and Mr. Heinricks where Mr. Heinricks refers to “ information - the officer in Alberta, I don ’ t even know ” , I am satisfied from the context that the only information he was unaware of at that time was the name and phone number of the officer in Alberta. He knew all of the information necessary to make an informed decision as to whether to voluntarily provide a blood sample.

He was not seeking any information other than the name and number of the officer. [ 68 ] The consent form clearly indicated that the bodily substances seized and subjected to the forensic DNA analysis may produce evidence of criminal offences and that he may be arrested, charged and prosecuted. It indicated that the results of the DNA analysis may be used as evidence in criminal proceedings against him and that he was under no obligation to consent to the taking of the substances for a forensic DNA analysis.

The form clearly stated that he could withdraw his consent at any time prior to and during the taking of the substance and clearly indicated his rights to counsel. [ 69 ] Before formally signing the consent form in two places, the form was also read to Mr. Heinricks by Sergeant Lacroix. [ 70 ] In my view, it is clear that the first five factors set out in Wills that the Crown must establish for the application of the waiver doctrine to apply have been established in this case. The sixth factor requires that the accused be aware of the potential consequences of giving the consent.

In particular, the accused must appreciate in a general way what his position is with respect to the ongoing police investigation. He must understand that if consent is given, the police may use any material retrieved by them in a subsequent prosecution. [ 71 ] In Wills , there was an innocent misrepresentation as to the use that would be made of the breathalyzer test results. There was no such misrepresentation, innocent or otherwise, made to Mr.

Heinricks in this case. [ 72 ] In Borden , the police engaged in an active deception of the accused by suggesting that the sample of bodily substances taken from the accused for DNA analysis would be used to determine whether he was involved in an offence unrelated to the actual one for which he was being investigated. There was no deception of Mr. Heinricks in this case. [ 73 ] In Backhouse , the accused was misinformed as to the consequences of the gunshot residue test. There was no such misinformation provided to Mr. Heinricks in this case. [ 74 ] Mr.

Heinricks knew that the police were investigating the sexual assault and sexual interference of K.B.. As was the case in Nicholas regarding one of the alleged assaults, the precise date of the alleged offence was not on the consent form. However, I am satisfied that Mr. Heinricks knew precisely which investigation the police were engaged in when he was asked to provide a sample of his blood and consented to providing that sample.

Again, he had spoken to Detective Curle from Edmonton within one month of the alleged incident, acknowledged to Detective Curle at that time that the matter had been hanging over his head, agreed to meet with Detective Curle in Calgary (though he failed to appear), and knew that the sample he agreed to provide in Penticton was requested by the Edmonton police. He knew the name of the complainant, the approximate date of the alleged offence and where it had occurred. [ 75 ] The Accused ’ s consent in this case was an informed consent in all meaningful ways.

He knew he was a suspect in the investigation of a sexual assault and sexual interference of K.B. and that the sample requested was in relation to that exact investigation. Again, he knew the precise jeopardy facing him. [ 76 ] In Palade , the accused signed a consent form after his apartment was already searched and he was also told that if he did not consent, the police would obtain a warrant. In this case, the seizure of blood from Mr.

Heinricks was not done until he had signed the consent form. [ 77 ] There was evidence that Patricia Heinricks, Michael Heinricks ’ mother, was told by Corporal Lange to tell Mr. Heinricks to attend at the RCMP detachment in Penticton and that if he did not do so, a warrant would be obtained. There was no evidence as to what Patricia Heinricks did say to Michael Heinricks though Mr. Heinricks must have been aware of the possibility of a warrant being issued

as he asked Sergeant Lacroix “ to call and make sure there ’ s no warrant put out for this ” . However, there is no evidence as to what impact, if any, this might have had on Mr. Heinricks ’ attendance at the Penticton RCMP office or on his decision to “ voluntarily ” provide a blood sample. A warrant was issued to obtain a blood sample from Mr. Purchase and Mr. Heinricks knew of this. [ 78 ] Glass J. said that it was clear that the accused in Palade thought that it was futile to refuse to consent to allow the police to search but there is no such evidence in this case.

I am not satisfied from the evidence in this voir dire that the prospect of a warrant being issued operated to deprive Mr. Heinricks of his free will in volunteering to provide a blood sample for DNA analysis. [ 79 ] The burden is on the Crown to establish the six factors set out in Wills on a balance of probabilities. I am satisfied that the Crown has proven on a balance of probabilities that Mr. Heinricks gave an informed, express and voluntary consent to the taking of his blood sample for DNA analysis.

His consent was voluntary and not the product of any police coercion or oppression or other external conduct negating his freedom of choice. He gave his consent knowing the significance of doing so and the use to which the police would be able to make of a DNA analysis of his blood sample. He knew the jeopardy he was facing. There was no infringement of Mr. Heinricks ’ s. 8 Charter right to be secure against unreasonable search or seizure. I am satisfied on a balance of probabilities that the sample was voluntarily given by Mr. Heinricks with consent. 3.

Exclusion of Evidence [ 80 ] In the event that it is later held that Mr.

Heinricks ’ s. 8 Charter right to be free from a reasonable search or seizure was infringed, then it would be necessary to consider whether the evidence should be excluded under s. 24(2) of the Charter : 24(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard, to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 81 ] In Grant , the Supreme Court of Canada directed that a s. 24(2) analysis requires the Court to assess and balance the effect of admitting the evidence on society ’ s confidence in the justice system having regard to : 1. the seriousness of the breach; 2. the impact of the breach on the protective interests of the accused; and 3. society's interest in the adjudication of the case on its merits. 1. the seriousness of the breach [ 82 ] This factor requires a consideration of the severity or deliberateness of the police misconduct. [ 83 ] If either or both the failure to advise Mr.

Heinricks of the date of the alleged offences or the advice given to his mother that a warrant would be issued if Mr. Heinricks did not attend the RCMP detachment in Penticton were breaches of his s. 8 Charter rights or vitiated the voluntariness of his consent, then I do not believe them to be serious. [ 84 ] There is no evidence to suggest that Mr. Heinricks could have been confused, in any way, as to the reasons why a blood sample was being sought from him.

He had been contacted within a month of the alleged offences by Detective Curle in Edmonton and he knew when he went into the RCMP detachment in Penticton that the matter being investigated was the alleged incident involving the complainant in Edmonton. That is, he knew that it was in relation to an alleged sexual assault and sexual interference in Edmonton involving the complainant, K.B.

[ 85 ] There is no evidence as to precisely what Patricia Heinricks might have said to Michael Heinricks about the warrant but it is clear that nothing was said directly to him by the police. There is no evidence of trickery or attempts to mislead the accused. [ 86 ] If there was a breach of s. 8, the alleged police misconduct was neither severe nor deliberate. I conclude that any breach was not serious. 2. the impact on the accused [ 87 ] This factor requires the Court to consider the extent to which the breach actually undermined the accused’s interests protected by s. 8 of the Charter .

The Supreme Court in Grant clarified that bodily evidence obtained contrary to the Charter is not subject to a near-automatic exclusionary rule. A flexible, multi-factored approach to the admissibility of the evidence is required. Plucking a hair from the suspect's head may not be intrusive, and the accused's privacy interest in the evidence may be relatively slight. On the other hand, a body cavity or strip search may be intrusive, demeaning and objectionable.

The trial court must consider the interests of privacy, bodily integrity and human dignity. [ 88 ] The Supreme Court noted at paras. 109 to 111 that at one end of the spectrum of seizure of bodily substances, one finds the forcible taking of blood samples or dental impressions. At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology. The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.

In general, where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. Where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. [ 89 ] The blood sample in this case involves a process which is necessarily intrusive of the accused ’ s privacy, bodily integrity and dignity.

However, the compulsion here, if there was any, occurred in obtaining the accused ’ s consent. The sample was not obtained through physical force or restraint. The process itself, while intrusive, is not significant. While the DNA analysis does reveal private information, the taking of the blood sample is a routine process to which we are all exposed in the medical context. It does not involve any significant violation of dignity. [ 90 ] It is also noteworthy in this case that the complainant was able to identify the two alleged perpetrators, one of whom was Mr. Heinricks.

While the outcome of a warrant application might not have been guaranteed, it was likely that the police would have been successful in obtaining a warrant had the accused refused to provide a sample. They did get a warrant for a sample of Mr. Purchase’s blood and presumably the same information used to obtain that warrant would be used to obtain a warrant for a sample of Mr. Heinricks' blood. While it is true that the complainant’s last recollection in the vehicle placed Mr. Purchase in the backseat with her and Mr.

Heinricks as the driver, it is also a fact that she blacked out and has no further recollection of what occurred in the car or before she first regained consciousness. In my view, the evidence of her last recollection of the seating arrangements in the car would not have prevented the granting of a warrant relating to Mr.

Heinricks. [ 91 ] For the foregoing reasons, I find that if there was a breach of s. 8, the impact on the accused was minimal. 3. society ’ s interest in an adjudication on the merits [ 92 ] The Supreme Court in Grant acknowledged the general expectation of society that criminal allegations will be adjudicated on their merits and posed the third line of enquiry relevant to the s. 24(2) analysis as whether the truth seeking function of the criminal trial process will be better served by admission of the evidence or by its exclusion (para. 79).

Some of the factors to be considered include the reliability of the evidence, the importance of the evidence to the prosecution ’ s case and the seriousness of the offence ( see also R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494 ). [ 93 ] The failure to prosecute a serious charge may have an impact on how people view the justice system.

However, it is the long term repute of the justice system that is the focus of this analysis and while the public has a high interest in seeing a determination on the merits of a serious offence, it also has a vital interest in having a justice system that is above reproach ( Grant at para. 84 ).

[ 94 ] Bodily samples are conscriptive and in such cases, the privacy interests of the accused and the fundamental principles of trial fairness and protection against self-incrimination must be jealously guarded. This is particularly so where there is a danger that the evidence could result in a wrongful conviction. However, the evidence adduced by a DNA analysis is notoriously accurate.

In fact, DNA analysis is often used to set aside wrongful convictions. [ 95 ] As mentioned above, the Supreme Court in Grant at para. 105 held that equating statements and bodily samples under the umbrella of “ conscription ” risks erasing relevant distinctions and compromising the ultimate analysis of systemic disrepute.

The pre-trial right to silence under s. 7, the right against testimonial self-incrimination in s. 11(c), and the right against subsequent use of self-incriminating evidence in s. 13 which inform the treatment of statements under s. 24(2) do not apply coherently to bodily samples, which are not communicative in nature, weakening self-incrimination as the sole criterion for determining their admissibility. [ 96 ] Unlike compelled statements, DNA evidence is generally reliable and therefore the public interest in having a case adjudicated on its merits will usually favour admission in cases involving bodily samples. [ 97 ] In this case, I have found that the breaches, if they occurred, were not serious and their impact on the accused was minimal.

DNA evidence is extremely reliable, the evidence is important to the prosecution ’ s case. The offences of sexual interference and sexual assault of a 13-year old are extremely serious offences.

Society has an interest in the adjudication of this case on its merits. 4. conclusion on admissibility of the evidence. [ 98 ] Considering the three factors directed by Grant , I have concluded that the combined effect of the seriousness of the breaches, their impact on the protective interests of Michael Heinricks and society’s interest on the adjudication of this case on its merits all weigh in favour of the admission of the evidence into these proceedings.

The admission of the DNA evidence would not bring the administration of justice into disrepute nor cause a reasonable member of the public to question the integrity of the justice system. Accordingly, and in the event that there was a breach of Mr. Heinricks’ s. 8 Charter rights, I would have found that the evidence was admissible. V. Conclusion [ 99 ] The standard of proof required of the Crown to establish the voluntary and informed consent of an accused to the seizure of a bodily sample is on a balance of probabilities.

The Crown has established on a balance of probabilities that Michael Heinricks provided his voluntary and informed consent to the taking of a bodily sample for DNA analysis. Consequently, his s. 8 Charter right to be secure against unreasonable search and seizure was not infringed. [ 100 ] In the event that it is found that his s. 8 Charter right was infringed, then the admission of the DNA evidence would not bring the administration of justice into disrepute and is admissible. Heard on May 25, 26, 27, & 30 and June 2, 3, & 6, 2011. Dated at the City of Edmonton, Alberta this 7 th day of June 2011.

Eric F. Macklin J.C.Q.B.A. Appearances: Mr. Mark Huyser-Wierenga and Ms. Carole Godfrey for the Respondent Crown Ms. Deborah Hatch Gunn Law Group for the Applicant _______________________________________________________ Corrigendum of the Reasons for Judgment on Voir Dire of The Honourable Mr. Justice Eric F. Macklin _______________________________________________________ A Restriction on Publication notice has been added on page 1.