2021 SKPC 19, 2021 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 19 Date: February 25, 2021 Location: Saskatoon, SK _____________________________________________________________________________ In re: XY and s. 487.05 Criminal Code FIAT Q.D. AGNEW , J [ 1 ] This is an application for a DNA warrant with respect to a suspect, XY, pursuant to s. 487.05(1) of the Criminal Code . That subsection allows for such a warrant to be issued if certain preconditions are satisfied. Subsection 487.05(2) lists specific criteria for the Court to consider in deciding whether or not to grant the order requested. Those subsections read as follows: 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).

(2) In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including (

a) the nature of the designated offence and the circumstances of its commission; and (

b) whether there is (

i) a peace officer who is able, by virtue of training or experience, to take samples of bodily substances from the person, by means of the investigative procedures described in subsection 487.06(1), or (ii) another person who is able, by virtue of training or experience, to take, under the direction of a peace officer, samples of bodily substances from the person, by means of those investigative procedures. [ 2 ] The significant facts set out in the Information to Obtain in the present matter are as follows: (

a) XY, the desired target of the DNA warrant, was observed taking the keys to a particular vehicle; (

b) later that day or evening, that vehicle was stolen from where it was parked. There is no direct evidence as to who stole it; (

c) eight days after the vehicle was stolen, it was found. A cigarette butt was found in the vehicle; (

d) DNA was found on the cigarette butt. The DNA was from a person of the same sex as XY. [ 3 ] Based on the above facts, the police seek a warrant to obtain DNA from XY, in order to see if their DNA matches that found on the cigarette butt. [ 4 ] With respect to the enumerated requirements of the legislation, I am satisfied that there are reasonable grounds to believe that: 1. the offence alleged (theft of a motor vehicle, s. 333.1) is a designated offence. It is a secondary designated offence under clause (

a) of the definition of that term in s. 487.04, namely it is an offence which may be prosecuted by indictment and which has a maximum punishment of five years or more - s. 487.05 (1) (a); 2. a bodily substance has been found within a thing associated with the commission of the offence, namely within the vehicle which is the subject of the offence - s. 487.05 (1)(b)(iv); 3.

XY was a party to the offence alleged - s. 487.05 (1) (c); and 4. forensic DNA analysis of XY’s DNA will provide evidence as to whether or not the DNA on the butt belongs to XY. [ 5 ] However, the legislation is clear that a DNA warrant does not issue automatically upon the Information to Obtain simply checking the boxes of s. 487.05(1) (a)-(d). The wording after clause (

d) lists a further requirement, namely that issuing judge must be “satisfied that it is in the best interests of the administration of justice” that the warrant be issued. [ 6 ] The Supreme Court of Canada made it clear that this is not mere verbiage but is a separate requirement for issuance of the warrant; indeed, the Court considered that wording to be an important component of the constitutionality of the DNA warrant process: see R v S.A.B. , 2003 SCC 60 , at para 54 [2003] 2 SCR 678, ( S.A.B. ). [ 7 ] The purpose of s. 487.05(2) is to provide guidance in the application of this final requirement.

This is shown by the wording of the subsection, which specifies that the judge is to consider “all relevant matters” in “considering whether to issue the warrant”. It then goes on to list some exemplars of what the judge should consider, including the nature of the offence, the circumstances of its commission and whether or not there is someone available to take DNA samples in the approved manner. None of those specific considerations, which the judge “shall” have regard to, are needed to determine whether or not s. 487.05(1) (a)-(

d) are satisfied.

Accordingly, the requirement in s. 487.05(2) that the judge consider “all relevant matters” in deciding whether or not to issue the warrant is at least part of how the judge is to determine whether or not issuing the warrant is in the best interests of the administration of justice.

I do not find anything in the wording of either subs. (1) or subs. (2) to suggest that the judge’s determination of the best interests of the administration of justice is to be made solely on the basis of the factors set out in subs. (2); indeed, subs. (2) itself requires the judge to consider “all relevant matters”. [ 8 ] With respect to the present matter, on the basis of the Information there is a high degree of confidence that XY stole the keys to the vehicle; there is at most an inference that they subsequently stole the vehicle itself.

The vehicle was recovered eight days after it was stolen, and there is no evidence as to what may have been done with it during that period, or how many people may have been in it. [ 9 ] Taking a DNA sample from a person is obviously intrusive, albeit not overly so. The Supreme Court of Canada in S.A.B. (para. 44 ) stated, “the taking of bodily samples under a DNA warrant clearly interferes with bodily integrity. However, under a properly issued DNA warrant, the degree of offence to the physical integrity of the person is relatively modest”.

The Court also noted the high degree of privacy interest an individual has in their DNA ( S.A.B. , para. 48 ): The informational aspect of privacy is also clearly engaged by the taking of bodily samples for the purposes of executing a DNA warrant. In fact, this is the central concern involved in the collection of DNA information by the state. Privacy in relation to information derives from the assumption that all information about a person is in a fundamental way his or her own, to be communicated or retained by the individual in question as he or she sees fit ( per La Forest J. in Dyment , supra , at p. 429).

There is undoubtedly the highest level of personal and private information contained in an individual's DNA. [ 10 ] Thus, the application before me is for a somewhat-intrusive procedure to be done to XY against their will, engaging a very high privacy issue. Balanced against that is the evidence which might be captured by matching XY’s DNA against that found on the cigarette butt. What, then, might be useful from such matching? [ 11 ] If there is no match, all it will show is that XY did not smoke that cigarette. This does not mean that XY was not in the vehicle, nor that XY did not steal the vehicle.

They could have stolen it and driven it around for the entire eight days it was missing but not left a used cigarette butt behind. In fact, there is no evidence that XY smokes. [ 12 ] If the DNA on the cigarette butt matches XY’s DNA, what then? This would increase the likelihood that, at some point during the eight days, XY was in the vehicle. This evidence is of minimal use in showing that XY stole the vehicle.

Had the vehicle been recovered shortly after it was stolen, the presence of XY’s DNA in the vehicle could be significant; after eight days, it becomes less useful in showing that they were a party to the theft of the vehicle. [ 13 ] XY’s DNA will therefore neither eliminate them as a suspect in the theft (if not a match), nor provide the police with much additional evidence of XY’s culpability in the theft (if a match). Against this relative lack of utility are the issues of XY’s privacy and bodily integrity.

Balancing these considerations together, I am not satisfied that it is in the best interests of the administration of justice to issue the warrant. I accordingly decline to do so. ___________________________ Q.D. Agnew, J