R v RLM, 2021 ABQB 724

Court of Queen’s Bench of Alberta Citation: R v RLM, 2021 ABQB 724 Date: 20210910 Docket: 200367530Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - RLM Accused Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.A. Fagnan _______________________________________________________ Introduction [ 1 ] RLM is charged with one count of sexual assault on the complainant contrary to s. 271 of the Criminal Code . Defence seeks to exclude DNA evidence, alleging a s. 8 Charter breach.

Facts [2] In the early morning of June 22, 2019, the accused picked up the complainant at her parents’ home and drove to hisresidence, where they both consumed alcohol. The complainant fell asleep at the accused’s residence and he drove her home later thatsame morning. That evening, the complainant reported to the police that a sexual assault had occurred that morning and underwent aSART examination. Several samples of DNA material were taken for possible DNA analysis including a swab from the right and leftside of her neck.

Prior to the SART examination, she provided the clothing she was wearing at the time of the incident to members of theEdmonton Police Service. Samples of DNA material were drawn from the clothing given to EPS by the complainant. All DNA sampleswere gathered by EPS members who then submitted them to the RCMP forensic laboratory for analysis. The analyst was able togenerate a DNA profile from the genetic material found on and within the complainant’s person and clothing. [3] On August 20, 2019, Det.

Junck swore an affidavit (ITO) in support of an application for a DNA warrant to authorize thecollection of a DNA sample from the accused.

He deposed that: - he had reasonable grounds to believe that a bodily substance had been found or obtained on or within the body of the victim of theoffence and that forensic DNA analysis of a bodily substance from the accused would provide evidence about whether that bodilysubstance was from the accused (page 1) - he received the lab report indicating that a male DNA profile was developed from swabs obtained from both sides of thecomplainant’s neck as well as in underwear worn by her that night, which profile was designated as Male 1 (pages 4, 5) - the DNA warrant was being sought to obtain a DNA sample from the accused to be compared to the Male 1 profile developed bythe lab (page 5) - a male DNA profile designated as Male 1 was developed suitable for comparison purposes from the underwear and neck swabs,and a DNA sample from the accused was required to be compared to the Male 1 DNA profile (page 22) - he believed that the forgoing information met all the criteria within the meaning of s. 487.05(

l) of the Criminal Code in that “b. […] a bodily substance has been found on or within the body of the victim of the offence and on clothing worn by the victim at the timeof the offence”, and that Forensic DNA analysis of a bodily substance from the accused will provide evidence about whether the bodilysubstance referred to in paragraph (

b) was from that person (pages 22, 23). [4] The warrant was issued on August 20, 2019, reflecting that the judge was satisfied that Det. Junck had formed a belief onreasonable grounds “that a bodily substance has been found or obtained … [o]n or within the body of the victim of the offence” (page 1).Condition 2(

c) of the Warrant required that the accused be informed of the purpose for taking the samples. [5] The accused was arrested on September 3, 2019, and Det. Junck executed the DNA Warrant, reading the EPS Adult DNAWarrant Advisory to the accused. Paragraph 2(

c) of the form of the DNA Warrant Advisory includes “iii. on anything worn or carried bythe victim at the time when the offence was committed” in the list of options of samples which could be compared with the accused’sDNA sample. However, the only option circled was “ii. on or within the body of the victim of the offence”. [6] In the oral explanation Det. Junck provided to the accused on September 3, 2019, he stated that the purpose for collecting theaccused’s DNA sample was to compare it to samples found on the complainant’s person.

He stated that the taking of the samples was tobe compared to DNA developed by the lab; “So it’s going to be a comparison of some DNA that was already obtained” (transcript, page11). He also stated that the purpose of obtaining the accused’s bodily substance was to provide evidence about whether the bodilysubstance found on or within the victim of the offence was from him by submitting them for forensic DNA analysis (page 12). [7] Det. Junck testified in the voir dire.

When asked why he did not specify in the Warrant, the Advisory or his oral explanationthat the sample would be compared to DNA taken from the complainant’s clothing, he said that underwear is worn next to the skin, andhe considered that to be a sample on the complainant’s body. During cross-examination, Det. Junck agreed that the sample from theunderwear came not from the complainant’s skin next to the underwear, but from the underwear itself. He noted, however, that thecomplainant wore the underwear on her body at the time of the alleged offence.

Argument Defence [8] Defence cites R v Stillman, (SCC), [1997] 1 SCR 607 for the proposition that every person has a highprivacy interest in his own body, and unauthorized state interference with a person's bodily integrity is a breach of his privacy and anaffront to his dignity. [9] Defence notes that the state may only take a blood sample from a person's body in compliance with the statutory regime setout in s. 487.05 of the Criminal Code. In this case, the warrant was valid, but police exceeded the authority granted in comparing the

accused’s sample to DNA taken from the clothing. [10] Defence argues that a DNA warrant does not give police carte blanche to compare the accused’s DNA with a DNA samplenot mentioned in the warrant: R v Auclair, [2003] OJ No 2461 (SC). Defence submits that the accused would have been within his rightsto refuse to provide a sample if he had known that it would be used for purposes not authorized by the warrant. Failure to disclose thathis DNA sample could, or would, be compared to samples taken from sources other than the source authorized in the warrant constitutesa serious Charter breach.

In Auclair, the Court held such a breach was serious and admission of the evidence would result in an unfairtrial, bringing the administration of justice into disrepute. [11] Further, defence asserts that the warrant was not executed in a reasonable manner, as police exceeded their authority asoutlined on the face of the warrant: R v Collins, (SCC), [1987] 1 SCR 265. [12] As for the s. 24(2) analysis under R v Grant¸ 2009 SCC 32 , [2009] 2 SCR 353, defence argues that negligence orwillful blindness cannot be equated to good faith. Police knew of the clothing sample when the warrant was obtained. Det.

Junck, anexperienced officer, was aware of the limitations of the DNA warrant, and communicated the information to the accused. His evidencethat DNA from underwear is the same as DNA from the body is not reasonable. He was mistaken at law regarding the distinctionbetween samples from the body and from the clothing.

The suggestion that police could have obtained a warrant only underscores theirnegligence or recklessness. [13] Defence argues that this invasion of bodily integrity was serious given the high privacy interest involved and the fact that theevidence was conscripted. [14] Defence submits that if there is no consequence for such a breach, the scope limitations in s. 487.05 are meaningless.

Further,as this application does not affect the comparison of the accused’s DNA sample to samples collected from the complainant’s body, norany of the other evidence available to the Crown in this case, it cannot be tenably argued that the Crown case against the accused wouldbe gutted if the evidence were excluded.

Crown [15] Crown submits that since the accused’s DNA sample was obtained pursuant to a valid warrant, the accused does not havestanding to bring this application as he cannot show any reasonable expectation of privacy in the complainant’s underwear which he isrequired to do before he can argue he was subject to an unreasonable search or seizure, citing: R v Cole, 2012 SCC 53, R v Marakah,2017 SCC 59, R v Edwards, (SCC), [1996] 1 SCR 128. [16] Crown concedes that the warrant should have specified comparison with the sample from the clothing in order to provide theutmost specificity.

However, Crown contends that it is not unlawful or unreasonable for police to compare an accused’s sample with anyDNA found on items lawfully obtained during an investigation. [17] Crown cites R v Abdulkadir, 2018 ABPC 243 for the proposition that s. 487.08 is a safeguard to ensure DNA is not used in anunreasonable manner that could violate s. 8.

Police complied with s. 487.08 because they remained within the confines of using theaccused’s DNA in the course of this investigation. [18] Crown notes that the police in R v Paul, [2004] OJ No 1333 (SC) compared the sample to exhibits not even mentioned in thewarrant or the ITO. In the present case, the complainant’s clothing was mentioned in the ITO and police did also compare DNA foundon the complainant's neck to the DNA seized pursuant to the warrant. [19] Crown argues that if there is a s. 8 breach, there is no evidence of any reckless, deliberate conduct or bad faith.

Any s. 8breach is minor and technical as the ITO clearly mentions the existence of the complainant's underwear and highlights it as a potentialcritical piece of forensic evidence corroborating the complainant's allegations. The verbal explanation indicated why the accused’s DNAsample would be taken, what it would be used for, and that it would be compared against multiple samples. [20] Crown submits that the seriousness of the possible Charter-infringing conduct is on the extreme low end of the spectrum.Det. Junck’s rationale equating underwear to the body is incorrect in law but plausible.

The sample from the complainant's underwearreasonably related to the same serious sexual assault allegation. Police did not run afoul of s. 487.08. The circumstances show good faithdespite the error in not indicating clothing in the warrant. [21] Crown recognizes the high privacy interest in a DNA sample, but argues that the accused’s privacy or human dignity wereonly minimally impacted, as police were authorized to obtain his DNA sample and compare it to the DNA obtained from thecomplainant's neck. [22] Crown further argues that the allegations in this case are serious.

Exclusion of the DNA evidence would significantlynegatively impact the truth-seeking function of the Court and society's interest in the adjudication of this trial on its merits as the DNAevidence from the complainant's underwear is the only physical corroborative evidence of the most serious aspect of the allegation. Asboth parties are alleged to have been extremely intoxicated, the physical corroborative evidence plays an important role in ensuring theCourt can properly carry out its role in truth-seeking. DNA is highly reliable. Criminal Code [23] Sections 487.04 to 487.0911 of the Criminal Code, RSC 1985, c.

C-46 govern DNA warrants and the use that may be made ofsamples. The following provisions are particularly relevant to this application: 487.05

(1) A provincial court judge who on ex parte application made in Form 5.01 is satisfied by information on oath that there are

reasonable grounds to believe (

a) that a designated offence has been committed, (

b) that a bodily substance has been found or obtained (

i) at the place where the offence was committed, (ii) on or within the body of the victim of the offence, (iii) on anything worn or carried by the victim at the time when the offence was committed, or (iv) on or within the body of any person or thing or at any place associated with the commission of the offence, (

c) that a person was a party to the offence, and (

d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (

b) was from that person and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1)… 487.07

(1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under

section 487.05 or an order made under

section 487.051 or under an authorization granted under

section 487.055 or 487.091, a peace officer shall inform the person of (

a) the contents of the warrant, order or authorization; (

b) the nature of the investigative procedures by means of which the samples are to be taken; (

c) the purpose of taking the samples; … (

e) in the case of samples of bodily substances taken in execution of a warrant, (

i) the possibility that the results of forensic DNA analysis may be used in evidence… 487.08

(1) No person shall use bodily substances that are taken in execution of a warrant under

section 487.05 … except to use them for the purpose of forensic DNA analysis in the course of an investigation of a designated offence.

(2) No person shall use the results of forensic DNA analysis of bodily substances that are taken in execution of a warrant under

section 487.05 … except (

a) in the course of an investigation of the designated offence or any other designated offence in respect of which a warrant was issued or a bodily substance was found in the circumstances described in paragraph 487.05(1)(b) …; or (

b) in any proceeding for such an offence.

(3) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on

summary conviction.

Section 8 [ 24 ] The focus of this application is the use by the state of the accused’s DNA sample. He has a reasonable expectation of privacy in his DNA.

Case Law [ 25 ] The following cases discuss the extent to which use of a DNA sample for comparison with a sample not itemized in a warrant might constitute breach of s. 8. [ 26 ] In R v Brosseau , 2001 ABPC 220 , there was no averment in the DNA warrant signed by the authorizing judge that a forensic DNA analysis of the sample from the accused would provide evidence about whether the bodily substance found at the crime location, or a sample from the commission of the crime, was from that person. The Court found that the deficiencies in the form were not calculated to mislead, nor did they affect the substance.

The ITO covered the deficiencies in detail. The Court relied on s. 33 of the

Interpretation Act to support the validity of the search warrant. The Court also held that the alleged deficiencies were sufficiently described in the ITO to give reasonable grounds so that the authorizing judge could issue the order. [ 27 ] In Auclair , a DNA warrant was issued specifically to compare the accused’s profile with a hair. The Court held that the DNA analysis results of the accused’s blood were used improperly and without authorization in comparisons with substances other than the hair, amounting to a s. 8 breach. The Court reasoned that the judge who authorized the warrant had no opportunity to consider the other items with which the profile was compared.

[ 28 ] In Paul , the DNA warrant authorized comparison of the DNA profile obtained from the accused’s sample to be compared to analysis of one spermatozoon from one item of clothing. The police did not compare the profile to that one spermatozoon on one piece of clothing. Rather, they compared the profile to DNA on a straw, and to other spermatozoa on the deceased's shirt and jacket. The Court held that comparison of the DNA profile to items other than that allowed by the issuing judge constituted a breach of s. 8. [ 29 ] In R v Zoldi , [2009] OJ No 6519 (SC) , the warrant simply recited all of the subsections in s. 487.05(1)(b)(

i) to (iv) without suggesting an item or location. The ITO itself mentioned only one location, that being a towel. The defence took the position that in order to be valid the warrant had to recite that a bodily substance was found on the towel. Defence conceded a warrant specifying a comparison to the towel could have been granted on the sworn information provided. The Court opined that it would be incongruous if a lawfully obtained DNA sample could not be compared to a bodily substance located later in the investigation at a location falling within the terms of s. 487.05(1)(b)(

i) to (iv). The Court distinguished Auclair and Paul based on the broad wording of the Zoldi warrant. [ 30 ] In R v BD , 2011 ONCA 51 , police believed a mother had committed incest with her son, resulting in the birth of her daughter. After obtaining the deceased daughter's blood, police sought simultaneous warrants against the mother and her son. These warrants were lawful, but permitted only comparison of the suspects' DNA against the DNA of the child, and not comparison of the two suspects' DNA against each other.

The Court found that the warrants did not authorize the comparison upon which the DNA expert arrived at the conclusion that the accused mother was the mother of the child’s father. The Court held that if Parliament intended the DNA warrant provisions to capture the second-stage comparison of the samples in that case in a single-warrant process, it could have said so. [ 31 ] In R v Abdulkadir , 2018 ABPC 243 , the accused’s profile was sent to the national DNA data bank, which provided information that there was a match between the sample and a profile developed from the accused.

It further indicated it found a similar match with exhibits in two other investigations. The police seized a blood sample from the accused pursuant to a DNA warrant which only authorized the accused's DNA to be compared to the DNA found on the complainant's body. The accused conceded the warrant was valid. The authorities shared the accused's ensuing profile so that it could be compared to samples in the other investigations. The Court reasoned that s. 8 only protects individuals from unreasonable searches or seizures by state authorities.

The original seizure was carried out pursuant to s. 487.05 – it was authorized by law and the law itself has been held to be reasonable. In the Court’s view, the issue was whether the seizure was carried out in a reasonable manner, as the authorities failed to comply with s. 487.08(2)(a). The Court held that the sharing of the profile was clearly impermissible, but that the original search and seizure did not become unreasonable because of the impermissible after-the-fact use of the DNA profile and therefore there was no s. 8 breach.

The Court distinguished the decision in Paul on the basis that the order in Paul only allowed a very specific comparison of the accused's profile to only one sample, and there was no such limitation in the case before him. [ 32 ] In R v Matheson , 2000 BCSC 1927 , although a vest was mentioned in the body of the ITO, the warrant was only sought with regard to three other items. Other than the passing reference, no mention was made of the vest, nor was there mention of the vest having been analyzed for DNA although three areas on it had been analyzed.

The Court reasoned that the legislation is designed to provide a useful investigative tool subject to judicial scrutiny while keeping the intrusion into the bodily integrity of the accused to a minimum. The Court held that to allow additional testing on other items not listed in the warrant does not affect the bodily integrity of the accused, whereas to require successive warrants and successive samples to be taken in respect of the same offence could arguably give rise to a process that might violate the bodily integrity of the accused.

The Court interpreted the provisions as allowing testing of other items against the sample, as long as those other items come within s. 487.05(1)(b). The Court held that the check on the testing process occurs when the evidence is sought to be tendered as the Crown must show that the item meets the requirements of s. 487.05(1)(

b) in order to bring it within s. 487.08. Analysis [ 33 ] Counsel commented on the various factors which distinguish these cases from the present one. Certainly, each decision depends on its own unique facts. [ 34 ] Overall, this body of case law reflects some uncertainty as to the permissible uses of DNA lawfully obtained under a warrant. Clearly, s. 487.05 requires specificity in the first instance with respect to the sample to which the suspect’s sample will be compared.

Section 487.07 requires that this information be conveyed to the subject of the warrant. [ 35 ]

Section 487.08 places limits on use of DNA collected. That provision has apparently left some room for argument that once a DNA sample has been lawfully obtained under s. 487.05, it is lawful and reasonable for police to use that sample for further comparison with other samples obtained in the same investigation regarding a designated offence, without the need to return for further authorizations or amendments throughout the course of a single investigation. [ 36 ] Alternatively, s. 487.08 may be interpreted as simply delineating the outside limits on the use of seized DNA samples, as reflected in the fact that it ultimately creates an offence for misuse of DNA samples. On that

interpretation, s. 487.08 is not an implicit authorization for comparison with any and all samples that may be discovered in the course of an investigation. [ 37 ] The Criminal Code DNA warrant provisions create the framework for judicial authorization of the state’s exceptional intrusion into a person’s very high privacy interest in their own body and genetic data.

Police have no power to obtain such samples outside of this statutory authority. [ 38 ] Although distinguishable on the facts, the Court in BD reasoned that if Parliament had intended the DNA warrant provisions to authorize further uses once a sample had been obtained, it could have said so. I agree. [ 39 ] The argument that comparisons not authorized under the warrant do not affect the bodily integrity of the accused ignores the continuing high expectation of privacy in the informational content - being the biographical data - in one’s own DNA despite it having been obtained under warrant.

That argument would put in question the purpose of the requirement to advise the accused under s. 487.07. The subject’s high expectation of privacy is also recognized in the fact that s. 487.08 actually makes it an offence to make certain uses of a sample and resulting analysis. An approach whereby s. 487.08 constitutes an implicit authorization would result in the s. 24(2) analysis

arising only where an offence had been committed. [ 40 ] In the absence of a clear indication by Parliament that lawfully seized DNA can be compared with samples not mentioned in the warrant without further authorization or amendment of the initial warrant, and advice to the accused, any use beyond what is contemplated on the face of the warrant constitutes a breach of s. 8. [ 41 ] Therefore, the applicant has established a breach in this case. Section 24(2) [ 42 ] As a result, the Court must consider whether the evidence should be excluded under s. 24(2).

Case Law [ 43 ] In Auclair , the Court held that although the physical intrusion upon the accused’s body was minimal, the violation involved a breach of bodily integrity and privacy, and admission of evidence emanating from a comparison of the accused’s profile with items seized, other than the hair, would or could result in an unfair trial.

The issuing justice had no opportunity to consider if there were reasonable grounds to compel the accused to provide a sample for profile comparison with the items seized, nor was there disclosure to him when the warrant was read to him or to his counsel that such use was going to be made. [ 44 ] The Court held in Paul that admission of the evidence would not be unfair even though it was conscripted evidence, noting that a warrant would have been issued to authorize the impermissible comparisons if the ITO had been more carefully prepared. [ 45 ] In Abdulkadir , the Court found no breach but opined nevertheless regarding admissibility.

In that case, the DNA profile had been shared for comparison with samples from investigations other than for the designated offence. The Court held that the state authorities did not deliberately or recklessly set out to use the applicant's DNA in an impermissible manner and therefore, the Charter - infringing conduct was not at the top end of the spectrum. However, it did not equate to good faith attenuating the seriousness of their conduct; the police were ignorant of Charter standards.

The Court held that the impact on the accused was minimal given that a valid s. 487.05 warrant allowed for the initial taking of the sample. The Court held that the truth-seeking function would be better served by admission of the evidence given the importance of the evidence in the prosecution's case, and its reliability, and the long-term repute of the administration of justice was served by admission rather than exclusion. [ 46 ] In BD , the Court found that the police had acted in good faith. The sample was taken from the appellant under a validly authorized DNA warrant.

The Charter violation was not in the taking of the sample but in the subsequent use for a purpose that could in fact not be authorized under s. 487.05(1). The police were not aware of that at the time. There was no deliberate or egregious police conduct disregarding the rights of the accused that might lead the public to conclude the court implicitly condones such conduct, undermining the respect for the administration of justice. There was very little impact on the accused's protected interests because the sample was initially taken in accordance with an authorized DNA warrant.

Further, the police could have obtained a second warrant. The Court noted the Supreme Court guidance favouring admission in cases involving bodily samples because it is generally reliable and the risk of error in depriving the trier of fact of the evidence may well tip the balance in favour of admission. Analysis [ 47 ] All of the cases mentioned are factually distinguishable.

In particular, the reasoning in Abdulkadir is obiter , and it appears that the sample sought to be excluded in that case was contemplated in the warrant. [ 48 ] Nevertheless, it is helpful to consider the reasoning of the courts. [ 49 ] In all of these cases, with the exception of Auclair , the Court did, or would have, admitted the evidence under s. 24(2). The decision in Auclair was issued prior to the Supreme Court’s decision in R v Grant , 2009 SCC 32 . In Grant , the court reviewed the

interpretation and application of s. 24(2) of the Charter . The Court underlined the importance of undertaking a principled review of all of the relevant facts and factors before determining the admissibility or exclusion of evidence, rather than having an automatic exclusion rule for some types of evidence, in particular conscripted evidence.

In Auclair , the distinction between conscripted and non-conscripted evidence appears to have played a significant role in the Court’s brief reasoning under s. 24(2). [ 50 ] In the present case, regarding the seriousness of the Charter -infringing state conduct, police did lawfully seize the DNA sample and compared it to the sample identified in the warrant. They did what they said they would do in that regard. [ 51 ] Although Det.

Junck failed to precisely state that he had reasonable grounds with respect to the DNA found on the clothing, the ITO reflects his belief at the time of obtaining the warrant that the DNA from the complainant’s clothing was relevant.

He explained in the ITO that he had received the lab report indicating that a male DNA profile was developed from swabs obtained from both sides of the complainant's neck as well as in underwear worn by her that night, which profile was designated as Male 1, and that the DNA warrant was being sought to obtain a DNA sample from the accused to be compared to the Male 1 profile developed by the lab. He testified on the voir dire that he believed the underwear sample had come from the complainant’s body.

Therefore, although there may be some dispute about his reasoning process, there is a logical connection, set out in the ITO, as to the relevance of the samples taken from both the body and the clothing. [ 52 ] As well, although I have found that s. 487.08 creates a limit, rather than permission or an implicit extension of an initial authorization, there exists some uncertainty in the relatively limited case law with regard to use of a sample for purposes not contemplated in the warrant within the same investigation as reflected in the various approaches taken by courts to date.

[ 53 ] Finally, there is no evidence or suggestion in this case of systemic negligence, subterfuge, disregard for, or flouting of, the statutory requirements or the use to be made of DNA obtained under a warrant. [ 54 ] For all of these reasons, I conclude that the state conduct in this case was not at the serious end of the spectrum. [ 55 ] As for the impact on the Charter -protected interests of the accused, the unauthorized use of the DNA sample did not entail a further intrusion on the accused’s privacy and dignity in the sense of requiring the taking of a further sample.

The unauthorized use had an impact on his right to know the specific purpose for which the sample was being used, however he was well aware that the sample was being taken for comparison with samples taken from the complainant in the investigation arising as a result of the allegations which are now before the Court. In this respect, while his expectation of privacy in his DNA is significant, the impact of the breach on that expectation is somewhat attenuated in the circumstances. [ 56 ] Society has an interest in the adjudication on the merits of this sexual assault case.

Evidence obtained from the accused's body is generally considered to be reliable. While the Crown apparently has other evidence resulting from comparison with the samples from the complainant’s body as contemplated in the warrant, Crown has stated that the DNA from the underwear logically relates specifically to the most serious aspect of the alleged assault and is essential to the proof thereof. [ 57 ] Balancing the three factors in light of the long-term integrity of, and public confidence in, the justice system favours admission rather than exclusion of this evidence.

Conclusion [ 58 ] While the applicant has established a s. 8 breach, the evidence in question is admissible under s. 24(2). Heard on the 8 th and 9 th days of September, 2021. Delivered orally on the 9 th day of September, 2021. Dated at the City of Edmonton, Alberta this 10 th day of September, 2021. J. A. Fagnan J.C.Q.B.A. Appearances: John Schneider for the Crown Brian A. Vail, QC for the Accused