R v Admasu, 2021 ABQB 228

Court of Queen’s Bench of Alberta Citation: R v Admasu, 2021 ABQB 228 Date: 20210326 Docket: 160893426Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Dagmawi Abebe Admasu Accused _______________________________________________________ Ruling on Voir Dire - s 24(2) of the Honourable Mr. Justice John T. Henderson _______________________________________________________ 1. Overview [ 1 ] On February 26, 2021, I found that Mr. Admasu’s rights under s 10(

b) of the Charter had been violated when members of the Edmonton Police Service (EPS) executed a DNA warrant at the Edmonton Remand Centre on July 30, 2020: R v Admasu , 2021 ABQB 149 . [ 2 ] This was the second of three DNA warrants that had been obtained in relation to this investigation. All three of the warrants were granted by Judge Moher, a Judge of the Provincial Court of Alberta. The particulars of the DNA warrants can be summarized as: • DNA Warrant #1 was 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. • DNA Warrant #2 was based on the evidence contained in an Information to Obtain sworn by Det. Greening on June 11, 2020 (theJune 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”. DNA Warrant #2 was executed at the Edmonton Remand Center on July 30, 2020. • DNA Warrant #3 was based on the evidence contained in an Information to Obtain sworn by Det. Greening on January 22, 2021(the January 2021 ITO).

The expressed reason for seeking DNA Warrant #3 was “Due to other possible concerns with the execution ofthe second DNA warrant” and that a pre-trial motion was scheduled for February 22, 2021 alleging a breach of s 10(b). DNA Warrant#3 was executed at the Edmonton Remand Center on January 25, 2021. [3] Following receipt of my reasons, the Crown advised that it would not tender any evidence arising from the execution ofDNA warrant #2. However, the Crown advised that it will seek to tender evidence of the results of the forensic DNA analysis of thesamples collected during the execution of DNA Warrant #3. [4] Mr.

Admasu argues that pursuant to s 24(2) of the Charter, all evidence flowing from the execution of DNA Warrant #3should be excluded from evidence because to admit such evidence would bring the administration of justice into disrepute. [5] For the reasons that follow, I conclude that the forensic DNA analysis of the samples taken from Mr. Admasu during theexecution of DNA Warrant #3 should not be excluded from evidence despite the violation of Mr. Admasu’s rights under s 10(

b) of theCharter. 2.

Application of s 24(2) of Charter [6] Section 24(2) provides that ... when a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by thisCharter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute. [7] As was explained in R v Beaver, 2020 ABCA 203 at para 13, a court must be satisfied of two things before excludingevidence under s 24(2): first, that the evidence was “obtained in a manner” that infringed or denied any of the rights or freedomsguaranteed by the Charter; and second, that admitting the evidence would bring the administration of justice into disrepute: R v Wittwer,2008 SCC 33 at para 19; R v Strachan, (SCC), [1988] 2 SCR 980 at 1005-1006. [8] The first part of the test is referred to as the “threshold requirement” of s 24(2): R v Plaha (2004), (ONCA), 189 OAC 376, 188 CCC (3d) 289 at para 44 and R v McSweeney, 2020 ONCA 2 at para 57.

The second part of the s 24(2) testneed not be addressed unless the threshold requirement is established. If the threshold requirement is met, then the second part of the24(2) test is assessed in accordance with the framework established by the Supreme Court of Canada in R. v Grant, 2009 SCC 32. a.

Threshold Requirement – “Obtained in a Manner” [9] The Supreme Court of Canada has adopted a purposive and generous approach when determining whether evidence was“obtained in a manner” that infringed an accused’s Charter rights: R. v Mack, 2014 SCC 58 at para 38; Wittwer at para 19 to 21. [10] The threshold requirement must be approached by focusing on the entire chain of events during which the Charter violationoccurred and the challenged evidence was obtained. There is no requirement for a strict causal connection between the breach and thecollection of the challenged evidence.

Rather, the question is whether a Charter violation occurred in the course of obtaining theevidence: Strachan at para 36 to 46; R v Brydges, (SCC), [1990] 1 SCR 190 at para 19. Thus, the threshold can bemet, in an appropriate case, even where the Charter violation occurred after the discovery of the evidence: R v Pino, 2016 ONCA 389 atpara 48; R v Kenowesequape, 2018 ABQB 135 at para 34. [11] The required connection between the breach and the challenged evidence may be "temporal, contextual, causal or acombination of the three": Wittwer at para 21; Plaha at para. 45.

Thus, a temporal link between the infringement of the Charter and thediscovery of the evidence can be an important factor in the assessment, but this is not determinative. [12] Remoteness is a factor to be considered, not only in relation to the temporal connection but also in relation to the causalconnection R v Goldhart, (SCC), [1996] 2 SCR 463 at para 40. The assessment focuses on the nature of theconnection between the Charter violation and the evidence obtained: Mack at para 38.

Thus, the Court must assess the strength of theconnection between the evidence obtained and the Charter breach: Goldhart at para 40. However, there are no hard and fast rules fordetermining when evidence obtained is too remote from the Charter violation, or for determining whether the connection is too tenuous:Strachan at para 46; R v Lewis, 2019 ABCA 311. [13] In the present case, three DNA warrants were executed during which samples of Mr. Admasu’s DNA were obtained forforensic testing.

The Crown only seeks to tender the results of the testing from the samples obtained through the execution of DNAWarrant #3 on January 25, 2021. [14] Mr. Admasu does not contend that there was a temporal connection between the three DNA warrants or between the breach ofhis s 10(

b) rights on July 30, 2020 and the evidence obtained during the execution of DNA Warrant #3 on January 25, 2021. Instead,Mr. Admasu asserts that the following factors satisfy the requirement that the evidence was obtained in a manner that infringed hisCharter rights:

i. Causal Connection – Mr. Admasu asserts that a causal connection is established because DNA Warrant #3was necessary for only one reason. The reason was that the first two warrants were in jeopardy because of the alleged s 10(

b) violationsin relation to the execution of DNA Warrant#1 and DNA Warrant #2; and ii. Contextual Connection – Mr. Admasu asserts that there is a contextual connection “welding” the threewarrants together as part of the same “course of conduct”. [15] It is not in dispute that the only reason that police sought DNA Warrant #3 was that they were concerned that there had beenearlier breaches of Mr. Admasu’s Charter rights. Police explained as much when they sought DNA Warrant #2 and DNA Warrant #3. Itis significant that DNA Warrant #3 was granted 10 days after the Defence had filed its motion brief detailing how Mr. Admasu’s rightsunder s 10(

b) had allegedly been violated during the execution of DNA Warrant #2. Furthermore, DNA Warrant #3 was sought andobtained one day after the Crown filed its response. [16] It is therefore apparent that police sought to “cure” the earlier Charter breach so that any subsequently obtained evidencewould not be “obtained in a manner” that infringed Mr. Admasu’s Charter rights.

Thus, police were seeking a “fresh start”. [17] In Beaver at para 16, the Court of Appeal described a “fresh start” in the following way” A “fresh start” is often, but need not be, considered in circumstances where some tainted evidence is initially gathered as a result of aCharter breach, after which investigators attempt to sever the link between the original breach and any subsequent evidence.

As statedby Watt, J.A., in Manchulenko [2013 ONCA 543] at paragraph 68: [I]nvestigators may attempt a “fresh start” in order to insulate the second statement from the taint that rendered the earlier statementinadmissible. Where the antecedent taint is a Charter infringement, a fresh start may clearly sever the subsequent statement from theearlier Charter breach.

Ultimately, the sufficiency of the connection between the Charter breach and the subsequent collection of theevidence requires a case-specific factual inquiry to determine whether the post-breach acquired evidence was “obtained in a manner thatinfringed or denied” any enumerated Charter right of the person charged. [citations omitted] [18] Two recent Alberta cases illustrate the application of the “fresh start” principle. In Beaver, the Crown sought to introducestatements made by the two accuseds to police.

These statements were made following a lawful arrest at the police station and after theaccuseds had been provided with their Charter rights. However, the arrests were preceded by an unlawful detention at their home thatresulted in breaches of ss 9, 10(

a) and 10(

b) of the Charter. The trial judge concluded that the arrests of the appellants at the policestation constituted a “fresh start”, such that the earlier breaches were “cured”. In other words, the trial judge concluded that evidence ofthe subsequent confessions was untainted by the earlier breaches. When dismissing the appeal, the Court of Appeal observed that therewas no casual connection, arguably no temporal connection and the context in which the confessions were given was completelydifferent from the initial detention. The post arrest confessions were therefore properly admissible.

I note that an application for leaveto appeal to the Supreme Court of Canada was filed by one of the two accuseds on December 18, 2020 (R v Lambert [2020] S.C.C.A.No. 446). [19] A similar result occurred in R v Love, 2020 ABQB 689 where police attended at the accused’s home to execute a searchwarrant regarding child pornography offences. The accused was not a suspect or a target of the investigation, nor did police have anyhunch that he was involved. Nevertheless, police detained the accused and, without complying with s 10(b), questioned him regardinginternet user names and his email address.

When the accused provided this information, police recognized his email address as being asecondary address related to the offences. At that point police arrested the accused and provided him with his rights under s 10(b). Theaccused then gave a post-arrest videotaped interview. At trial the accused sought to exclude the statements made post-arrest becausethey were linked to the earlier statement. The Crown conceded the Charter violation in relation to the initial detention and did not seekto introduce the statements of the accused during the first interview.

In conducting a “fresh start” analysis the trial judge observed atpara 134 that the mere provision of the accused’s 10(

b) rights post-arrest did not automatically sever the earlier breach from the evidencesubsequently gathered. The trial judge also noted the temporal connection of approximately 1 ½ hours between the breach and therecorded interview but concluded that this connection was severely attenuated because after receiving the advice of counsel the accusedrefused to answer questions going to the core of the allegations. Furthermore, there was nothing to support a causal or contextual linkbetween the two statements.

For these reasons the trial judge concluded at para 148 that the two statements were not part of the sametransaction or course of conduct. As a result, the video recorded statement was properly admissible. [20] Other cases illustrate situations in which police attempts at a “fresh start” were unsuccessful. In Plaha, police arrested theaccused in connection with the death of his wife. The accused was read his s 10(

b) rights but police immediately recognized that hespoke very poor English. He was then taken to the police station and was interviewed over approximately 14 hours before he had anopportunity to consult with a Punjabi speaking lawyer. After receiving legal advice police conducted a further interview. The trial judgeexcluded all statements made prior to consultation with counsel but admitted those statements made after talking to the lawyer. Onappeal the Court concluded that all of the statements, including those made after the accused spoke to counsel, were tainted and thusinadmissible.

At para 53 the Court said: It is significant that the police made no attempt to sever any connection between the earlier statements and statement #4. The policeknew, or at least should have known that the statements elicited from the appellant while he was waiting to speak to counsel were takenin violation of s. 10(

b) and would not be admissible. If the police hoped to obtain a statement free of the possible effects of the earlierCharter infringements, they should have made it clear to the appellant that he was not obliged to say anything to them and moreimportantly, that his decision whether to speak with them should not be influenced by anything he had already said to them: R. v. D.(R.)(1994), (SCC), 89 C.C.C. (3d) 576 (S.C.C.), rev (1993), (ON CA), 84 C.C.C. (3d) 126 (Ont.

C.A.).The absence of any attempt by the police to make a "fresh start" after the appellant had spoken with counsel further cements theconnection between statement #4 and the earlier statements. [21] Whittwer also provides an illustration of an unsuccessful attempt at a “fresh start”. There police violated the accused’s rightsunder s 10(

b) while conducting the first two interviews. The third interview was conducted after the accused was given his s 10(

b) rights

and after he was told that his decision to answer or not answer further questions should not be influenced by anything he had previouslytold other police officers. A lengthy interview was then conducted but the accused refused to provide any incriminating information. Asa result, the police officer felt that they were at “loggerheads”. Because of this the police officer began to question the accused bymaking reference to what the accused had told police in the first interviews 5 months earlier. At that point the accused made inculpatorystatements.

The Supreme Court concluded that the third statement was tainted by the first two. At para 3 the Court explained that:“What began as a permissible fresh start thus ended as an impermissible interrogation inseparably linked to its tainted past.” [22] What all of these cases illustrate is that a fact specific inquiry is required to determine whether the challenged evidence istainted by the Charter violation. [23] In the present case, Mr. Admasu does not assert a temporal connection between the Charter violation and the samples thatwere taken from him on January 25, 2021.

I conclude that there is no temporal connection. The first samples were taken in November2016, more than 4 years before the execution of DNA Warrant #3. The second samples were taken on July 30, 2020. This was 5 monthsprior to the execution of DNA Warrant #3. The second samples have greater temporal proximity to the challenged evidence that the firstsamples. However, this temporal proximity is still too remote to be of any significance in this analysis. [24] Mr. Admasu asserts that there is a causal connection between the Charter violation and the samples that were taken duringthe execution of DNA Warrant #3.

He argues that the causal connection arises because if it were not for the breach of his Charter rightsduring the execution of the first two DNA warrants, there would have been no need for DNA Warrant #3. More specifically, Mr.Admasu argues that the June 2020 ITO sworn to seek DNA Warrant #2 specifically references the Charter concerns in relation to theexecution of DNA Warrant #1. Furthermore, the January 2021 ITO sworn in support of DNA Warrant #3 specifically references the s10(

b) violations that occurred in relation to the execution of DNA Warrant #2. The evidence in the June 2020 ITO and in the January2021 ITO formed the basis on which DNA Warrant #3 was granted. Thus he argues that the evidence of the prior s 10(

b) breaches isdirectly tied to the granting of DNA Warrant #3, thus giving rise to a strong causal connection. [25] I conclude that any causal connection between the Charter violation and the execution of DNA Warrant #3 is tenuous. Theconnection is tenuous because nothing that was obtained in the execution of the first two DNA warrants was used to support, justify oradd additional weight to the evidence that was ultimately obtained in the execution of DNA Warrant #3. Neither the June 2020 ITO northe January 2020 ITO references any inculpatory evidence obtained by the execution of the first two DNA warrants.

Instead the ITOssimply reference the fact that errors were made that gave rise to concerns in relation to violations of Mr. Admasu’s constitutional rights. This situation is, for example, much different that was the case in Whittwer where police made reference to admissions the accused madein the first interview to induce him to make admissions in the final interview. In that case the admissions made in the final interviewwere tainted by the breaches that gave rise to the first two interviews.

Nothing of that sort occurred here. [26] The causal connection is also tenuous because the police officer who executed DNA Warrant #3 was not involved in theexecution of either of the two earlier warrants. [27] Furthermore, whatever the strength of the causal connection, that connection was severed as a result of the judicialauthorization that was granted via DNA Warrant #3.

As I explained in relation to Voir Dire #4, R v Admasu, 2021 ABQB 142 at para 50to 52: The application for DNA Warrant #3 was quite appropriately submitted to Judge Moher, who had granted the two earlier DNA warrants.Judge Moher had much to consider when deciding whether to grant DNA Warrant #3. She was aware that the earlier warrants had beengranted.

Furthermore, the June 2020 ITO and the January 2021 ITO disclosed why police felt that they needed further DNA warrants.The January 2021 ITO expressly disclosed that a pre-trial motion was scheduled to be heard on February 22, 2021, in relation toallegations that there had been a breach the s 10(

b) Charter rights. Judge Moher was required to consider the application with anawareness that constitutional rights were at stake, and in this way stand as a guardian of the law and of the constitutional principles: R vAraujo, 2000 SCC 65 , [2000] 2 SCR 992 at para 29. Judge Moher was required to assess the evidence before her as well as the factors raised in s 487.05(2) in deciding whether she wouldexercise her discretion to grant the third DNA warrant. One of the factors that she was required to consider was the “nature of the offenceand the circumstances of its commission”.

The ITOs demonstrated that this is a very serious case involving allegations of first-degreemurder in very troubling circumstances. Judge Moher was also required to determine whether granting the third DNA warrant was “inthe best interests of the administration of justice”. She also had a discretion to require that the application be on notice to the Accusedand to hear submissions from counsel: B(SA) at para 56. Judge Moher exercised her discretion to grant DNA Warrant #3.

I conclude that this was a legitimate exercise of judicial discretion. [28] The granting of DNA Warrant #3 broke whatever chain of causation previously existed. As a result, I conclude that there isno causal connection between the Charter violation and the execution of DNA Warrant #3. [29] Mr. Admasu asserts that there is also a contextual connection between the Charter violation and the samples taken during theexecution of DNA Warrant #3.

He argues that there is a connection “welding” the three warrants together as part of the same “course ofconduct”. [30] While not specifically argued, the context of each of the three DNA warrants was also similar in the sense that each of thethree samples was taken by members of the EPS who attended at the Edmonton Remand Centre specifically for that purpose.

Thecontext is also similar in the sense that the evidence police were seeking on each occasion was exactly the same and the manner ofobtaining the evidence was similar. [31] As a result, the overall context was that police were seeking to obtain a sample of Mr. Admasu’s DNA for forensic testing sothat the analysis of the DNA would become properly admissible in evidence. When their first two attempts gave rise to Charterconcerns, they made a third attempt.

This is similar to the situation in Beaver and in Love where a part of the context was that policesought to interview the accused persons and obtain statements from them regarding their involvement after earlier interviews where

Charter rights had been violated. In neither of those cases was the contextual connection sufficient to satisfy the threshold issue. [ 32 ] I conclude that there is some contextual connection between the Charter violation and the execution of DNA Warrant #3.

However, the connection is not strong and, in any event, when viewed as part of the overall chain of events, and taking into consideration the lack of a temporal connection, the lack of a causal connection and the presence of the further judicial authorization, I conclude that the threshold issue has not been satisfied. [ 33 ] For these reasons I conclude that the samples obtained through the execution of DNA Warrant #3 were not “obtained in a manner” that violated Mr. Admasu’s Charter protected interests. As a result, I would not exclude any evidence pursuant to s 24(2) of the Charter . b.

Balancing – the Grant Analysis [ 34 ] Since I have determined that the samples taken during the execution of DNA Warrant #3 were not “obtained in a manner” that violated Mr. Admasu’s Charter rights, there is no requirement to conduct the Grant analysis as the second step in the s 24(2) analysis. However, I will provide the Grant analysis in case, on appellate review, my conclusion on the first part of the test is found to be in error. [ 35 ] The breach of a Charter right does not automatically result in an exclusion of evidence. The Supreme Court of Canada in R. v. Grant

(2009) SCC 32 explained the approach to be adopted when considering what, if any, relief should be granted pursuant to s 24(2) of the Charter following a Charter breach. Grant emphasizes that the purpose of s 24(2) of the Charter is to maintain the good repute of the administration of justice, which must be viewed from a long-term perspective in the sense of maintaining the integrity and public confidence in the justice system.

The inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute (para. 67-68). [ 36 ] When considering whether evidence should be excluded under s 24(2), it is necessary to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: • the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), • the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and • society’s interest in the adjudication of the case on its merits. [ 37 ] With that background I will consider the three lines of inquiry. i.

Seriousness of the conduct [ 38 ] The Supreme Court in Grant explained that deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand, where the breach was committed in good faith, admission of the evidence may have little adverse effect on the repute of the court process. [ 39 ] In R. v.

Harrison (2009), S.C.C. 34 at para. 22 the first line of inquiry was described in the following way: “At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree , or where the police knew (or should have known) that their conduct was not Charter -compliant .

On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.” (emphasis added) [ 40 ] Any breach of the Charter must be considered to be serious. Nevertheless, as was noted in both Grant at para 74 and Harrison at para 23, Charter breaches must be viewed in the context of a scale of seriousness or a scale of culpability. This was also explained in R. v Le , 2019 SCC 34 at para 143 where the Court said: …a court’s task is “to situate that conduct on a scale of culpability” ( Paterson , at para. 43).

The operating premise here is that inadvertent, technical or otherwise minor infringements impact less upon the rule of law and, therefore, upon the reputation of the administration of justice than wilful or reckless disregard of Charter rights [ 41 ] In this case the breaches of Mr. Admasu’s rights under s 10(

b) were serious, but not at the most egregious level. The implementational duties arising when an accused person has asserted his or her right to counsel are well known to police and have been clearly described by the Supreme Court of Canada and the Alberta Court of Appeal on numerous occasions. For example, the decision of the Supreme Court in Propser is now more than 25 years old. The

summary of the law provided by the Alberta Court of Appeal in Luong is now more than 20 years old. The police officers who executed the DNA warrants in this case should have been well aware of their obligations arising from s 10(b). [ 42 ] Another factor that suggests a level of seriousness in the police conduct is the complete lack of urgency in executing the DNA Warrants. While it may have been convenient for police to execute the warrants promptly, and to avoid the need to wait at the Edmonton Remand Centre while Mr. Admasu took additional steps to consult with counsel, this was not necessary. The lack of urgency

is demonstrated by the June 2020 Warrant which was not executed until more than 6 weeks after the warrant was granted. There was simply no reason to not take the time to provide the required Prosper warning when Mr. Admasu advised police that he no longer needed to speak to police. [ 43 ] The seriousness of the breach in July 2020 is also illustrated by the fact that police felt the need to obtain the June 2020 warrant because there was a concern in relation to a potential Charter breach arising from the execution of the November 2016 Warrant.

Yet, despite this knowledge, they made the very same error in the execution of the June 2020 Warrant that had been made in November 2016. This shows a disregard for Mr. Admasu’s s 10(

b) rights. [ 44 ] The presence or absence of “good faith” and the presence or absence of “bad faith” are relevant considerations in the first line of inquiry in a s 24(2) analysis: Grant at para 75 ; R v Del Corro , 2019 ABCA 156 at para 64 to 66 . “Bad faith” on the part of police, including wilful or flagrant disregard of Charter standards should always be seen as serious, and as a result, the Court should tend to disassociate itself from the conduct.

On the other hand, while “good faith” may reduce the need for the court to disassociate itself from police conduct, there are still instances where, despite “good faith”, the conduct of police is such that the Court must disassociate itself from it. [ 45 ] I conclude that police were not acting in “good faith” in this case. As was noted in Grant at para 75 , police ignorance of Charter standards, negligence or wilful blindness can also lead to an inference of “bad faith” or an absence of “good faith”.

I do not conclude that there was “bad faith” in this case, but there was an absence of “good faith”. [ 46 ] The police conduct in this case was serious but it was not egregious and, on a scale of seriousness it is neither at the lower end of the spectrum nor at the highest end of the spectrum. Ultimately, I conclude that the level of seriousness argues in favour of exclusion of the evidence of the forensic analysis of the DNA evidence. ii.

Impact on the Charter Protected Interests [ 47 ] The second inquiry under the Grant analysis focuses on the impact of the breach on the Accused’s protected interests. [ 48 ] Many cases involving breaches of s 10(

b) relate to statements by an accused to persons in authority. As Grant observed at para 92 statements obtained in breach of s 10(

b) support a presumptive general, although not automatic, exclusion. The court noted that a s. 10(

b) breach undermines the detainee’s “.... right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination”. [ 49 ] In this case, Mr. Admasu did not make any statements to police during the execution of the DNA Warrants. However, he did provide samples of his bodily fluids that were analysed and may potentially become inculpatory evidence. [ 50 ] Being able to communicate with counsel prior to providing a sample of bodily substances is an important right. Mr.

Admasu was entitled to consult with counsel at the time police executed DNA Warrant #2 to offset some of the substantial power imbalance between Mr. Adamsu and the authorities. However, the Crown will not tender the results of the analysis of the samples taken as a result of the execution of DNA Warrant #1 or DNA Warrant #2. The s 10(

b) violations in relation to the execution of DNA Warrant #1 and DNA Warrant #2 had a real impact on Mr. Admasu’s Charter protected interests at that time those warrants were executed. However, when DNA Warrant #3 was executed, police fully complied with s 10(b). In this respect the impact of the Charter violation becomes much more remote and, in this way the overall impact on Mr. Admasu’s Charter protected interests is not substantial. [ 51 ] Furthermore, and notwithstanding that the execution of DNA Warrant #3 may yield inculpatory evidence, I conclude that this did not have any material impact on Mr.

Admasu’s Charter protected interests because taking samples had been authorized by a warrant. [ 52 ] As a result, I conclude that the breach of Mr. Admasu’s rights under s 10(

b) had very little impact on his Charter protected interests. This line of inquiry does not argue in favour of the exclusion of any evidence. iii. Societies interest in adjudication on the merits [ 53 ] The third line of inquiry in the Grant analysis asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion.

The reliability of the evidence is an important factor in this line of inquiry. [ 54 ] This line of inquiry often, but not always, favours inclusion of the evidence. [ 55 ] In this case the results of the forensic analysis of the samples obtained through the execution of DNA Warrant #3 could potentially be an important part of the Crown’s case. The evidence is circumstantial evidence only. It is possible that the DNA analysis may establish a link between Mr. Admasu and other evidence that is related to the commission of the offence.

Even if such a link is established, the link would not likely, on its own, establish that Mr. Admasu committed any of the offences. But the forensic DNA analysis may be important circumstantial evidence that might assist in the truth-seeking function of the criminal trail process. [ 56 ] The Supreme Court in R v B(SA) , 2003 SCC 60 , at para 61 , [2003] 2 SCR 678 confirms that forensic DNA analysis of samples taken pursuant to a DNA warrant have high probative value. [ 57 ] I conclude that the third line of inquiry does not argue in favour of the exclusion of any evidence. iv.

Balancing the Lines of Inquiry [ 58 ] It is necessary to consider all of the circumstances within the framework of the three lines of inquiry for the purpose of determining whether the admission of the challenged evidence would bring the administration of justice into disrepute. There are no

overarching rules to determine how this balance should be struck. Mathematical precision is not possible. [ 59 ] There are no presumptions with respect to the exclusion of physical evidence following a Charter violation. [ 60 ] In the present case, the police conduct was a reasonably serious violation of the Accused’s rights. Police were not acting in “good faith”, although their conduct did not rise to the level of “bad faith”. However, the breach had little impact on Mr. Admasu’s Charter protected interests and the forensic analysis of the DNA samples could potentially be important to the Crown’s case.

The DNA evidence is reliable. [ 61 ] When I weigh all of these factors, I conclude that the admission of the evidence of the forensic analysis of the DNA samples will not bring the administration of justice into disrepute. 3. Conclusion [ 62 ] I conclude that the forensic DNA analysis of the samples taken from Mr. Admasu during the execution of DNA Warrant #3 should not be excluded from evidence despite the violation of Mr. Admasu’s rights under s 10(

b) of the Charter . Heard on the 22 nd day of March, 2021. Dated at the City of Edmonton, Alberta this 26 th day of March, 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