R. v. Burgar Date:, 2013 BCPC 389

Citation: R. v. Burgar Date: 20130729 2013 BCPC 0389 File No: 224204-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH PAUL BURGAR EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M. GIARDINI BAN ON PUBLICATION 486.4(1) CCC Counsel for the Crown: K.H. Gagnon Counsel for the Defendant: A. Glouberman

Place of Hearing: Vancouver , B.C. Dates of Hearing: July 16-19, 22, 29, 2013 Date of Judgment: July 29, 2013 Introduction [ 1 ] THE COURT: I begin with an introduction. The accused, Mr. Burgar, is charged with sexually assaulting C.F., who at the time of the offence went by the name of C.P. A brief

summary of the circumstances of the incident as described by Ms. C.F. follows.

Summary of Circumstances [ 2 ] On April 16, 1999, Ms. C.F., who I will refer to as the complainant, reported to police that an incident occurred while she was using a public washroom located at Central Park in the City of Burnaby. At the time, Ms. C.F. was recovering from an injury which resulted in her mobility being impaired. In fact, she was at Central Park to meet a friend who was going to go with her to a physiotherapy appointment. While waiting, she decided to use a public washroom nearby. [ 3 ] Ms.

C.F. reported that while she was inside a locked stall in the public washroom, seated on the toilet, she saw a man through the lower open space of the washroom stall door. She said the man was on his knees on the floor and he was playing with his erect penis. Ms. C.F. also reported that the man forced the stall door open, forced his body against her, and masturbated until he ejaculated onto the front of her tank top. After that, the man immediately left the stall and the public washroom building. [ 4 ] Ms. C.F. said she was upset and screaming. She left the washroom shortly thereafter.

She spoke to a man who was seated on a bench outside near the washroom building. She then left and drove home to her apartment and called the police. A police officer attended and began an investigation which included taking the clothing the complainant had worn as evidence. [ 5 ] Sometime later, the clothing worn by Ms. C.F. on the day of the incident in the washroom was sent for DNA analysis. The results of that DNA analysis were entered into the National DNA Data Bank of Canada. In August 2012, the RCMP reactivated the investigation relating to Ms. C.F.'s assault.

They did so because a DNA "hit," in other words, a match, had been registered in the National DNA Data Bank. The DNA match was between the DNA retrieved from Ms. C.F.'s clothes and the DNA of Kenneth Paul Burgar, date of birth, May 6, 1948. [ 6 ] Mr. Burgar's DNA had been taken and entered pursuant to a judicial order following his conviction on an indecent exposure charge or charges, it was not clear to me if it was one or more than one charge, in Surrey, British Columbia. As a result of the match, Constable Bonnett prepared an ITO.

This was done to confirm whether the DNA from the "hit" on the databank was the same as that found on the victim's clothing and also to confirm that the suspect DNA was the same as that on the victim's clothing. [ 7 ] On September 25, 2012, Constable Bonnett obtained an ex parte DNA warrant from a Provincial Court judge. She executed that warrant on the accused on September 26, 2012, at the correctional facility where he was incarcerated.

At the beginning of the trial on this matter, the court was advised that the accused would be raising a number of Charter challenges. [ 8 ] The accused himself wished to make submissions on certain alleged Charter breaches, although he was represented by counsel. The Crown did not object to the accused's request that he be allowed to make submissions to the court. Accordingly, at the end of the voir dire, I heard submissions directly from the accused and then from the Crown. I wish to note, however, that Ms.

Glouberman, from time to time, assisted in restating and recasting some of the points and arguments made by Mr. Burgar in order to assist the court. Submissions [ 9 ] I now turn to the submissions on the Charter issues. I am will focus on the accused's submissions. [ 10 ] The accused argued that his Charter rights had been breached in the following ways: 1. The DNA warrant obtained by the police on September 25, 2012, was invalid for the following reasons: (

a) the police did not have reasonable grounds to believe that a sexual assault had occurred; or (

b) that the accused was a party to the offence of sexual assault; and (

c) the DNA sample that was the "hit" in 2012 should not have been taken into account because the conviction which allowed for the taking of the DNA sample and the taking of the sample itself is under appeal; accordingly, Mr. Burgar argued there was no lawful justification to take a DNA sample from him. 2. Alternatively, if the DNA warrant was valid, it was executed upon the accused in an unlawful manner and thereby violated his rights under s. 10(

b) of the Charter . 3. Mr. Burgar argued that his Charter rights under s. 7 were violated when he was gated upon his release from custody on another matter. The accused argued he was detained by the police on September 26, 2012, when the DNA warrant was executed. At that time, he should have been arrested and taken before a judge for a bail hearing on the 1999 matter. The accused argued that the police had two purposes when they attended at the correctional facility on September 26, 2012. On purpose was to execute the DNA warrant.

The other was to question him about the 1999 sexual assault that led to the charges before the court. 4. The initial investigating officer, Constable Lisa Lee, failed to carry out a proper investigation and thus prevented the accused

from having a fair trial. The parties agreed during the course of argument that this issue would be addressed later in the proceedings. I acceded to the request of both counsel and Mr. Burgar and will hear argument on this point later in these proceedings at the same time and perhaps as part of an abuse of process argument the accused wishes to raise. So I will not refer to that issue further in this oral ruling. [ 11 ] That is a

summary of the points Mr. Burgar raised. I will now expand on Mr. Burgar's submissions. Although I wish to note that even my expanded comments on his submissions are a

summary of what I heard. [ 12 ] On point 1, the accused submitted that the DNA warrant was not valid because it was based on groundless assumptions and unlawfully obtained information. The accused submitted that a review of the ITO submitted by the police for the ex parte DNA order indicates there was insufficient evidence to conclude a sexual assault had taken place at all because there was no corroborating evidence as required by law.

In particular, the accused argued there was no crime scene investigation to support the claim that a person had forced his way into the washroom cubicle or that there had been anyone in the washroom cubicle. [ 13 ] The accused submitted the officer who requested the DNA warrant, Constable Bonnett, misled the Provincial Court judge who issued the DNA warrant into believing there were reasonable and probable grounds to issue a warrant. The basis for the accused's submission in this regard is that there was no corroboration.

He believes there must be corroboration of a sexual assault. [ 14 ] He submitted there was no crime scene investigation. For example, the police did not check if the cubicle door had been forced, if ejaculation had taken place in the cubicle, if the stains on the complainant's clothing were fresh or recent, or if the cubicle door opened outwards or inward. [ 15 ] The accused maintained that Constable Bonnett relied on the complainant's credibility and should not have. He noted the complainant had picked out a suspect from a photo lineup approximately one month after the incident.

However, the suspect she had picked out did not match the accused's description. [ 16 ] Mr. Burgar also pointed out that if there had been any activity in the washroom cubicle, people would have heard as there were people in the area. However, there is no evidence that anyone heard. The accused further pointed out that one has to ask how the complainant, who said she had a disability, could have had sufficient strength and ability to move both herself and her alleged assailant.

He made a number of other observations in the same vein. [ 17 ] The accused submitted that by failing to include such contradictions and inconsistencies in the ITO, Constable Bonnett failed to provide due process.

The accused is of the view that if all of this had been presented to the Provincial Court judge in September 2012, he would not have issued the DNA warrant. [ 18 ] The other issue raised regarding the validity of the warrant is that the ITO refers to the fact that on June 29, 2012, the accused was ordered to provide a DNA sample as a result of a court order made by a Provincial Court judge in Surrey, British Columbia. This court order was made after the judge convicted Mr.

Burgar on two charges of indecent exposure. [ 19 ] The sample provided by the accused pursuant to the June 29, 2012, order was entered into the databank and was identified as a hit, that is, a match, to the unknown male DNA profile obtained from the complainant's clothing following the 1999 incident.

The accused maintained that the post-conviction DNA order made on June 29, 2012, by the Provincial Court judge in Surrey was unlawful because that order referred to a primary designated offence whereas the offences, presumably, the indecent exposure offences, are not primary designated offences. [ 20 ] The accused argued that the reference to the DNA sample ordered by the judge following the Surrey convictions was a clear violation of his reasonable expectation of privacy. He maintained the Provincial Court judge failed to exercise his discretion and exceeded his lawful authority in issuing the DNA order.

The accused pointed out that the conviction on the indecent exposure charges and the issuance of that DNA order have been appealed. He is currently awaiting the results of that appeal. [ 21 ] The accused made a number of other points that I have not specifically set out in these reasons, but which I have considered in reaching my conclusion. [ 22 ] With respect to point 2, the accused submitted that the DNA warrant was not executed in a lawful manner. He maintained he was not verbally told about the conditions under which the warrant should be executed as set out in paragraph 6 of the warrant.

However, he nevertheless objected to the validity of the warrant when Constable Bonnett came to execute it. The basis for these objections have already been set out above. [ 23 ] The accused maintained he was not provided an opportunity to retain and instruct counsel. He further maintained that once he had asked to retain and instruct counsel, not only were the police officers required to assist him in exercising those rights, they were also required to hold off questioning and attempting to obtain information from him. [ 24 ] The accused maintained he repeatedly asked to call a lawyer.

However, he acknowledged that one of the officers contacted Legal Aid duty counsel by calling an 800 number. He also acknowledged he spoke to that counsel. However, Mr. Burgar maintained he was not satisfied with the advice he received. He testified that the lawyer he spoke to did not allow him to present his point of view. The lawyer simply told him to listen. The lawyer also told him to submit to the taking of the DNA sample. [ 25 ] Mr. Burgar submitted he was not satisfied with the lawyer's advice. He told the police this and asked to speak to another lawyer.

He maintained he was not given an opportunity to do so. In these circumstances, the accused argued the execution of the DNA warrant was invalid because he was not given the opportunity to seek legal advice. [ 26 ] With respect to point 3, Mr. Burgar said that on September 26, 2012, when Constable Bonnett attended to executed the DNA warrant, he was detained and that detention turned into a de facto arrest. The accused maintained he was detained for two purposes. One of the purposes of his detention was to facilitate the execution of the DNA warrant.

However, the other purpose was to allow the police to question him further in the hope the police could elicit a confession.

[27] The accused submitted that when the police questioned him about the 1999 incident, separate from the discussions regardingthe execution of the DNA warrant, they ought to have read the s. 10 Charter rights before they questioned him. The accused furthersubmitted that not only was he detained when the police visited him at the correctional facility and asked him questions relating to theinvestigation of the 1999 sexual assault, but also the detention resulted in a de facto arrest. [28] I asked Mr.

Burgar what evidence he was asking me to exclude by virtue of the alleged s. 10 breach given that the Crown hadnot submitted or relied on any statements made by him to the police on September 26, 2012, except those statements relating to theexecution of the DNA warrant. [29] Mr. Burgar noted Constable Bonnett testified in court that she believed she had sufficient grounds for an arrest on September26th, 2012, but did not arrest him at the time because he was in custody. This point was raised again by Mr.

Burgar when he argued hehad been unlawfully gated on December 9, 2012, when he was detained at the correctional facility once he had finished serving hissentence on another matter. The purpose of the detention was to allow the RCMP to arrest him on the charge that is now before thecourt. [30] The accused's argument in this regard can be summarized as follows. The police officer who dealt with the DNA sample,Constable Bonnett, told the court she believed she had sufficient grounds to make an arrest at the time she executed the DNA warrant. However, she did not do so.

As a result, the accused completed the sentence he was serving on another matter. Then, on December 9,2012, when the accused was set to be released, an arrest warrant was issued by the police on the 1999 sexual assault charge. Accordingly, the accused was not released but instead he was held in custody at the correctional facility so he could be transferred to thecustody of the RCMP. [31] My understanding of Mr. Burgar's position is that there were two periods of detention. The first detention, according to theaccused, occurred when he was placed in an interview room at the correctional facility.

At that point, he was detained on two matters. One matter was for the execution of the DNA warrant. The other matter was for questioning about the alleged incident in the 1999sexual assault now before the court. [32] Mr. Burgar argued that a de facto arrest occurred at the time of the interview on September 26, 2012.

He maintained he wasdenied his right to challenge that arrest in a timely manner because it was not made official until his sentence on another matter wascompleted. [33] The accused also argued there was further delay from December 9, 2012, when he was to be released until he was broughtbefore a judge on December 10, 2012, at 3:00 p.m. This was approximately 31 hours after he had been gated. The accused maintainedhe could have been brought before a judge any time between September 26, 2012, and December 9, 2012.

He maintained he wasarbitrarily detained and thus a stay of the charge should be entered by the court. [34] As to point 4, the quality of the initial investigation, as I have already noted the accused asked that his submission on this pointbe dealt with at the end of the trial. The Crown agreed this was appropriate and, therefore, I will not deal with that submission at thisjuncture. Analysis [35] I now turn to my analysis. The first issue I will address is, was the DNA warrant obtained by the police on September 25, 2012,invalid? [36] Sections 487.042 to 487.092 of the Criminal Code were enacted in 1995.

These sections allow warrants to be issued and set outprocedures for the taking of bodily substances for DNA analysis without consent.

Section 487.05 allows a Provincial Court judge toissue a warrant for the taking of bodily substances for forensic DNA analysis where there are reasonable grounds to believe that adesignated offence has been committed.

Section 487.04 provides that a designated offence means either a primary designated offence ora secondary designated offence. [37] Sexual assault under s. 271 is classified as a primary designated offence, as is indecent exposure under s. 173.2 where thatexposure is made to a person who is under the age of 16 years.

Samples of bodily substances taken under a DNA warrant may be usedfor limited purposes, namely, for the purpose of forensic DNA analysis in the course of an investigation of the designated offence. [38] The case law makes it clear that the taking of bodily substances under a DNA warrant clearly interferes with the subject's bodilyintegrity. However, under a properly issued DNA warrant, the degree of offence to the physical integrity of the person is relativelymodest; see R. v. S.A.B., 2003 SCC 60.

In that case, the Supreme Court of Canada found that in general terms the DNA warrantprovisions of the Criminal Code are constitutional and strike an appropriate balance between the public interest in effective criminal lawenforcement for serious offences and the rights of individuals to control the release of personal information about themselves as well astheir right to dignity and physical integrity. [39] In S.A.B., the Supreme Court of Canada rejected the appellant's argument that DNA warrants should only be available as a last-resort investigative tool.

The court found that although it would have been open to Parliament to provide for the use of forensic DNAanalysis as a last-resort investigative technique, that was not a prerequisite condition for constitutional compliance. [40] In S.A.B., the court also made it clear that the appropriate standard for review of a DNA warrant is the reasonable groundsstandard. The appellant in that case argued that obtaining DNA samples which violate bodily integrity and force self-conscriptionrequired a higher standard. The court did not agree.

It said the standard of reasonable grounds is well recognized in the law and thecourt saw no reason to adopt a higher standard in the case of DNA warrants. [41] In this case, Mr. Burgar has asked me to review a DNA warrant issued by one of my brother judges. The standard of reviewthat applies in such circumstances was adopted by various British Columbia courts and other courts from the decision; R. v. Garofoli(1990), (SCC), 60 C.C.C. (3d) 161. In such a case, a reviewing judge must not substitute his or her view for that of the

authorizing judge. If, based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. Moreover, the court conducting such a review is not strictly limited to the paragraphs in the ITO. In some cases, the evidence heard on the voir dire can be used to amplify the materials placed before the authorizing judge. However, such amplified evidence must be used carefully. [ 42 ] I now turn to the specific issues raised by the accused in this case.

First, the accused submitted there was insufficient evidence in the ITO to conclude that the sexual assault alleged had taken place. He also suggested there was no corroborating evidence as required by law. Both these points are without merit. [ 43 ] The ITO clearly, but briefly, sets out the allegations made by the complainant, namely, that an unknown male had exposed his penis and had masturbated. While masturbating, the male attempted to pull the complainant's face and head towards his penis. Upon reaching climax, the male ejaculated on the complainant and fled the area. This is a

summary of the information provided by Constable Bonnett in the ITO. [ 44 ] The ITO also contains details of the investigation and the incident based on a report written by Constable Lee shortly after the incident. The information contained in the ITO meets the reasonable grounds standard. Moreover, the accused is wrong in law in arguing that corroboration is required. [ 45 ] In F.H. v. McDougall , [2008] 2 S.C.R. 41 , the Supreme Court of Canada considered whether corroboration was necessary in the context of a civil case brought by a student as a result of his experiences in a residential school.

The court concluded that requiring corroboration would elevate the evidentiary requirement in a civil case above that in a criminal case. It noted there is no longer a requirement for corroboration in sexual assault cases. It also noted that modern criminal law has rejected the previous common law and later statutory requirement that allegations of sexual assault be corroborated in order to lead to a conviction.

The need for corroboration was removed by legislation and the current Criminal Code in s. 274 expressly stipulates that no corroboration is required for convictions in sexual assault cases. [ 46 ] Second, the accused argued the police should have done more in relation to investigating the scene of the crime in 1999. He also argued the police should not have accepted the complainant's evidence as credible. His arguments in this regard are also without merit.

There is ample information in the ITO to meet the reasonable grounds standard for the issuance of a DNA warrant. [ 47 ] I wish to make it clear that on this point I am talking about the DNA warrant only and I realize that Mr. Burgar wants to make further arguments about the quality of the initial investigation by Constable Lee. [ 48 ] Third, the accused argued the DNA warrant was not valid because it refers to a match between DNA found on the clothing of the complainant and a court-ordered DNA sample taken from the accused pursuant to an order made on June 29, 2012, following a conviction in Surrey.

The accused argued that the Provincial Court judge who made the June 29, 2012, order was in error. He also argued that his conviction on that incident exposure charge and the judge's issuance of the DNA order are under appeal. He is currently awaiting the results of that appeal. [ 49 ] A review of the case law on a similar argument is set out in R. v. Newell , 2009 NLCA 18 .

In that case, the Newfoundland Court of Appeal considered whether evidence of blood samples obtained pursuant to a DNA warrant constituted an unreasonable search and seizure in circumstances where the DNA order obtained for the matched sample from the appellant was subsequently found to be invalid. In that case, the National DNA Data Bank received a DNA sample from Mr. Newell pursuant to a DNA order made following his conviction for a robbery. During the period Mr. Newall was appealing the robbery conviction, biological evidence from another, but subsequent, crime scene was found to match his DNA profile.

The robbery conviction was eventually overturned and the DNA order issued pursuant to that conviction was set aside. [ 50 ] The police used the information about the DNA match as the basis for an application to obtain a DNA warrant to obtain blood samples from Mr. Newell for comparison with biological evidence from other crime scenes. At the time they did so, the police knew an appeal was in process.

However, they did not know a decision had been rendered and that the DNA order had been set aside. [ 51 ] Those circumstances are very different from the circumstances before this court and may be considered more egregious. At the trial on the new charges, the trial judge ruled Mr. Newell's s. 8 rights were breached when the police used the information about the match of his DNA profile to obtain a warrant after the DNA order that was the basis for the match had been set aside. [ 52 ] The Crown appealed the acquittal that resulted from the exclusion of evidence.

At the appeal, the Crown argued the matches were made during the appeal period of the original robbery conviction and before the DNA order that had been made following that conviction had been set aside. Consequently, argued the Crown, Mr. Newell's DNA profile was legitimately in the convicted offender's index. The Crown argued there was no reason why the matches could not provide reasonable and probable grounds to apply for a DNA warrant in relation to the new suspected offences. [ 53 ] Mr.

Newell argued that upon the setting aside of the DNA order made following the robbery conviction, his privacy interests in the previously obtained DNA sample was revived. Consequently, he argued the subsequent use of the information about the sample to obtain a new DNA warrant was unreasonable search and seizure. [ 54 ] The court concluded the information Mr. Newell sought to contain by his claim to privacy had already escaped the possession and control of Mr. Newell. Once the information about the DNA match had been conveyed to the police officers investigating the two crime scenes in a lawful manner, Mr.

Newell could have very little expectation of privacy regarding the information. [ 55 ] The court further noted there was case law to support the conclusion that Charter values were not unduly diminished by interpreting the legislation as contemplating the use of information derived from the DNA sample after a ruling setting aside the original order, where the information had been obtained while the original order was operative. Accordingly, the court concluded the trial judge had erred in holding that Mr. Newell's rights under s. 8 of the Charter had been violated.

It allowed the appeal, set aside the acquittal, and remitted the matter to a trial court for a new trial.

[ 56 ] In the case before me, the facts are even stronger than the facts in Newell because the order made by the judge following the June 29, 2012, conviction, to take a DNA sample from Mr. Burgar was only under appeal, but no decision has been made. Consequently, at the time the ITO prepared by Constable Bonnett was considered by the Provincial Court judge in this case, the accused's DNA sample was lawfully in the databank. Referring to the sample in the ITO was not a breach of the Charter . [ 57 ] Fourth, this is still in regard to the challenge to the ITO, Mr.

Burgar argued there was no evidence before the issuing judge that he was a party to the sexual assault. I am satisfied that the DNA hit was sufficient evidence to raise an inference that Mr. Burgar was a party to the offence of sexual assault for the purpose of obtaining the DNA warrant. [ 58 ] I now turn to the next issue which is, was the warrant executed in an unlawful manner? The accused argued that even if the DNA warrant obtained by Constable Bonnett was lawful, it was not executed in a lawful manner.

The accused maintained he was not provided with an opportunity to retain and instruct counsel. [ 59 ] The evidence in regard to this point is that Constable Bonnett attended at the correctional facility with Constable Brown to execute the DNA warrant. The accused indicated he wanted to speak to counsel. Constable Brown dialed an 800 Legal Aid number and left a message, but initially did not receive a response. She later telephoned again and reached a lawyer by the name of Blake Scott. Once Mr. Scott was on the phone, the two officers left the room so that the accused could speak to Mr.

Scott in private. [ 60 ] When the officers re-entered the room, the accused told them that the person he spoke to was not a lawyer, but an idiot. He indicated the lawyer had told him not to talk, but just to listen. The lawyer told him what he was supposed to do, but did not answer any questions. He just hung up. The accused said he did not talk to the lawyer, instead the lawyer talked to him. The accused said he wanted to talk to a lawyer and not have some idiot tell him he should give the sample. [ 61 ] Mr.

Burgar told the police he had already objected and said the warrant was invalid, but the lawyer told him to give the sample because, if he did not, the police would take it anyway. The accused did not think that was necessarily the correct answer. Constable Bonnett told the accused they were not going to leave that day until they had taken his sample. She also pointed out that on the warrant it said they could use as much force as necessary. The accused indicated he knew that.

The police officer told him that they did not want to do that, but they wanted to take the sample from him with his cooperation. [ 62 ] The police officer told Mr. Burgar he could talk to another person from Legal Aid if he wanted to. She noted that she did not know if he was going to get different advice, but the police officer wanted to give him all his rights. By the same token, she did not want to stand around all day waiting for telephone calls. The accused acknowledged that such an exchange occurred.

However, he asked to speak to another lawyer on a number of occasions, the police kept telling him he could do so, but they never did anything about it. [ 63 ] After reviewing the evidence given on the voir dire, I am satisfied the evidence establishes that he was given the opportunity to speak with counsel. However, the advice he received apparently did not coincide with his view of the matter.

Additionally, I find that on at least two occasions the accused was told by Constable Bonnett that if he wanted to speak to another lawyer he could do so. [ 64 ] The fact Constable Bonnett advised him that the DNA warrant permitted them to take the sample using as much force as necessary, in my view, did not constitute a threat. I do not accept the accused's evidence that he repeatedly asked to speak to another lawyer and that he was simply stonewalled by Constable Bonnett.

Where there is a difference on this point between the evidence of Constable Bonnett and the evidence of the accused, I accept the evidence of Constable Bonnett over that of the accused. Accordingly, I find that the warrant was not executed in an unlawful manner. [ 65 ] The next point is, was the accused unlawfully detained on September 26, 2012, or on December 9, 2012? The accused further argued that he was unlawfully detained on September 26, 2012, when Constable Bonnett and the other officer asked him questions relating to the investigation of the 1999 sexual assault. [ 66 ] Mr.

Burgar said he was not advised of his right to counsel separately for the 1999 offence, although it is clear he was given a right to counsel with respect to the execution of the DNA warrant.

His argument is that he should have been given his right to counsel twice, the first time in relation to the DNA warrant and the second time when the police began questioning him about the 1999 sexual assault allegation. [ 67 ] The Crown has not tendered evidence relating to any comments or discussions that the accused may have had with the police on September 26, 2012, other than the discussions relating to the execution of the DNA warrant. Accordingly, this particular issue is somewhat moot given that there is no related evidence to exclude if I were to find a breach of Mr. Burgar's s. 10 rights.

Accordingly, I see no utility at this juncture in embarking on an analysis of this alleged breach. [ 68 ] The accused told the court that he intends to make an abuse of process argument at a later stage in these proceedings. Accordingly, although I decline to make a ruling at this stage on this point, the accused is free to raise this issue as part of his abuse of process argument if he wishes.

My comment in this regard should not be taken as a direction that he do so. [ 69 ] The accused also argued that the detention on September 26, 2012, for the purpose of questioning him on the 1999 sexual assault charges resulted in a de facto arrest and he was denied his right to challenge the arrest in a timely manner because he was not formally arrested at the time. [ 70 ] Additionally, the accused argued that he was unlawfully gated on December 9, 2012, when he was detained at the correctional facility once he was finished serving his sentence on another matter.

He maintained that was also a breach of his right to be given a bail hearing in a timely manner. The accused maintained he could have been brought before a judge for a bail hearing on the charges now before the court any time between September 26, 2012, and December 9, 2012. He maintained he was arbitrarily detained and a stay of the charges should be entered by the court. [ 71 ] First, I begin by addressing the point that Mr. Burgar should have been arrested and taken before a judge for bail on September 26, 2012.

The accused relied on the fact that Constable Bonnett testified she had reasonable grounds for an arrest on the 1999 charges at

that time, that is, on September 26. However, it is clear from Constable Bonnett's evidence that she was still in the process of conducting an investigation into the 1999 incident. She had taken blood samples from him that day and was awaiting results of the analysis of those DNA samples before deciding whether to arrest him. [ 72 ] Constable Bonnett candidly admitted both in direct and cross-examination that she had grounds for arrest, but she wanted to complete a full investigation before contacting the Crown with respect to laying charges.

She acknowledged there may have been cases where a person was arrested simply on the basis of a DNA match, but she has not done so herself. She testified that, in this situation, the police wanted to obtain additional information. [ 73 ] She noted there are a number of factors to take into account in deciding whether to arrest a person. In this case, none of the factors were of concern. The accused was in custody and there was no particular urgency in the circumstances. Constable Bonnett said that the matter was referred to Crown counsel, but she could not recall the exact date this was done.

She acknowledged that the date of December 7, 2012, sounded like the right date. [ 74 ] On the evidence, I have concluded there was no requirement for the police to arrest the accused on September 26, 2012. The police were entitled to complete their investigation and, in the circumstances, to submit the matter to Crown counsel to seek charge approval.

The conduct of Constable Bonnett and her colleague in interviewing the accused did not amount to a de facto arrest. [ 75 ] Second, I will next address the accused's argument that there was a further delay from December 9, 2012, when he was set to be released, till the afternoon of December 10, 2012, when he was brought before a judge for a bail hearing. He submitted it took approximately 31 hours from the time he should have been released from custody, having completed a sentence on other matters, to the time that he was brought before a judge for the 1999 sexual assault charge. [ 76 ] Section 503(1) (

a) of the Criminal Code provides that a peace officer who arrests a person with or without a warrant shall cause the person to be detained in custody and to be taken before a justice to be dealt with according to law. The

section further provides that where a justice is available within a period of 24 hours after the person has been arrested by or delivered to a peace officer, the person shall be taken before a justice without unreasonable delay and, in any event, within that period. [ 77 ] This

section clearly establishes the outside time limit during which an arrested person must be brought before a justice. This

section is not permissive, but mandatory. It directs that an arrested person be taken before a justice, if one is available, within 24 hours of the arrest. As noted in the case law, this

section does not give the police an unqualified right to keep a person in custody for investigation for 24 hours. [ 78 ] On the evidence in this voir dire, I have concluded that the delay in bringing Mr. Burgar before a justice for a bail hearing was unreasonable as that term is used in s. 503(1) (a). This was not an unforeseen arrest in that charges had been approved by the Crown and an Information laid on December 7, 2012.

The police were aware the accused was in custody and they could have taken steps to arrest him before his release or, alternatively, to arrest him immediately upon his release, but to ensure that the provisions of s. 503 were met. In this case, they did not do so. I, therefore, conclude that the failure to take the accused before a justice within the 24-hour period specified in s. 503 amounted to a breach of s. 9 of the Charter .

Summary 1. I find that the DNA warrant obtained by Constable Bonnett on September 25th, 2012, was validly obtained and issued. There was sufficient information placed before Judge Romilly, the issuing judge, upon which he could have granted the authorization. Accordingly, as the reviewing judge, I must not substitute my view for that of the issuing judge.

In particular, I am satisfied that information was placed before the issuing judge to allow him to conclude that a sexual assault had taken place, that the accused was a party, and that the police had met all the prerequisites for the issuance of a warrant set out in s. 487.05. Furthermore, I am satisfied on the basis of the current Criminal Code and the case law that corroboration is not required. Additionally, the fact that the ITO for the DNA warrant referred to the court-ordered sample of the accused's DNA, which is now under appeal, does not render the issuance of the warrant invalid.

When I say the court-ordered sample, that is the June 29, 2012, sample. 2. I find that the warrant was executed in a lawful manner and in accordance with the provisions of the Criminal Code . In particular, I find the accused was advised of his right to counsel and was given an opportunity to speak to a lawyer and did so, albeit he was not satisfied with what the lawyer told him. I further find that he was told by Constable Bonnett on at least two occasions that if he wanted to speak to another counsel, he could do so. Accordingly, I find that the accused had ample opportunity to exercise his right to counsel.

There was no breach of his Charter rights in this regard. 3. I find that although the accused was detained by the police on September 26, 2012, and interviewed (this is the interview regarding the 1999 sexual assault and not the interview relating to the DNA warrant) that detention did not turn into a de facto arrest. I further find although Constable Bonnett said that at that time she had reasonable and probable grounds for an arrest, she chose not to do so because she wanted to continue the investigation and obtain additional information.

I conclude there was no requirement for Constable Bonnett to arrest the accused on September 26, 2012. Constable Bonnett was entitled to complete her investigation including submitting the matter to Crown counsel to seek charge approval. Accordingly, there was no de facto arrest or actual arrest and there was no need to take the accused before a justice for a bail hearing. 4. I find the accused was detained on December 9, 2012, and at some point between the morning of December 9, 2012, and the afternoon of December 10, 2012, he was placed under arrest for this offence by the RCMP.

Approximately 31 hours elapsed before Mr.

Burgar was taken before a justice. I conclude that the delay in bringing the accused before a justice for a bail hearing was unreasonable and amounted to a breach of s. 9 of the Charter . Matters to be Addressed [ 79 ] Having given my ruling on the majority of the Charter challenges raised by Mr. Burgar, I note that the following remain to be addressed: (

a) the abuse of process argument; (

b) the issue with respect to Constable Lee's investigation or lack thereof as suggested by the accused which may form part of the abuse of process argument; and (

c) the remedies available to the accused for any breaches found by this court. (RULING CONCLUDED)