R v Admasu, 2021 ABQB 142

Court of Queen’s Bench of Alberta Citation: R v Admasu, 2021 ABQB 142 Date: 20210223 Docket: 160893426Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Dagmawi Abebe Admasu Accused _______________________________________________________ Ruling on Voir Dire (Charter Notice #4) of the Honourable Mr. Justice John T. Henderson _______________________________________________________ 1.

Overview [ 1 ] On November 9, 2016, Judge Moher, a Judge of the Provincial Court of Alberta, granted a DNA Warrant (DNA Warrant #1) under s 487.05(1) of the Criminal Code authorizing a member of the Edmonton Police Service (EPS) to take samples of bodily substances from Mr. Admasu for the purpose of DNA analysis. DNA Warrant #1 was granted based on evidence contained in an Information to Obtain sworn November 9, 2016, by Det. Michelle Greening (the November 2016 ITO). DNA Warrant #1 was executed on November 17, 2016, at the Edmonton Remand Centre where Mr.

Admasu was being detained on the present charges. [ 2 ] On June 11, 2020, a second DNA warrant was granted by Judge Moher under s 487.05(1) (DNA Warrant #2) based on the evidence contained in an Information to Obtain sworn by Det. Greening on June 11, 2020 (the June 2020 ITO). The expressed reason for seeking DNA Warrant #2 was that the manner in which DNA Warrant #1 was executed “might be perceived as a charter concern in trial”. [ 3 ] DNA Warrant #2 was executed at the Edmonton Remand Center on July 30, 2020.

[ 4 ] On January 22, 2021, a third DNA warrant was granted by Judge Moher under s 487.05(1) (DNA Warrant #3) based on the evidence contained in an Information to Obtain sworn by Det. Greening on January 22, 2021 (the January 2021 ITO). [ 5 ] It should be noted that DNA Warrant #3 was granted 10 days after the Defence submitted its motion brief that provided detailed argument as to why Mr. Admasu’s rights under s 10(

b) had been violated in relation to the execution of DNA Warrant #2. Furthermore, DNA Warrant #3 was sought and obtained one day after the Crown filed its brief responding to the s 10(

b) issue. It is apparent that a decision was made to seek DNA Warrant #3 because of concerns that Mr. Admasu’s rights may have been violated in relation to the execution of DNA Warrant #2 and the risk that this might have posed in relation to the admissibility of the DNA analysis arising from the execution of DNA Warrant #2. [ 6 ] DNA Warrant #3 was executed at the Edmonton Remand Center on January 25, 2021. [ 7 ] In this voir dire , the Defence argues that DNA Warrant #3 was only sought because members of the EPS had “bungled” the execution of DNA Warrant #1 and DNA Warrant #2.

For this reason, the Defence argues that DNA Warrant #3 amounts to an overseizure and was not minimally invasive. Therefore, the execution of DNA Warrant #3 amounted to an unreasonable search and seizure that violated Mr. Admasu’s rights under s 8 of the Charter . The Defence seeks an order under s 24(2) excluding all evidence that was obtained as a result of the execution of DNA Warrant #3. [ 8 ] For the reasons that follow, I conclude that Warrant #3 was properly granted and that the execution of the warrant did not constitute and unreasonable search and seizure and thus did not violate Mr.

Admasu’s rights under s 8 of the Charter. 2. Background [ 9 ] Mr. Admasu is charged with first degree murder, aggravated assault and discharging a firearm with intent. [ 10 ] The Crown alleges that at or about 9:00 pm on July 23, 2016, xxxxxxxxxxxx Daniel Holly left an apartment building in north Edmonton and began walking toward their parked vehicle. As they were doing so, xxxxxxxxxxxxxxx approached and started shooting xxxxxxxx at them. Mr. Holly sustained multiple gunshot wounds to his head and torso. xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx. Mr.

Holly died a short time later in hospital. [ 11 ] The Crown alleges that Mr. Admasu was one of xxxxxxxx shooters. [ 12 ] The Crown further alleges that xxxxxxxx shooters fled the scene in a xxxxxxxxxxxxx xxxxxxxx mini-van xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx Some time later, police saw a van that matched this description, which led to a high-speed police pursuit. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx . [ 13 ] The Crown alleges the Mr.

Admasu was one of the occupants of the van xxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [ 14 ] During the pursuit, the van stopped and the occupants fled on foot. xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [ 15 ] DNA samples were obtained xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx.

Police sought three separate warrants under s 487.05 of the Criminal Code and obtained samples of Mr. Admasu’s bodily substances on three separate occasions. The Crown seeks to tender the results of the DNA analysis based on the samples of bodily substances taken from Mr. Admasu arising from the execution of DNA Warrant #3. 3. Issues [ 16 ] The only issue in this voir dire is whether Mr. Admasu’s rights under s 8 of the Charter were violated when police took samples of his bodily substances for the third time as members of the EPS executed DNA Warrant #3? 4.

Analysis [ 17 ] The Defence argues that the only reason police felt that they needed to seek and obtain DNA Warrant #3 was that they had a casual disregard for their obligations to respect Mr. Admasu’s rights that are guaranteed by 10(b). Simply put, the Defence argues that police “bungled” the execution of DNA Warrant #1 and DNA Warrant #2 because they failed to respect or were oblivious to Mr. Admasu’s s 10(

b) rights. [ 18 ] The Defence asserts that Mr. Admasu had a reasonable expectation of privacy in relation to his bodily integrity and, as a result, he has standing to challenge the seizure, notwithstanding that DNA Warrant #3 authorized the taking of the bodily substances. The Crown concedes that Mr. Admasu had a reasonable expectation of privacy. [ 19 ] Mr. Admasu argues that taking the samples in the unusual circumstances of this case amounts to an unreasonable search and seizure and thus a violation of s 8 of the Charter . [ 20 ]

Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search or seizure”.

[21] In circumstances where the search and seizure consist of taking samples of bodily substances for DNA analysis, police willnot violate s 8 of the Charter if taking the samples of bodily substances was authorized by law, the law itself is reasonable, and thesearch is carried out in a reasonable manner: R v Collins, (SCC), [1987] 1 SCR 265 at 278; R v Caslake, (SCC), [1998] 1 SCR 51 at para 10. a. Was the Seizure of the Bodily Substances Seized Authorized by Law? [22] Samples of bodily substances were taken from Mr. Admasu on January 25, 2021, pursuant to a DNA warrant granted by anissuing judge.

This warrant was authorized by s 487.05 of the Criminal Code. As a result, both the search and seizure were authorized bylaw. This is not contested by the Defence. b.

Are the DNA Provisions of the Criminal Code Reasonable? [23] The Supreme Court has concluded that the DNA provisions in the Criminal Code are constitutional because they strike anappropriate balance between the public interest in effective criminal law enforcement for serious offences and the rights of individuals tocontrol the release of personal information about themselves, as well as their right to dignity and physical integrity: R v B(SA), 2003SCC 60, at para 38, 43 and 51 to 52, [2003] 2 SCR 678. This is not contested by the Defence. The law is reasonable. c.

Were the Bodily Substances Taken in a Reasonable Manner? [24] The focus of the Defence submissions is that Mr. Admasu’s bodily substances were not taken in a reasonable manner becausethe execution of DNA Warrant #3 was an overseizure that was not minimally invasive. Therefore, the execution of DNA Warrant #3amounted to an unreasonable search and seizure that violated Mr. Admasu’s rights under s 8 of the Charter. i. Criminal Code Prescribes the Manner of Taking Samples [25] The manner in which a DNA warrant can be executed is mandated by ss 487.06 and 487.07 of the Criminal Code: B(SA) atparas 7 to 9.

This can be summarized as follows: 1) Duty to Inform – s 487.07(1) requires that before executing a DNA warrant police must advise the subject of the contents of theDNA warrant, the means by which the samples of the bodily substances will be taken, the purpose of taking the sample, the authority ofthe police to use reasonable force to take the samples and the fact that the analysis of the samples may be used in evidence against thesubject.

These provisions are designed to clearly draw to the attention of the suspect the circumstances under which the samples ofbodily substances will be taken. 2) Detention of the Subject – s. 477.07(2) permits detention of the subject for the purpose of taking the samples of bodily substances,thus triggering the right to counsel under s 10(

b) of the Charter. 3) Requirement to Respect Privacy – s 487.07(3) requires that the person who is authorized to take the samples of bodily substancesdo so in a manner that respects the subject’s privacy and that it is “reasonable in the circumstances”. 4) Ways in Which Samples Can be Collected – s. 487.06 provides for three distinct ways in which samples of bodily substances can betaken.

Those are: • the plucking of individual hairs from the person, including the root sheath; • the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or • the taking of blood by pricking the skin surface with a sterile lancet. [26] Parliament has recognized that the execution of a DNA warrant can represent an intrusion into a subject’s privacy.

The DNAprovisions of the Criminal Code, including ss 487.06 and 487.07 are designed to ensure that the process is minimally invasive and thatan appropriate balance is achieved between the rights of the subject and the need to permit effective law enforcement in relation toserious offences. The statutory framework has alleviated any concern that the collection of samples of bodily substances pursuant to aDNA warrant constitutes an intolerable affront to the physical integrity of the person.

The Supreme Court has concluded that the degreeof offence to the physical integrity of the subject is relatively modest: B(SA) at paras 44 and 47. This is one of the reasons that the DNAprovisions are constitutionally compliant. [27] The taking of samples of bodily substances for the purpose of DNA analysis can also give rise to informational privacyconcerns. Parliament has specifically addressed these concerns in ss 487.04 to 487.09, which mandate that samples collected pursuant toa DNA warrant may be used for a limited purpose: B(SA) at para 48.

Furthermore, the DNA analysis is conducted solely for forensicpurposes and does not reveal any medical, physical or mental characteristics; its only use is the provision of identifying information thatcan be compared to an existing sample: B (SA) at para 49. [28] I conclude that the DNA provisions of the Criminal Code were complied with in connection with the execution of DNAWarrant #3. Mr. Admasu was given a copy of DNA Warrant #3 and advised of the purpose for which the samples were being collected,thus complying with s 487.07(1).

He was given a copy of and was read the “DNA Warrant Advisory” which explained that he had theright to counsel. Mr. Admasu asserted this right and arrangements were made for him to speak by telephone to counsel of choiceprivately. This complied with the s 10 obligations on detention and satisfied the requirements of s 487.07(2). Finally, the bodilysubstances were obtained by means of taking blood by pricking Mr. Admasu’s skin with a sterile lancet, a procedure specificallycompliant with s 487.06. There is nothing in the evidence to suggest that there was any unreasonable intrusion into Mr.

Admasu’sprivacy. [29] For these reasons, I conclude that the samples of Mr. Admasu’s bodily substances were, prima facie, taken in a reasonable

manner. ii. Position of the Defence [30] The Defence does not contest that s 487.06 and s 487.07 were complied with in relation to the execution of DNA Warrant #3. [31] Instead, the Defence submits that despite compliance with the provisions of the Criminal Code, the samples of Mr. Admasu’sbodily substances were not taken in a reasonable manner because this was the third time that substances were taken from him.

TheDefence submits that multiple DNA warrants are not authorized by the Criminal Code and this situation was simply not contemplated byB(SA). [32] The Defence submits that the samples taken by the execution of DNA Warrant #3 constitutes an overseizure and the processwas not minimally invasive. This is because the third set of samples of bodily substances were necessary for no reason other than thedisregard police had for Mr. Admasu’s Charter rights when the first two DNA Warrants were executed.

On this basis, the Defencesubmits that the DNA samples taken on January 25, 2021, were taken in an unreasonable manner, thus giving rise to a breach of s 8 ofthe Charter. iii. Was the Execution of DNA Warrant #3 an Overseizure? [33] The concept of “overseizure” is simply an acknowledgement that police are bound by the terms of a warrant and they may notgo beyond the scope of what is authorized by the warrant.

Whatever is seized beyond that specifically authorizes constitutes an“overseizure”: R v Church of Scientology of Toronto (1997), (ON CA), 116 CCC (3d) 1 (OntCA). [34] By way of illustration, the Defence refers me to R v Khan (2005), 133 CRR (2d) 29, , [2005] OJ No 3486,[2005] CarswellOnt 8295 (SC), where it was noted that a description of what is to be searched for must not be so broad and vague as tothe give the searchers carte blanche to rummage through the premises of the target.

In Khan, police seized hundreds, if not thousands, ofdocuments that clearly fell outside of the time frame listed in the offence charged, and many of these documents did not relate to thatinvestigation. At para 68, the Court concluded that this type of search was an “overseizure”. [35] An “overseizure” is related to the concept of a warrant that is “overbroad”. For example, in R v Marek, 2016 ABQB 18,police obtained three search warrants authorizing the search of multiple electronic devices.

On the execution of the warrants, policeseized records containing the accused’s highly personal information from the computers going back for more than 10 years. JusticeMoreau, as she then was, concluded at para 147 that the failure of police to apply a temporal filter resulted in the search and seizurebeing “overbroad”, thus violating the accused’s rights under s. 8. [36] The Defence also refers me to R v Marakah, 2014 ONSC 7580, where the accused was charged with a number of seriousfirearms offences. Police obtained a number of search warrants, including a warrant for the search of the accused’s residence.

Anappendix to the Warrant identified the scope of the permitted search which the Court noted to be “virtually limitless”. In finding that thewarrant was “overbroad”, the Court said (at para 62-3): The investigation involved in this case was not complex. The allegations were straightforward and the time period over which theyoccurred was relatively short. Nonetheless, there were, in my view, no meaningful limitations on the items to be searched for and seizedin Mr. Marakah's residence either by time, by offence, or by offender.

The police were not confined to search for or seize itemsconnected to firearms or ammunition or any association between the alleged conspirators. By authorizing the search of all documents or records of any form that evidence an association or non-association with the premises,without limitation to time, the Warrant authorized the search and seizure of virtually everything in Mr. Marakah's apartment. It followsthat the Warrant was overly broad. [37] I conclude that the concept of “overseizure” has no application to the facts that are before me. DNA Warrant #3 identifiesspecifically what may be seized from Mr.

Admasu. The warrant authorized precisely what s 487.05 permits - seize samples of bodilysubstances. That is precisely what police did when the warrant was executed. [38] I conclude that DNA Warrant #3 was not “overbroad” and the seizure of bodily substances on January 25, 2021 was not an“overseizure”. iv.

Was the Seizure Minimally Intrusive? [39] The Defence does not contest the manner in which the samples of bodily substances were taken on January 25, 2021.However, the Defence argues that taking 3 sets of samples of bodily substances over a period of more than four years is not minimallyintrusive, particularly when the samples were required only because of “bungling” by police on earlier attempts. [40] The Defence argues that there is nothing in the Criminal Code that authorizes police to seek multiple DNA warrants inrelation to the same subject for the purposes of the same investigation. [41] In response, the Crown notes that there is nothing in the Criminal Code that prohibits the granting of more than one DNAwarrant in a single case.

The Crown argues that the decision to grant a DNA Warrant is discretionary and that the discretion is to beexercised by the Provincial Court Judge who hears the application for the warrant and that this Court must not interfere with the exercise

of that discretion. [42] Neither the Crown nor the Defence were able to provide any authority which either supports or prohibits multiple DNAwarrants. [43] The Criminal Code provides very little guidance as to whether multiple DNA Warrants for investigative purposes arepermissible in relation to the same subject for the purpose of prosecution of the same offence.

The Code does however refer to multipleDNA samples in other contexts that are not directly relevant to the issue to be decided: • Subsection 487.05(1) specifically contemplates that a DNA warrant may permit multiple samples of DNA to be obtained from anindividual. However, this relates to the number of samples taken in accordance with the warrant granted under s 487.05(1) and does notspeak to the issue of multiple warrants. •

Section 487.091 permits an application for the collection of “additional” bodily substances in relation to orders for the collectionof DNA samples pursuant to s 487.051 (following conviction in relation to a primary designated offence) and s 487.055 (in relation topersons serving sentences for certain historical offences).

The “additional” samples pursuant to s 487.091 have no application toinvestigative DNA warrants under s 487.05(1), but it is at least arguable that this may be a signal that Parliament intended that multipleDNA warrants are not permissible because the Criminal Code does not contain a procedure similar to s 487.091 in relation to s 487.05(1)DNA warrants.

Conversely it is possible that Parliament simply chose not to include a provision for multiple DNA warrants because itdid not intend to constrain the investigation of serious criminal offences and because the discretion granted to the Provincial Court Judgewhen considering an application for the DNA warrant provides sufficient protection to the privacy interests of the subject and his or herCharter protected interests. [44] Ultimately whether police agencies can seek multiple s 487.05(1) warrants in relation to the same subject in relation to theinvestigation of the same offence will require a consideration of the proper

interpretation of the DNA provisions of the Criminal Code.The modern approach to statutory

interpretation is explained in Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR27 at para 21. The words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously withthe scheme of the Act, the object of the Act, and the intention of Parliament. [45] The Alberta Court of Appeal in Alberta v ENMAX Energy Corporation, 2018 ABCA 147, also emphasized the importance ofcontext in statutory

interpretation and, specifically, the need to consider the purpose of the statutory provision in the relevant context. The Court explained (at para 70): The modern rule of statutory

interpretation requires courts to take a unified textual, contextual and purposive approach to this task: RuthSullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2014) [Sullivan] at 7-8. A court must considernot only the textual wording of the statutory provision in dispute but also the purpose of that provision and all relevant context.

Thatincludes the legislative scheme of which the provision forms a part. [46] The purpose of the DNA provisions of the Criminal Code, as described by the Supreme Court in B(SA), is to provide abalance between society’ interest in solving serious crime and the interest of accused persons to have privacy and to be left alone. At para51, the Court explained that the state's interest in the DNA warrant scheme is a significant one. Effective law enforcement benefitssociety as a whole.

Subsumed under the larger head of "law enforcement" is the interest in arriving at the truth in order to bring offendersto justice and to avoid wrongful convictions.

At para 158, the Court concluded that, on balance, the law provides for a search and seizureof DNA materials that is reasonable and, in light of the high probative value of forensic DNA analysis, the interests of the state overridethose of the individual. [47] For these reasons I conclude that s 487.05(1) should be interpreted broadly and in a way that does not prohibit multiple DNAwarrants in relation to the same suspect in the investigation of the same offence.

Whether the subsequent DNA warrants should begranted is in the discretion of the authorizing judge who considers the application for the subsequent DNA warrant or warrants. [48] As a result, I conclude that the execution of DNA Warrant #3 was minimally intrusive. v. DNA Warrant #3 was Executed in a Reasonable Manner [49] I conclude that DNA Warrant #3 was executed in a reasonable manner. The requirements of s 487.06 and s 487.07 wereproperly complied with. DNA Warrant #3 was not overbroad and there was no overseizure.

Furthermore, the execution of DNA Warrant#3 was minimally intrusive. [50] The application for DNA Warrant #3 was quite appropriately submitted to Judge Moher, who had granted the two earlierDNA warrants. Judge Moher had much to consider when deciding whether to grant DNA Warrant #3. She was aware that the earlierwarrants had been granted. Furthermore, the June 2020 ITO and the January 2021 ITO disclosed why police felt that they needed furtherDNA warrants.

The January 2021 ITO expressly disclosed that a pre-trial motion was scheduled to be heard on February 22, 2021, inrelation to allegations that there had been a breach the s 10(

b) Charter rights. Judge Moher was required to consider the application withan awareness that constitutional rights were at stake, and in this way stand as a guardian of the law and of the constitutional principles: Rv Araujo, 2000 SCC 65 , [2000] 2 SCR 992 at para 29. [51] Judge Moher was required to assess the evidence before her as well as the factors raised in s 487.05(2) in deciding whethershe would exercise her discretion to grant the third DNA warrant. One of the factors that she was required to consider was the “nature ofthe offence and the circumstances of its commission”.

The ITOs demonstrated that this is a very serious case involving allegations offirst-degree murder in very troubling circumstances. Judge Moher was also required to determine whether granting the third DNAwarrant was “in the best interests of the administration of justice”. She also had a discretion to require that the application be on notice tothe Accused and to hear submissions from counsel: B(SA) at para 56. [52] Judge Moher exercised her discretion to grant DNA Warrant #3. I conclude that this was a legitimate exercise of judicial

discretion. [ 53 ] In these circumstances, I conclude that DNA Warrant #3 was properly granted and that the execution of the warrant complied with ss 487.06 and 487.07. Thus, the manner in which the samples of bodily substances were taken was not unreasonable. 5. Conclusion [ 54 ] I conclude that DNA Warrant #3 was properly granted by the issuing judge and that Mr.

Admasu’s s 8 Charter rights were not violated in relation to the taking of the samples of his bodily substances pursuant to the DNA warrant, despite the fact that this was the third DNA warrant that police had obtained in relation to their investigation of the allegations against Mr. Admasu. Heard on the 22 th day of February, 2021. Dated at the City of Edmonton, Alberta this 23 rd day of February, 2021. John T. Henderson J.C.Q.B.A. Appearances: Anders N. Quist and Meghan Rohatyn for the Crown Clayton Rice, Q.C. and Tania Shapka for the Accused