2019 QCCA 77, 2019 QCCA 77

D'Amico c. R. 2019 QCCA 77 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005761-141 (500-01-009195-089) DATE: January 22, 2019 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. MARTIN VAUCLAIR, J.A. SIMON RUEL, J.A. GIOVANNI D’AMICO APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The appellant appeals from a judgment rendered by the Court of Quebec, District of Montreal (the Honourable Judge Isabelle Rheault), rendered on October 21, 2014, which convicted him on the five counts consisting of three sexual assaults, one sexual assault causing bodily harm and one assault. [ 2 ] For the reasons of Thibault, Vauclair, and Ruel, JJ.A., THE COURT : [ 3 ] DISMISSES the appeal. [ 4 ] For his part, Vauclair J.A. dissents on a question of law. He concludes that the police operation in obtaining the appellant’s DNA was done in violation of

section 8 of the Charter but he refuses to exclude the evidence as per section 24(2) of the Charter . FRANCE THIBAULT, J.A. MARTIN VAUCLAIR, J.A. SIMON RUEL, J.A. Mtre Alexandre Bien-Aimé-Bastien SHADLEY BIEN-AIMÉ Mtre Philipe Knerr SCHURMAN LONGO GRENIER For the appellant Mtre Maude Payette CRIMINAL AND PENAL PROSECUTING ATTORNEY For the respondent Date of hearing: September 20, 2017

REASONS OF VAUCLAIR, J.A. [ 5 ] Is the state free to collect the DNA of persons under suspicion of criminal activity by tricking them into giving up their DNA, keeping those samples indefinitely and using them as they see fit, without any prior authorization and without supervision of any kind? This is one of the many questions raised by this appeal. [ 6 ] The appellant was suspected of having committed sexual assaults on four women who were sex workers.

He was charged and convicted of three counts of sexual assault, one count of sexual assault causing bodily harm and one count of assault on four different victims. The events occurred in 2002, 2003, 2004 and 2005. Background [ 7 ] Between 2002 and 2005, in Montreal, the four complainants were victims of sexual assault. On the evidence, these facts set the background. [ 8 ] In 2002, J. H. (H.) was assaulted and thrown out of a black truck. A witness at the scene called the police and the vehicle bearing the licence plate number [...] was intercepted moments later with the appellant at the wheel.

That vehicle belonged to the appellant’s father. The victim, intoxicated at the time, did not collaborate with the police. Police surveillance of the appellant yielded some pictures of him, but nothing else. [ 9 ] In 2003, L. N. (N.) and, in 2005, C. G. (G.) were also sexually assaulted and they reported the assaults to the police. N. gave a plate number: [...]. Both were brought to the hospital for forensic examination.

In each case a forensic evidence kit was used and “crime scene DNA” was found and kept. [ 10 ] In 2008, the murder of Nicole Blanchette (Blanchette) came to the attention of the Montreal Police Sexual Assaults Unit. Blanchette was also a sex worker in downtown Montreal and her murder, according to the police, recalled the modus operandi of the sexual assault cases outlined above. The appellant was a suspect in these cases. [ 11 ] At that time, the police knew from preliminary forensic analysis that DNA comparisons with the Blanchette murder excluded without doubt the appellant as the perpetrator.

In fact, the murderer eventually confessed and pled guilty. [ 12 ] Nevertheless, with the objective of retrieving “abandoned DNA”, police followed the appellant to no avail. Consequently, they imagined a scenario to get the appellant’s DNA. Deploying an undercover police officer, they succeeded. It is the object of one of the grounds of this appeal and I later give more details regarding this issue. [ 13 ] No judicial authorization was requested.

The “abandoned DNA sample” was processed through the “crime scene index” of a “Local DNA Data Bank”, as opposed to the “National DNA Data Bank” established by the DNA Identification Act , SC 1998, c 37 . Indeed, the evidence shows that police forces in the Province use a “Local DNA Data Bank” organized by the Quebec forensic science laboratory (“Laboratoire de sciences judiciaires et de medicine légale”, hereinafter “the Laboratory”). [ 14 ] DNA forensic analysis and comparisons were requested and done with the “abandoned sample”.

There was a match and a possible match with the G. and N. sexual assault cases. [ 15 ] On July 16, 2008, the appellant was arrested and a warrant for DNA samples was obtained. [ 16 ] The police reactivated the file of Cl. F. (F.). She testified to a sexual assault by the appellant in June of 2004. He was a returning client and she knew him by name. At the time, she reported the assault to a community support group for sex workers in order to issue a general warning. She had written down the plate number [...] after the assault. [ 17 ] At trial, many voir dires were held.

Among others, the trial judge dismissed an O’Connor motion, a motion to separate the indictment, a motion to exclude the DNA evidence and a motion to exclude prior extrajudicial statements from G., deceased shortly before the trial begun. The trial judge granted the Crown’s motion to admit similar fact evidence, consisting of the different counts of the indictment. Grounds of appeal [ 18 ] The appellant raises eight questions on appeal: I. Did the Honourable Trial Judge err in failing to order the full disclosure of the evidence contained in the Nicole Blanchette murder investigation file? II.

Did the Honourable Trial Judge err in dismissing the appellant’s motion to sever the counts of the indictment? III. Did the Honourable Trial Judge err in admitting into evidence the results of the analysis of the Appelant’s DNA? IV. Did the Honourable Trial Judge err in permitting the prosecution to lead similar fact evidence? V. Did the Honourable Trial Judge err in admitting into evidence four out of court statements made by G. and convicting the appellant of her sexual assault as a result? VI. Did the Honourable Trial Judge err in convicting the appellant of the sexual assault and threatening of H.?

VII. Did the Honourable Trial Judge err in finding that identification, in the case of N., had been proven beyondreasonable doubt? VIII. Did the Honourable Trial Judge err in the evaluation of the evidence regarding the alleged sexual assault of F.? [19] Because grounds V and VI have bearing on ground IV, I will invert their order. [20] As I will explain, I find that the police obtained the appellant’s DNA illegally, but that the evidence, however, should beadmitted. I will not give effect to the other grounds and consequently, I propose to dismiss the appeal. I.

Non-disclosure of the Murder Investigation File [21] The murder of Blanchette was resolved with the conviction of Bernard Armelin, who confessed to the crime.

At trial, theappellant sought the disclosure of the police investigation file on Armelin, because the investigators had initially seen a similar modusoperandi between that murder case and two of the sexual assault cases brought against the appellant. [22] On September 29, 2011, invoking Stinchcombe, (SCC), [1995] 1 S.C.R. 754 and after holding a voir dire, thetrial judge ordered the disclosure of the information concerning the appellant directly in the Armelin murder file. The judge found thatthe information did not add much to the evidence already disclosed.

The trial judge took the two-step approach set out by the SupremeCourt in O’Connor, (SCC), [1995] 4 S.C.R. 411 and McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66. She decidedthat the appellant had met his burden to show that the evidence was likely relevant, but after reviewing the file, she concluded that therewas no true relevance in the case against him. [23] The appellant advances a general argument pertaining to the relevance of this investigation file. He does not argue that the trialjudge erred in law.

The appellant, however, did not provide the Court with the documentation reviewed by the trial judge, and it istherefore impossible for the Court to examine the relevance of its content. In this context, the argument of the appellant must fail. [24] Further, the appellant argues that the trial judge erred when she did not reconsider her initial decision after she allowed third-party suspect evidence to be adduced. True, three years later, on April 24, 2014, the trial judge did authorize such evidence.

Appellantsees these decisions as contradictory. [25] The appellant does not suggest that he reiterated his disclosure demand after the latter decision. Without deciding if theproposed defence could have been sufficient to revisit the first disclosure decision, it is not for a judge on his or her own initiative toreopen decided issues. The appellant did not pursue the matter before the trial judge and therefore cannot raise this issue on appeal. Thushis argument must fail. II.

Refusal to Sever the Counts [26] The decision to sever the counts or not is within the discretion of the trial judge, the exercise of which must be guided by theinterest of justice. In Last, 2009 SCC 45 , [2009] 3 S.C.R. 146, at para. 16, the Supreme Court wrote: [16] The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is requiredin the interests of justice, as per s. 591(3) of the Code.

The interests of justice encompass the accused’s right to be tried on the evidenceadmissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. Theobvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count. [27] The application to introduce similar fact evidence and the severance application share some resemblance.

In the latter, the onusis on the defence to convince the judge to sever counts, while in the former it is on the Crown: see Cartier, 2015 QCCA 329, at para. 44.The “test for admitting similar fact evidence is more stringent…than the test for determining whether multiple counts should be joined orsevered”, since the judge needs only, “to assess whether [the former] could “possibly” be met in the future”: Blacklaws, 2012 BCCA217, at para. 42, confirmed at 2013 SCC 8 , [2013] 1 S.C.R. 403. [28] While the test and the burden are different, the use of similar fact evidence at trial is a factor that helps capture how the interestsof justice may be served without creating prejudice to the accused: “[i]n many cases a ruling allowing similar fact evidence will favour ajoint trial since the evidence on all incidents would have to be introduced in any event.”: Last, 2009 SCC 45 , [2009] 3 S.C.R.146, at para. 33; Cartier, 2015 QCCA 329, at para. 52; Laporte (PLR), 2016 MBCA 36, at para. 117; Mastronardi, 2014 BCCA 302, atpara. 27; Gamble, 2014 SKCA 101, at paras. 10-11; Waudby, 2011 ONCA 707, at para. 4. [29] The Crown’s intention to introduce similar fact evidence was an important consideration in refusing the severance application.In my view, no other factor standing alone would have justified a joint trial.

Correctly applying Arp, (SCC), [1998] 3S.C.R. 339, at para. 52 and Handy, 2002 S.C.R. 908, at para. 43, the trial judge acknowledged that: [7] All four alleged victims were prostitutes who were picked up by a white man driving a black truck, with grey or beige interior. [8] For three of the alleged victims, a licence plate was noted, which refers to the accused's father. [9] On one occasion, the accused was arrested shortly after the police had been called, behind the wheel of a truck bearing thatparticular licence plate. [10] Three of the alleged victims were abruptly sodomised without their consents. [11] DNA (although an issue in this matter), presumably belonging to the accused, was found inside the pants of one of the allegedvictims, and inside the rectum of another one. (see MS-7) [12] The Crown will eventually ask for a similar facts evidence motion to be granted and will do so as well, should the severance

motion be accepted. [13] This motion for similar facts evidence will be requested to show a system, a "modus operandi", a pattern of behaviour, not for thepurpose of identifying the accused. [14] At this stage, there is a probable possibility that such a motion would be likely to succeed, "the high degree of similarity"rendering "the likelihood of coincidence objectively improbable". [30] The trial judge was only required, at that stage, to conclude that it was possible that the test for similar fact evidence could bemet later: Cartier, 2015 QCCA 329, at para. 44. In my view, she did so without error.

The trial judge then turned her attention to theaccused’s intention to testify, another factor to be balanced in determining whether the counts should be severed. To that end, she statedthat the burden rests on the accused to “provide the trial judge with sufficient information to convey that, objectively, there is substanceto his testimonial intention”: Last, 2009 SCC 45 , [2009] 3 S.C.R. 146, at paras. 26-27. She concluded that the appellant did notmeet his burden. [31] The trial judge also assessed other factors.

She considered the common DNA evidence, the fact that the trial was proceedingbefore a judge sitting without a jury and, finally, the benefit to the administration of justice, which revolved mostly around theadmissibility of similar fact evidence. [32] The trial judge also considered —and the appellant contends that she attributed too much weight to this factor— thevulnerability of the potential witnesses and the fact that severing would cause considerable delays. I agree with the appellant that the trialjudge emphasized the need to accommodate the victims and to avoid delays.

The respondent, however, is correct in holding that“society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner” is an important consideration in thisanalysis: see Last, 2009 SCC 45 , [2009] 3 S.C.R. 146, at para. 16, Cross (1996), (QC CA), 112 C.C.C. (3d)410 (Que. C.A.). Even if these factors are relevant to the analysis, the judge “must consider and weigh cumulatively all the relevantfactors to determine whether the interests of justice require severance”: Last, [2009] 3 S.C.R. 146, at para. 44.

Here, the trial judgecommitted no error. [33] As the Supreme Court said, “[o]n an application to sever a multi-count indictment, the overarching criteria are the interests ofjustice”: Last, 2009 SCC 45 , [2009] 3 S.C.R. 146, at para. 1. The decision to join or sever an indictment is highly discretionaryfor both the Crown and the judge. When a judge acts judicially and the ruling does not result in an injustice, deference is required onappeal. In other words, absent an error on a question of law or an unreasonable decision, an appeal court will not intervene. No sucherrors were made in this case. III.

Admission into Evidence of the Appellant’s DNA Analysis [34] This appeal calls for an analysis of the constitutionality of the way in which police obtained the appellant’s DNA. In Usereau,2010 QCCA 894, my colleague Hilton wrote: 48 Mr. Usereau, however, goes further and contends that the collection of DNA evidence in this manner can give rise to legislativelyunauthorized covert banks of DNA evidence over which no control can ever be exercised. This apocalyptic view is highly speculative atbest. There is no evidence that any such covert banks exist or have ever existed.

Nor is there a risk that DNA profile obtained without awarrant under the regime provided for in the Criminal Code will be permanently maintained as if they had been obtained with a warrantand their destruction not subsequently ordered. 49 […] The time to consider the legality of samples maintained in a covert bank will arise if and when it is established that such abank exists, and an accused applies to exclude evidence derived from the use of his or her DNA samples in such a bank. [35] It seems that the time has come. [36] There is merit to this ground.

It involves the difficult question of whether police are authorized to actively gather “abandoned”DNA from citizens they suspect of being involved in criminal activity, to keep the DNA samples indefinitely and use them as they seefit.

Background [37] At trial, the appellant argued the illegality of the investigative tactic, which compelled him to “abandon” his DNA andcontested the use of his DNA analysis to incriminate him, thereby claiming a violation of his ss. 7 and 8 Charter rights. [38] How the police obtained the appellant’s DNA was not contested on the voir dire. [39] DNA was found on the “crime scenes” of the G. and N. sexual assault cases in 2003 and 2005 respectively. The appellant was asuspect. In 2008, another victim was found dead.

As I already outlined, a detective from the Montreal Police Sexual Assaults Unit saw asimilarity in the modus operandi, between the homicide and the other cases and informed his colleagues of the Major Crimes Unithandling the murder case. [40] On April 9, 2008, police were told that there was no DNA correspondence between samples found on the N. “crime scene” andon the Blanchette “crime scene”. [41] On April 9 and April 11, 2008, police followed the appellant in the hope that he would “abandon” some of his DNA, but to noavail. Police then set up a scenario to obtain his DNA.

They arranged a false business meeting with the appellant who operated a smallInternet-related services company. After an initial contact, another meeting was set in a café. The undercover police officer and theappellant talked business while each drank a cup of coffee. At one point, the undercover police officer rose to clear the table and took theappellant’s coffee cup to the counter for a colleague to pick it up. Police considered that the appellant “abandoned” his DNA at the café.

[ 42 ] The cup was sent to the laboratory and a DNA sample was obtained. [ 43 ] Police asked to compare it to the DNA sample from the Blanchette murder case and from the N. sexual assault case. It did not match the DNA samples in the murder file and thus, the appellant was eliminated as a suspect in that file. [ 44 ] However, it revealed a possible match with the N. case. It was also processed through the “crime scene index” of the “Local DNA Data Bank” and further comparisons were made.

A match with the G. case was established. [ 45 ] Several months later, police obtained a warrant to take bodily substances for forensic DNA analysis pursuant to s. 487.05 Cr. C. It confirmed the previous findings and further analysis confirmed that the appellant’s DNA matched the DNA found in the N. case. [ 46 ] Léo Lavergne (Lavergne) testified on the voir dire. He is the administrator of the National DNA Data Bank for Quebec.

He explained how the DNA Identification Act structure works, how samples of DNA, whether a single source or a mixed profile (DNA from more than one individual), from unknown sources are uploaded and updated from local data banks to the National DNA Data Bank for forensic comparison with the DNA profiles of convicted criminals. These profiles, however, are not kept in local banks and cannot be accessed at the local level. It is the responsibility of the Laboratory to feed the National DNA Data Bank with DNA materials. [ 47 ] Lavergne also explained the operation of the Local DNA Data Bank.

In Quebec, the Local DNA Data Bank has existed since 2006. Equivalents are found in Vancouver, Edmonton, Regina and Ottawa. These data banks essentially compile and keep various DNA samples that are not or cannot be shared with the National DNA Data Bank. [ 48 ] The National DNA Data Bank contained, and was limited to at that point in time, the “Crime Scene Index” and the “Convicted Offender Index”. In a nutshell, the first index contains DNA profiles derived from bodily substances found on designated offences’ crime scenes, thus DNA from potential perpetrators of the crime.

The second index contains DNA profiles derived from bodily substances of convicted offenders of designated offences taken pursuant to judicial authorizations. Comparison of DNA between the two indexes may reveal the implication of a convicted offender in an unresolved crime, where DNA was collected at the crime scene. Police are then able to obtain that person’s DNA with a judicial authorization or with the person’s consent.

The witness also explained that local data banks do not have access to the Convicted Offender Index. [ 49 ] Police may also obtain a warrant to collect someone’s DNA but it will be compared only to the sample or samples found on the specific crime scene to which this person is connected. The witness acknowledged that the law provides for a rigorous destruction

schedule of bodily substances when, as a result of the analysis, a person is no longer a suspect in the relevant investigation. [ 50 ] All local authorities have the responsibility to “upload”, through communication technology, the needed DNA samples to the National DNA Data Bank, creating thereby a national library of DNA found on crime scenes to be compared with DNA samples as the law permits and only as the law permits. [ 51 ] Some DNA samples are not uploaded to the National DNA Data Bank.

For instance, the witness explained that “complex mixture of DNA profiles from unknown sources” are not uploaded in the National DNA Data Bank, to avoid overloading it. Those samples are kept at the local level. [ 52 ] The Local DNA Data Bank compiles all DNA from Quebec crime scenes, from deceased victims and DNA not kept at the national level. One index consists of “abandoned” DNA samples, the “Discarded Sample Index”.

It is composed of DNA collected during police surveillance or during police interrogation of an individual. [ 53 ] All samples are associated with a reference number, connecting them to the police investigation file where nominal information is available for identification.

All data is shared with other local data banks across the country. [ 54 ] Indeed, Lavergne explained that the National DNA Data Bank — as it was operated at the time under the law; amendments came into effect in March of 2018 — limits the comparison possibilities to three categories of DNA samples: obtained from a suspect with a judicial warrant, voluntarily submitted by a suspect and obtained from a convicted offender.

Only the latter, however, is part of the National DNA Data Bank. [ 55 ] Thus, “abandoned” DNA samples from police suspects are kept indefinitely in local DNA database for future comparisons until they yield a match. To be clear, Lavergne testified that if police followed 26 suspects of one sexual assault, picking up 26 used and “abandoned” Kleenex tissues, but only one DNA sample yielded a match, all the other DNA samples would remain in the Discarded Sample Index.

These samples are compared on a regular basis with DNA samples retrieved from crime scenes and thus may reveal a match in any future investigation. [ 56 ] Lavergne further testified that the Local DNA Data Bank had accumulated 500 to 550 “abandoned” DNA profiles. Since 2006, the Discarded Sample Index profiles yielded 68 matches. Of those, annually, only four or five discarded samples are found to match a real unknown sample found on a crime scene. [ 57 ] The following two questions and answers summarize the explanations of the witness: Q. Okay.

So if a judge issues a DNA warrant and the suspect is excluded for the crime under investigation, the lab is required to destroy the sample and remove the records? A. That’s right. Q. But if the same judge refuses to issue the warrant and the police collect the discard sample, then that sample can stay in the lab and be compared for years to come? A. That’s right.

[58] According to the witness, the Laboratory operates on the opinion that the legality of local banks is founded on the decision ofBarlow, 2004 Carswell Ont 11494 (Ont. S.C.J.). The Crown shares that opinion and it also appears that those reasons form the basis forthe trial judge’s decision on that aspect of the case. The Trial Judge’s Decision [59] At trial, the appellant presented a motion to declare that his ss. 7 and 8 Charter rights had been violated, to annul the section487.05 Cr.

C. warrant and to exclude the evidence obtained as a result of the analysis of his DNA. [60] The trial judge dismissed the motion: D’Amico, 2013 QCCQ 20909.

The trial judge did not agree that police collecting thecoffee cup to obtain the appellant’s DNA violated s. 8 of the Charter, nor did she find that the method used violated s. 7 of the Charter.She consequently confirmed the validity of the warrant and refused to exclude the DNA evidence. [61] The trial judge held that police took adequate precautions before setting up the scenario to collect the appellant’s DNA sample.She wrote: “[t]he homicide police officers took precautions before, as they had some advice from a senior crown prosecutor.

They didn'tcircumvent the application of 484.04 ss. as, quite obviously, there were no sufficient grounds for a DNA warrant to be granted underthese sections at the time, although D'Amico was a suspect in a murder case.”: D’Amico, 2013 QCCQ 20909, at para. 42 (my emphasis). [62] After narrating the police operation, which she found to have been carried out in good faith with the advice received from seniorcounsel, the trial judge noted that subterfuges do not equate to improper elicitation, citing Nguyen, (Ont.

C.A.),Hebert, (SCC), [1990] 2 S.C.R. 151 and Broyles, (SCC), [1991] 3 S.C.R. 595. [63] The trial judge wrote: [27] The key issue here is abandonment.

The Court refers to Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579 (referring itself toStillman, (SCC), [1997] 1 S.C.R. 607 and Dyment, (SCC), [1988] 2 S.C.R. 417 Tessing, 2004 SCC 67, [2004] 3 S.C.R. 432). [28] From these cases, it is quite clear that abandonment is fatal to a reasonable expectation of privacy. […] [31] Thus, the focus must be on the conduct of the appellant and whether a reasonable and objective person, considering the totalityof the circumstances would think that the cup was abandonment.

D'Amico, 2013 QCCQ 20909, at. paras. 27-28, 31 (emphasis added). [64] The trial judge focussed her reasoning on the concept of “abandonment” and the conduct of the appellant. She insisted on theabsence of any dirty trick on the part of the police and of any infringement to the physical integrity of the appellant, and thus concludedto the legitimacy of obtaining the coffee cup and the appellant’s DNA. Indeed, she noted that the appellant was not in custody, he wasnot even offered a coffee by the undercover agent, but he decided to have one.

In addition, he was not compelled to discard the cup andhe had no intention of keeping it. [65] According to the trial judge, it was obvious that police did not have reasonable grounds to obtain a warrant as per

section 484.04of the Criminal Code, but the appellant was suspected of murder, a designated offence. [66] The trial judge applied the principles laid out in Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579 to conclude that“abandonment is fatal to a reasonable expectation of privacy”: 2013 QCCQ 20909, at para. 28. She evaluated the totality of thecircumstances to determine whether there had been “abandonment” in this case.

She wrote: [34] Even if D'Amico was tricked into a scenario, considering all the circumstances, the undercover operation was a passive trick, nota dirty trick that would shock the community. [67] The trial judge then turned her attention to the ruling of the Supreme Court in Rodgers, 2006 SCC 15 , [2006] 1 S.C.R.554, at para. 44: “The data bank provisions strike an appropriate balance between the public interest in the effective identification ofpersons convicted of serious offences and the rights of individuals to physical integrity and the right to control the release of informationabout themselves.” [68] Further, the trial judge found that the collection of discarded samples is “not submitted to the DNA warrant scheme of theCriminal Code” and “no judicial authorization applies”: D'Amico, 2013 QCCQ 20909, at. paras. 75 and 79.

She concluded that theLaboratory did not create “secret data banks”: D'Amico, 2013 QCCQ 20909, at. paras. 80-81. In her opinion, the Local DNA Data Bankonly compiles abandoned DNA for which there is no expectation of privacy and consequently, she held that the Discarded SamplesIndex is legitimate and not illegal. [69] That being, she decided that the warrant was validly obtained and that there was no violation of s. 8 of the Charter. Given thosefindings, the trial judge did not consider it necessary to address the test of paragraph 24(2) of the Charter.

Position of the Appellant [70] The appellant contends that his s. 8 Charter rights were violated when the police took a DNA sample from a discarded coffeecup. Further, he argues that the method used violated ss. 7 and 8 of the Charter, that therefore the warrant obtained was invalid andfinally, that his DNA samples should be excluded from the evidence in accordance with s. 24(2) of the Charter. [71] In sum, the appellant argues that he maintained an expectation of privacy in relation to his DNA found on the coffee cup.

Hecontends that the analysis adopted by the trial judge was limited to the question of whether the appellant “abandoned” his DNA, which

was only one of the factors she should have considered. Citing justice Binnie in Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579, atpara. 14 and M.(A.), 2008 SCC 19 , [2008] 1 S.C.R. 569, at para. 33, he presses that the concept of reasonable expectation ofprivacy is a normative standard, not simply descriptive and its

interpretation depends on the interests it protects. [72] In addition, the appellant says that DNA is inevitably left behind by citizens and that it is unreasonable to let the state collect itand store it forever in databases for possible future use.

Referring to S.A.B., 2003 SCC 60 , [2003] 2 S.C.R. 678, at para. 48, theappellant notes in his factum that “DNA undoubtedly reveals the ‘highest level of personal and private information’ about an individual.” [73] Therefore, the appellant argues that such a search must be authorized by law, the law itself must be reasonable, and the searchmust be carried out in a reasonable manner. He argues that police plainly circumvented the legislative regime on collecting and usingDNA.

IN his factum, the appellant says that “Parliament deliberately placed bulwarks to protect the presumed innocent from bothunwarranted invasions of their privacy and the permanent surrendering of deeply revealing biographical information to the state.” [74] In his view, allowing the method used to obtain a DNA sample from him and the following analysis conducted through theLocal DNA Data Bank “would be to provide [the police] with a licence to engage in the systematic and indiscriminate collection of theDNA of citizens.” [75] The appellant proposes general guidelines.

He would not contest that law enforcement be allowed to collect a discarded DNAsample from an individual, whom they objectively and subjectively reasonably suspect of being involved in the commission of adesignated offence, where a comparison of his DNA with samples collected during the investigation of that offence would assist in itsresolution. If no link is established, however, the sample would have to be destroyed without delay.

This police power would be subjectto extensive note-taking obligations and prompt notification to the biological bearer of the DNA. [76] In the end, he submits that the analyses leading to matches with the N. and G. cases were not “targeted analysis,” but the resultof an indiscriminate search throughout the entire database. [77] Invoking s. 7 of the Charter, the appellant says that liberty and security of the person are at play.

In his factum, he argues that“it should be recognized as a principle of fundamental justice that the DNA of citizens benefiting from the presumption of innocencecannot be collected and analyzed by law enforcement without (1) proper supporting grounds (2) proper oversight and without (3) beingjustified by a specifically identified and reasonably based investigation.” Thus, DNA should not be kept unless the result of its analysisconstitutes relevant evidence in the context of the precise investigation for which the sample was collected. [78] Since no grounds existed before the illegal seizure of the appellant DNA, the appellant contends that none existed to sustain theinformation to obtain (ITO) the s. 487.05 Cr.C. warrant once the tainted evidence is not considered. [79] Accordingly, the appellant suggests that the DNA evidence should have been excluded from his trial pursuant to s. 24(2) of theCharter, having regard to the principles enunciated by the Supreme Court in Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353.According to him, the infringement on his rights was very serious, the impact on his Charter-protected interests favours the exclusion,and although the evidence sought to be excluded is reliable and material, the appellant asserts that “this is one of the cases where thelong-term repute of the administration of justice, in conjunction with the first two factors of the Grant test, militate in favour of theexclusion of the impugned DNA evidence.” [80] The effect would be an acquittal on count 2 of the indictment (the G. sexual assault case) and a re-evaluation of the evidenceunder count 3 (the N. sexual assault case).

Position of the respondent [81] The Crown presents a very succinct argument resting exclusively on the concept of “abandonment”: Stillman, (SCC), [1997] 1 S.C.R. 607 and Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579. The Crown sees an analogy between the presentcase and Delaa, 2009 ABCA 179, where the accused spat “his chewing gum into a Dixie cup during an undercover police operation toobtain DNA evidence”: at para. 1; and also refers to Canada (Procureur général) c.

Goodleaf, (CAQ). [82] The Crown argues that the behaviour of the appellant was inconsistent with any privacy interest in the cup, an expectation hecould not have in the circumstances, because “expectation of privacy must be made without reference to the conduct of the police duringthe impugned search”: Edwards, (SCC), [1996] 1 S.C.R. 128, at para. 33.

The Crown further suggests that the DNAwas “gathered, not seized”: Dyment, (SCC), [1988] 2 S.C.R. 417, at para. 31. [83] In any event, the Crown says that the DNA analysis that led to a match in the N. case was obtained in a way that respects thetest enunciated by the appellant, the N. case being one of the investigations in which the appellant was a suspect when his DNA wascollected. [84] The Crown relies exclusively on abandonment and does not otherwise try to justify the state action, if only to mention thedecision in Barlow, 2004 Carswell Ont 11494 (Ont.

S.C.J.). [85] In the Barlow ruling, the Ontario Superior Court decided that the police could recover discarded cigarettes butts left behind inthe polygraph room by an accused who had voluntarily passed the test. Although details are scarce in the decision, the ratio was thatBarlow was not set up to come and pass the test. He voluntarily participated, smoked and left the butts behind. His DNA was collectedand retained, and used against him many years after.

Although the Court discusses the local data banks, it did not have the benefit of theSupreme Court decision in Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554. [86] The Crown contends that the violation, if any, is of minor gravity. It underlines that police acted in good faith, based on caselaw that existed at the time: Usereau, 2010 QCCA 894; Legere, [1994] A.N.-B. 579 (C.A.); Good, [1995] B.C.J. No. 2853 (Sup.Ct.);Titian, [1998] B.C.J. No. 2993 (C.A.); F.(D.M.), (1999) 1999 ABCA 267 , 139 C.C.C. (3d) 144 (C.A. Alb.); Johnson, [2004]M.J. No. 109 (Q.B.); Marini, [2005] O.J. No. 6197 (Sup. Ct.); Delaa, [2006] A.J.

No. 948 (Q.B.); R. c. Macryllos, 2007 QCCS 4542

, [2007] J.Q. no 11429 (C.S.). [87] Further, it stresses that the evidence is reliable and material, that it was created without the participation of the state, gatheredwithout any violation of the appellant’s physical integrity, as well as being essential to a determination on the merits. Finally, it assertsthat the crimes are serious and the public interest in the adjudication of the case on the merits weighs strongly in favour of its admission.

Analysis [88] The appellant’s argument can be fully answered by resorting exclusively to s. 8 of the Charter: Mills, (SCC),[1999] 3 S.C.R. 668; Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554, at para. 23. Accordingly, I do not see the necessity ofdiscussing similar issues raised under s. 7 of the Charter. [89] As I already mentioned, the concept of “abandonment” is central to this appeal and, because it has the potential of evacuatingany useful arguments on a Charter breach, I will first explain why there was no abandonment. [90] If there are exceptions where DNA “abandonment” is possible, none apply in this case.

If the police have a power to collectnon-abandoned DNA from a suspect, with due respect for the contrary opinion, it would require articulating and putting some safeguardsinto place. There were none proposed on this appeal and I find that it would be a matter best left to Parliament.

(1) The Appellant Did Not Abandon His DNA [91] The trial judge concluded, and it is not disputed on appeal, that there were no reasonable grounds to obtain a warrant, be it aDNA warrant or any other warrant. Reasonable grounds were simply lacking; the police only had informed suspicion. Hence,“abandonment” would be the only justification to the state’s power to collect the appellant’s DNA in the present case. “Abandonment” isthe cornerstone of both the trial judge’s and the Crown’s positions. They conclude that the appellant abandoned the coffee cup and anyprivacy interest he had in it.

Therefore, the police were allowed to collect it and use it at will. [92] With respect, this position oversimplifies the important privacy interest vested in a person’s DNA and overlooks the true natureof the “thing” seized. While resorting to the concept of “abandonment,” the trial judge failed to consider all the circumstances indetermining whether the item seized was, in fact, abandoned. [93] In particular, the key issue for the trial judge was that the coffee cup was abandoned: D'Amico, 2013 QCCQ 20909, at para. 31.The respondent does not see any error.

Respectfully, they both fail to identify the true subject matter of this search: Spencer, [2014] 3S.C.R. 212, at paras. 30-31; Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456. What needed to be determined was if theappellant’s DNA information had been abandoned, not the coffee cup. [94] It is undisputed that when no reasonable privacy interest exists, no protection is afforded and, when one truly abandonssomething, no privacy interest may be claimed: Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579, at paras. 22-23.

As Binnie J.wrote, when an item is truly abandoned, it is abandoned as a whole “whatever private information was embedded therein”: at para. 2. [95] As regards the definition of someone’s expectation of privacy, courts must remember that “[a] government that increases itssnooping on the lives of citizens, and thereby makes them suspicious and reduces their expectation of privacy, will not thereby succeedin unilaterally reducing their constitutional entitlement to privacy protection”: Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579, atpara. 14. [96] Notwithstanding a strong statement to the effect that a case where someone “abandons” her DNA while she is not in custodyturns on the question of “abandonment,” see Stillman, (SCC), [1997] 1 S.C.R. 607, I am not convinced that the presentappeal can be so resolved.

True, the cup was abandoned. I have more difficulty finding that the “information” present on the coffee cup,the drinker’s DNA, was abandoned as well. [97] While it is true in most situations that a thing and the privacy interest in it are abandoned simultaneously, abandonment is not anabsolute concept. As an author puts it, “it is important not to leap automatically from the physical act of ceasing to hold something to theconclusion ‘the accused abandoned that’,” because other factors, such as intention, must be taken into account: S. COUGHLAN, OnAbandonment and Flight, (2014) 10 C.R. 322.

I find that a reasonable person does not give any thought to whether or not he or she isabandoning DNA. [98] The case of Fearon, in some way, is illustrative of the contextual nature of the analysis. Cromwell J. explained that a cell phoneleft unlocked “does not indicate any sort of abandonment of significant privacy interests one generally will have in the contents of thephone”: Fearon, 2014 SCC 77 , [2014] 3 S.C.R. 621, at para. 53. Abandonment does not flow automatically from behaviourthat may be interpreted as such when the subject matter generally bears a significant privacy interest.

In Villaroman, Greckol and StrekafJJ.A. aptly wrote and I agree that “[p]rivacy is not an all-or-nothing concept”: Villaroman, 2018 ABCA 220, at para. 3. [99] In my view, the same applies to DNA. Not only because that “thing” may reveal the most personal information about anindividual and is therefore replete with privacy interest, but because one abandons “it” everywhere, all the time without even giving theslightest thought to it. It is “the inevitable consequence of the normal functioning of the human body”: Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 58.

One simply cannot infer, from the being of a person, one’s intention to abandon the privacyinterest in one’s DNA information. [100] In Stillman, the Court had to decide whether the state could collect waste “discarded” by a detainee and analyse it to get hisincriminating DNA profile. Stillman was in police custody and “the police seized a tissue, used by the appellant to blow his nose, fromthe garbage bin in the washroom of the RCMP headquarters”: Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 52.

In thediscussion on whether Stillman abandoned the tissue, the Court distinguished the situation of a detainee and a person who is at liberty,stating in an obiter that when a person who is not in custody discards an item containing bodily fluids, “the police may ordinarily collectand test these items without any concern about consent”: Stillman, [1997] 1 S.C.R. 607, at para. 62.

[101] However, Stillman was detained and the Court was not called upon to fully canvass the situation of the non-detained person, asthe issue was not before it. This distinction was too briefly addressed in Stillman; more nuances are necessary. [102] First, while the majority acknowledged decisions where DNA had been “gathered” rather than “seized”, it did not formallyconfirm those decisions.

They served to differentiate the custodial reality applicable to Stillman’s situation. [103] Second, it is noteworthy that the respondent Crown in Stillman downplayed the role of the police in acquiring the tissue, arguingthat: “[n]ot only is this not a case where the police engineered the taking it is not even a case where the police, by design, deliberatelyafforded themselves the opportunity to make such observations. What the police did was take advantage of an otherwise unforeseenoccurrence”: Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 57. [104] The Supreme Court came to a different conclusion.

It held that, with the detention of Stillman, the police “deliberately affordedthemselves the opportunity” to get the DNA, and the Court found that to be impermissible. [105] Third, the analysis being contextual, there may be other variables to consider when police find a substance or material evidencesusceptible to reveal DNA on a crime scene: see LeBlanc (1981), (NB CA), 64 C.C.C. (2d) 31 (N.B.C.A.), apre-Charter case, where blood from an intoxicated driver was “collected” from the front seat of a car after the accident.

Also, police nowroutinely collect DNA without a warrant on crime scenes when available; indeed, this collected DNA constitutes one of the indexes ofthe National Data Bank. [106] Leaving behind items while fleeing from police may also call for a different approach: see Canada (Procureur général) c.Goodleaf, (QCCA); Nesbeth, 2008 ONCA 579; L.B., 2007 ONCA 596. That is not, however, the factual backgroundin this appeal. [107] Fourth, the majority in Stillman stressed that for “an accused person […] in custody, the production of bodily samples is not anunforeseen occurrence.

It is simply the inevitable consequence of the normal functioning of the human body. The police are only ableto profit from the production of the samples because the accused is continuously under their surveillance.

For this reason it is somewhatmisleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody”: Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 58 (emphasis added). [108] Fifth, the majority was concerned that “through ‘happenstance’ the police would be able to take advantage of the appellant’simprisonment to obtain all the samples they needed, but which they could not legally seize in the absence of a valid search warrant. Inthose circumstances, how can the appellant assert his right not to consent to the provision of bodily samples?

He would be required todestroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminatingevidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”.”: Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 59 (emphasis in original). [109] Sixth, the Supreme Court majority so concluded despite the fact that, being in custody, Stillman had a lower expectation ofprivacy.

The Court noted that “privacy expectation should not be reduced to such an extent as to justify seizures of bodily sampleswithout consent, particularly for those who are detained while they are still presumed to be innocent”: Stillman, (SCC),[1997] 1 S.C.R. 607, at para. 61. [110] Surely, these reasons matter. The application of the Stillman case turns on more than the simple fact that a person is detained ornot.

I do not see the fundamental distinction between custody and constant surveillance of a suspect by police to “gather” his or her DNA.In both cases the state is deliberately affording itself the opportunity to obtain the person’s DNA it would otherwise need an appropriatewarrant. Someone who is at liberty shares the same presumption of innocence as someone who is detained, but enjoys a full expectationof privacy. That person does not “implicitly” consent to a search or to the abandonment of his or her DNA.

DNA samples do not comeabout through “happenstance” because someone is continuously under police surveillance. There are no fundamental differencesbetween constant surveillance of a detainee and constant surveillance of a citizen at liberty. Only the setting is different, the controlexercised by the police is the same. In this context, I respectfully fail to see any difference. [111] It is helpful in my opinion to analogize the facts of the present case to the facts in Duarte.

In that case, a police informant andundercover police officer installed audiovisual recording equipment in the wall of an apartment where they met with Duarte anddiscussed a cocaine transaction. The informer and the undercover officer consented to the interception of their conversations, thereby not“intercepting” the conversation. Thus, the question was to determine if “participant surveillance” infringes s. 8 of the Charter. What theCourt said about the interception of spoken words can have some bearing on the situation of the DNA one leaves behind through thenormal functioning of one’s body.

About electronic surveillance, the Court wrote that its regulation does not protect against “the risk thatsomeone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to recordand transmit our words”: Duarte, (SCC), [1990] 1 S.C.R. 30, at p. 44. [112] The Court thus explained the need for protection against the limitless discretion of the state in spying.

The following passage isequally relevant to collecting DNA and setting up uncontrolled data banks: The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordingsof our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The veryefficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that ourcommunications will remain private.

A society which exposed us, at the whim of the state, to the risk of having a permanent electronicrecording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in whichprivacy no longer had any meaning. As Douglas J., dissenting in United States v.

White, supra, put it, at p. 756: "Electronic surveillanceis the greatest leveler of human privacy ever known." If the state may arbitrarily record and transmit our private communications, it isno longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrudeon privacy in the furtherance of its goals, notably the need to investigate and combat crime. Duarte, (SCC), [1990] 1 S.C.R. 30, at p. 44.

[113] That discussion in Duarte also answers the argument of my colleague Ruel when he says that any person ought to know his orher DNA is abandoned, all the time, everywhere.

Respectfully, one does not renounce a protected privacy right because one ought toknow that the State may acquire the protected information. [114] The statement of the Supreme Court in Stillman, (SCC), [1997] 1 S.C.R. 607, to the effect that “where anaccused who is not in custody discards a Kleenex or cigarette butt, the police may ordinarily collect and test these items without anyconcern about consent”, at para. 62 (emphasis added), may well be nuanced in a near future, especially in view of the word “ordinarily”used by the Supreme Court.

Of course, as stated in Henry, 2005 SCC 76 , [2005] 3 S.C.R. 609, there is no strict demarcationbetween the narrower and binding ratio decidendi of a case, and obiter that are not. [115] Further, the decision of this Court in Usereau, 2010 QCCA 894, applying Stillman, stated that police could pick up a discardeditem by the appellant, namely a glass and a straw in a restaurant garbage bin, while they had him under passive surveillance.

As Iunderstand Usereau, the object was abandoned and consequently, the police could collect it to legitimately gain access to the person’sDNA profile. [116] As much as I would respectfully make further distinctions and express a disagreement on those findings, mainly because of theevolution of the jurisprudence, it is not necessary for the purposes of resolving this appeal. On this appeal, the context is different. Thepolice engineered the taking of the sample and, with respect for the contrary opinion, I disagree that the absence of any “dirty trick” isrelevant to the breach analysis.

I further disagree, in view of the nature of DNA itself, its substantial informational content and theintrinsic high valued privacy expectation it bears, that the concept of “abandonment” routinely applies to one’s DNA. There is noimplied consent that third parties, especially law enforcement agencies, are authorized to collect other people’s DNA. [117] Purposeful engineering of the collection of DNA by the state was not the background either in Stillman or Usereau.

So, even if Iaccept, as a binding point of law already decided, that the state may “collect” DNA from “persons of interest” or “suspects”, I understandthat power to be limited to collection of DNA from people at liberty, but only under passive surveillance by the police. That is the law asit stands in Quebec.

For the reasons stated herein, I respectfully disagree with the position that police operations to trick citizens intogiving up their DNA are reasonable: see Delaa, 2009 ABCA 179. [118] In sum, I find that the appellant cannot be said to have abandoned his DNA. [119] As I will explain, I found the police strategy to actively trick someone into giving up DNA is a breach of s. 8 of the Charter.Further, as indefinitely retaining the DNA samples of “suspects” in an unregulated data bank for further use or comparison was notconsidered in either of the aforementioned cases, I subsequently turn to that issue.

(2) The Application of

Section 8 [120]

Section 8 of the Charter protects against “unreasonable” searches or seizures by the state. To establish that a search or seizurehas occurred a person must show the existence of a “reasonable expectation of privacy” in the relevant subject matter. A breach is madeout when that search or seizure was unreasonable: Jones, 2017 SCC 60 , [2017] 2 S.C.R. 696, at para. 11. [121] An individual’s reasonable expectation of privacy must always be balanced with the interests of the state in law enforcement. [122] As La Forest J. said in Dyment, privacy interest must be protected, not vindicated.

He stressed the importance of clear ruleswhen the privacy interest at stake is important. He said: One further general point must be made, and that is that if the privacy of the individual is to be protected, we cannot afford to wait tovindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures.Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forththe conditions in which it can be violated.

This is especially true of law enforcement, which involves the freedom of the subject. Hereagain, Dickson J. made this clear in Hunter v. Southam Inc.

After repeating that the purpose of s. 8 of the Charter was to protectindividuals against unjustified state intrusion… Dyment, (SCC), [1988] 2 S.C.R. 417, at p. 430. [123] Although the investigation of crime is a valid and shared value in the public, it cannot be at any price; powers conceded to lawenforcement agencies are subject to constitutional limitations: Tessling, 2004 SCC 67 , [2004] 3 S.C.R. 432, at para. 18. [124] Protection is afforded to people, not places; s. 8 protects reasonable expectations of personal, territorial and informationalprivacy in the subject matter of state action: Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, at. p. 159; Tessling,2004 SCC 67 , [2004] 3 S.C.R. 432, at para. 20; Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554, at para. 25; Patrick,2009 SCC 17 , [2009] 1 S.C.R. 579, at para. 42; Cole, 2012 SCC 53 , [2012] 3 S.C.R. 34, at para. 34; Spencer, 2014SCC 43 , [2014] 2 S.C.R. 212, at para. 16, 35; Marakah, 2017 SCC 59 , [2017] 2 S.C.R. 608, at para. 10. [125] One must take a purposive approach to defining the constitutional protection afforded by s. 8 of the Charter: Marakah, 2017SCC 59 , [2017] 2 S.C.R. 608, at para. 19; Spencer, 2014 SCC 43 , [2014] 2 S.C.R. 212, at para. 15; Hunter v.

SouthamInc., (SCC), [1984] 2 S.C.R. 145, at pp. 156-57. [126] Privacy interests are defined in three broad types — personal, territorial and informational privacy —, sometimes overlapping,but which “have proven helpful in identifying the nature of the privacy interest or interests at stake in particular situations”: Spencer,2014 SCC 43 , [2014] 2 S.C.R. 212, at para. 35. [127] Constitutional protection must be interpreted generously: Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, atp. 344; Marakah, 2017 SCC 59 , [2017] 2 S.C.R. 608, at para. 19.

Further, s. 8 of the Charter is not limited to the protection ofa privacy interest. Early on, the Supreme Court did not foreclose the possibility that “the right to be secure against unreasonable search

and seizure might protect interests beyond the right of privacy”: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, atp. 159. [128] Where DNA is concerned, the right not to incriminate oneself is engaged in the protection of s. 8 of the Charter: SAB, 2003 SCC60 , [2003] 2 S.C.R. 678, at paras. 34-35. To focus only on the protection of privacy in s. 8 “cannot exhaust the analysis wherethe principle against self-incrimination is at issue”: SAB, [2003] 2 S.C.R. 678, at para. 57.

Although the principle against self-incrimination requires a contextual analysis, it is broadly defined as imposing “limits on the extent to which an accused person can beused as a source of information about his or her own criminal conduct”: SAB, [2003] 2 S.C.R. 678, at para. 33, citing Jones, (SCC), [1994] 2 S.C.R. 229, at p. 249, and White, (SCC), [1999] 2 S.C.R. 417, at para. 42. [129] Search and seizure are, of course, a daily reality in law enforcement. The purpose of the protection is “to protect individualsfrom unjustified state intrusions upon their privacy.

That purpose requires a means of preventing unjustified searches before they happen,not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only beaccomplished by a system of prior authorization, not one of subsequent validation”: Hunter v. Southam Inc., (SCC),[1984] 2 S.C.R. 145, at p. 160 (emphasis in original). [130] Reasonable state intrusions are allowed. To be reasonable, a search or seizure must satisfy three criteria: (

i) it must be authorizedby law; (ii) the law itself must be reasonable; and (iii) the manner in which the search was carried out must be reasonable. Warrantlesssearches that do not meet those three criteria are presumed unreasonable: Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278;Grant, (SCC), [1993] 3 S.C.R. 223, at p. 250; Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 25;Golden, 2001 SCC 83 , [2001] 3 S.C.R. 679, at para. 84; Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554, at para. 23;Nolet, 2010 SCC 24 , [2010] 1 S.C.R. 851, at para. 21.

The same applies in the absence of urgency or other exigentcircumstances: Dyment, (SCC), [1988] 2 S.C.R. 417; Jones, 2017 SCC 60 , [2017] 2 S.C.R. 696, at para. 11,footnote 1. [131] In the warrantless search context, the onus shifts to the Crown to demonstrate that the search was nonetheless reasonable.

TheCrown must rebut the presumption of unreasonableness by leading evidence that the warrantless search was authorized by a reasonablelaw whether a statutory provision or a common law authority, and that it was carried out in a reasonable manner: Collins, (SCC), [1987] 1 S.C.R. 265, p. 278; Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631, at para. 35. [132] In assessing the protection afforded by s. 8 of the Charter, one cannot ignore the impact of technological development:Marakah, 2017 SCC 59 , [2017] 2 S.C.R. 608, at para. 19.

What seemed very private in the past is now subject to interference,notably with the aid of technology. Examples are numerous: in Wong, (SCC), [1990] 3 S.C.R. 36 (video surveillance ofa hotel room), in Duarte, (SCC), [1990] 1 S.C.R. 30 (electronic surveillance conducted without authorization), in Wise, (SCC), [1992] 1 S.C.R. 527 (tracking devices), in Tessling, 2004 SCC 67 , [2004] 3 S.C.R. 432 (thermalimaging device aimed at a home from an aircraft).

Indeed, modern technology brings its load of challenges where privacy is concerned.While the protected expectation of privacy remains reasonable, technological innovations influence the analysis. More importantly,technology facilitates surveillance by the state, with the effect of expanding the possibilities for social control. [133] Two equally important privacy interests are at stake in dealing with DNA samples and are protected by s. 8 of the Charter. First,there is a concern with a potential interference with the physical integrity of the person.

Second, the kind of information contained in aDNA profile raises questions about an informational privacy interest: SAB, 2003 SCC 60 , [2003] 2 S.C.R. 678. [134] As regard interference with physical integrity of the person, the issue is obvious. Inviolability of a person's body is anundisputed principle: Pohoretsky, (SCC), [1987] 1 S.C.R. 945. It is “perhaps […] the strongest claim to constitutionalshelter”: Tessling at para. 21. Taking a bodily sample for DNA analysis involves using buccal swab, obtaining blood samples or pluckinghair.

Protection exists even if “the degree of offence to the physical integrity of the person is relatively modest”: SAB, 2003 SCC 60, [2003] 2 S.C.R. 678, at para. 44. Physical integrity, however, is not at stake when the DNA sample is collected from adiscarded item, as in the appellant’s case: Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 62. But this conclusion doesnot put an end to the

section 8 analysis. [135] Interference with informational privacy is also an issue when dealing with DNA. DNA reveals important private informationabout an individual. In SAB, 2003 SCC 60 , [2003] 2 S.C.R. 678, at para. 48, the Supreme Court stated: 48 The informational aspect of privacy is also clearly engaged by the taking of bodily samples for the purposes of executing a DNAwarrant. In fact, this is the central concern involved in the collection of DNA information by the state.

Privacy in relation to informationderives from the assumption that all information about a person is in a fundamental way his or her own, to be communicated or retainedby 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 ofpersonal and private information contained in an individual’s DNA.

However, it is important to recall that the bodily samples collectedpursuant to a search warrant issued under ss. 487.04 to 487.09 are collected for a limited purpose, clearly articulated in the CriminalCode. [136] Any coffee drinker would not consent to his DNA being collected by a third party, whether an insurance company wanting toinvestigate his or her health issues, an enthusiastic techie neighbour wanting to test a new pocket-sized “DNA Reader” or, moreover,gathered by police and kept indefinitely for an indefinite use, without any legal control. [137] Again, as the Supreme Court clearly stated, the “notion of privacy derives from the assumption that all information about aperson is in a fundamental way his own, for him to communicate or retain for himself as he sees fit”: Dyment, (SCC),[1988] 2 S.C.R. 417, at p. 429; Spencer, [2014] 3 S.C.R. 212, at para. 40; SAB, 2003 SCC 60 , [2003] 2 S.C.R. 678, at para. 48.The Court also underlined that “the closer the subject matter of the alleged search lies to the biographical core of personal information,the more this factor will favour a reasonable expectation of privacy”: Cole, 2012 SCC 53 , [2012] 3 S.C.R. 34, at para. 46. [138] Furthermore, as the Supreme Court put it in Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 167:“[t]he state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point

where credibly-based probability replaces suspicion”. [139] Indeed, reasonable expectation of privacy varies according to the circumstances. Concepts of reasonable expectation of privacyas well as abandonment must be assessed in context: Marakah, 2017 SCC 59 , [2017] 2 S.C.R. 608, at para. 11; Edwards, (SCC), [1996] 1 S.C.R. 128; Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579, at para. 26.

The location of and the kindof information are both relevant: McKinlay Transport Ltd., [1990] 1 SRC 627, at p. 645. [140] In SAB, the Supreme Court grappled with DNA warrants granted pursuant to ss. 487.04 to 487.09 of the Criminal Code, thedetailed regime elaborated to allow legal usage of DNA while protecting both personal privacy and informational privacy.

Arbour J., forthe Court, concluded that “in general terms, the DNA warrant provisions of the Criminal Code strike an appropriate balance between thepublic interest in effective criminal law enforcement for serious offences, and the rights of individuals to control the release of personalinformation about themselves, as well as their right to dignity and physical integrity.”: SAB, 2003 SCC 60 , [2003] 2 S.C.R. 678,at para. 52. [141] The provisions are meant to regulate the search and seizure of DNA materials for investigative purposes: SAB, 2003 SCC 60, [2003] 2 S.C.R. 678, at para. 3; Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554, at para. 8.

The regime also regulates thecollection of bodily substances voluntarily provided by a person, and it describes the many conditions to meet to obtain a warrant tocollect them. The state needs to enter a sworn statement, presented ex-parte to a judge, enunciating the reasonable grounds to believe,among other facts, that the person targeted by the investigation was a party to a designated offence.

Notwithstanding these reasonablegrounds, the judge must also be satisfied that it is in the best interests of the administration of justice to issue the warrant and mayimpose such conditions to ensure that the seizure is reasonable in the circumstances: ss. 487.05 and 487.06 Criminal Code; SAB, [2003]2 S.C.R. 678, at paras. 4-6, 39, 46. [142] Further, the Criminal Code authorizes comparisons between the sample acquired through the warrant and samples collected onthe specific crime scene where the designated offence was committed.

It prohibits any other use, as well as it provides for the destructionof the material if, among other reasons, the results of the analysis exclude the person as the perpetrator of the designated offence, unlessa judicial authorization to the contrary or a confirmed conviction (or discharge) for the designated offence under investigation is entered:ss. 487.08 and 487.09 Criminal Code; SAB, 2003 SCC 60 , [2003] 2 S.C.R. 678, at paras. 13-14. [143] Arbour J. also noted in SAB that, according to the legislative regime in place, “the DNA analysis is conducted solely for forensicpurposes and does not reveal any medical, physical or mental characteristics; its only use is the provision of identifying information thatcan be compared to an existing sample”: s. 487.04 Criminal Code; SAB, 2003 SCC 60 , [2003] 2 S.C.R. 678,at para. 49. [144] Thus the informational aspect of privacy is protected by s. 8 of the Charter, and “the DNA warrant scheme [that] explicitlyprohibits the misuse of information is an important factor that ensures compliance” with that section: SAB, 2003 SCC 60 ,[2003] 2 S.C.R. 678, at para. 50. [145] In sum, methods of collecting DNA involving interference with the physical integrity of a person require judicial authorizationand deserve special attention.

Methods that do not, however, are unregulated. If a difference exists between “forced” DNA sampling andretrieval of “abandoned” or otherwise “discarded” DNA, the logic of this distinction ends when the samples are in the hands of the state.At that moment, it is the informational aspect of privacy that is at stake and the distinction as to “how” the samples were obtained isirrelevant, thus the need for prior authorization in all cases. La Forest J., speaking for the majority in Colarusso said that “the protectionagainst unreasonable seizure is not addressed to the mere fact of taking.

Indeed, in many cases, this is the lesser evil”: Colarusso, (SCC), [1994] 1 S.C.R. 20, at p. 63. [146] In Rodgers, the Supreme Court examined the constitutionality of s. 487.055 of the Criminal Code, permitting prior judicialauthorization for DNA warrants “to authorize the collection of DNA samples from three classes of previously convicted and sentencedoffenders”: Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554, at para. 1. [147] In her analysis, Charron J. for the majority, noted that “[t]he potential invasive impact on the right to privacy has carefully beencircumscribed by legislative safeguards that restrict the use of the DNA data bank as identification tool only”: Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 5.

Fish J., dissenting on the justification for ex parte proceeding, stated that: “[t]he DNA databank constitutes a substantial and novel invasion of privacy.” Rodgers, [2006] 1 S.C.R. 554, at para. 95. [148] In view of that invasion, the law provides safeguards. Charron J. considered them in upholding the constitutionality of thelegislative scheme.

Those safeguards, aimed at protecting the informational privacy of individuals, are: (1) the need for judicialauthorization, (2) class of persons confined in the law, (3) use of bodily samples collected controlled by law, (4) criminal offence tomisuse bodily samples, (5) comparison of DNA profiles strictly limited (offender with crime scene profiles) and access to the bankrestricted (criminal offence to breach provisions), (6) communication of information restricted, (7) bodily samples retained forsafekeeping for further forensic limited, (8) further samples taken only upon further judicial authorization,

(9) Data Bank AdvisoryCommittee established by regulation,

(10) Commissioner of the RCMP required to report annually,

(11) Act subject to a review byParliament after five years,

(12) Act permits sharing of DNA with foreign entity only for legitimate law enforcement purposes pursuantto specific agreement or arrangement: Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554, at para. 11. [149] Charron J. thus concluded that “[t]he data bank provisions strike an appropriate balance between the public interest in theeffective identification of persons convicted of serious offences and the rights of individuals to physical integrity and the right to controlthe release of information about themselves”: Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554, at para. 44. [150] One must not lose sight of the fact that those processes and safeguards were enacted for convicted offenders.

It seems odd thatno such safeguards would exist for the protection of non-convicted citizens at liberty. At best, they are currently left to the unfettereddiscretion and good faith of the state. [151] In view of the growing possibilities offered by DNA analysis, the words of the Supreme Court apply equally, if not more, to thepolice: “[t]he protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown,

something that is impossible to monitor or control.”: Bain, (SCC), [1992] 1 S.C.R. 91, at pp. 103-104; Nur, 2015 SCC15 , [2015] 1 S.C.R. 773, at para. 95. [152] There was no scientific evidence in this case on DNA and the information it may yield on an individual.

It is clear, however,that the Supreme Court concluded that the possibility to extract only the identifying information is sufficient to require safeguards thatare actually non-existent if the police do not conform to the statutory regime. [153] Given the obiter in Stillman and this Court’s decision in Usereau, indicating that “abandonment” of one’s DNA is possible incertain circumstances, I would conclude that police cannot target a person and set that person up in a scenario to obtain his or her DNA.Doing so is the functional equivalent of collecting someone’s DNA while they are in custody and this is not possible without a warrant.The practice of tricking members of the public into surrendering a DNA sample should be subject to prior authorization by a generalwarrant (487.01 Cr.

C.). Once legally seized for its DNA potential and analyzed, the use of the DNA thereby obtained should beregulated so that sufficient safeguards are put into place to strike a balance between the competing interests of people’s privacy and lawenforcement.

(3) The Retention of “Discarded” DNA Information [154] By retaining the DNA forever, the state aggravates the infringement. The Crown based its entire response on the Barlowdecision. [155] In Beare; Higgins (1987), (SK CA), 34 C.C.C. (3d) 193 (Sask. C.A.), the Court of Appeal found that the lackof a requirement to destroy fingerprints taken by police under the authority of the law, when the initial charge was withdrawn ordismissed, was an infringement of

section 7 of the Charter. The Supreme Court reversed this decision, but noted that the issue of theretention of the fingerprints of an accused who was not convicted was not before the court: Beare; Higgins, (SCC),[1988] 2 S.C.R. 387, at pp. 413-414. For La Forest J., speaking for the Court, if the law provides for some retention, it cannot authorizeunconstitutional retention: at p. 414. [156] La Forest J. thus rejected that fingerprinting was an infringement of a right of privacy, partly on the basis that the fingerprintswere acquired after a lawful arrest.

He said: “… a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or a person against whom acase for issuing a summons or warrant, or confirming an appearance notice has been made out, must expect a significant loss of personalprivacy….” Beare; Higgins, (SCC), [1988] 2 S.C.R. 387, at p. 413. [157] This last remark, in my opinion, precludes any parallel with DNA samples obtained from citizens on the basis of suspicion.

Inthe present appeal, it must be recalled that the trial judge found that there was no reasonable ground to believe that the appellant hadcommitted a crime under investigation. [158] On this same issue, in Dore, Feldman J.A., speaking for the Ontario Court of Appeal, discussed the retention of fingerprints. Itmust be kept in mind that the discussion proceeds on the basis that the fingerprints of Dore were legally obtained, according to theIdentification of Criminals Act, R.S.C. (1985), ch.

I-1. [159] First, restating the basic test, Feldman J.A. said: “the court must undertake a traditional s. 8 analysis, the onus being on theCrown to show on a balance of probabilities that (

a) the ongoing retention is authorized by law; (

b) the law is reasonable; and (

c) theretention in this case was reasonable: Collins (1987), (SCC), 33 C.C.C. (3d) 1 at 14 (S.C.C.).”: Dore (2002), (ON CA), 166 C.C.C. (3d) 225, at para. 38. [160] Feldman J.A. concluded that there must be some reasonable statutory authorization to retain fingerprints and found that the Actprovided for some authority to retain fingerprints properly and legally taken, but, recalling the words of La Forest J. in Beare andHiggins, she added that “the

section does not authorize ‘unconstitutional retention.’”: Dore (2002), (ON CA), 166C.C.C. (3d) 225, at para. 41. [161] In this case, the Crown does not point to any statutory authorization to retain DNA acquired from suspected citizens withoutlegal authority. [162] Second, Dore acknowledges the privacy interest at stake in the retention of something associated with one’s body. Thosecomments equally apply to DNA samples.

Feldman J.A. said: … anything associated with one’s body, especially where it is not something that is otherwise normally accessible, is of a personal andconfidential nature and is the type of information that people expect to be able to control and keep private in the ordinary course.

Thefact that one’s fingerprints may tell nothing about the person other than his or her identity hardly makes the information impersonal.” Dore (2002), (ON CA), 166 CCC (3d) 225, at para. 53. [163] Feldman J.A. discarded the argument that there is no privacy interest in fingerprints or DNA, because they are not inherentlyincriminating and said “this concept adds nothing to the debate on whether a person has a privacy interest in his or her fingerprintinformation”: Dore (2002), (ON CA), 166 CCC (3d) 225, at para. 55.

Making the analogy with DNA, Feldman J.A.further said: Of course a very critical contextual factor is the nature of the privacy interest in fingerprints. As I have already discussed, the nature ofthe information contained in a person’s fingerprint is that it can identify the person. However, it cannot reveal core value, personal orprivate information as can, for example, DNA. The privacy interest is arguably a minimal one, but is derived both from the nature of the

information emanating from one’s body, together with the fact that in the retention context, it is stored by the police and is linked withthe stigma of identification as a criminal. Dore (2002), (ON CA), 166 CCC (3d) 225, at para. 70. [164] I agree with those comments and note that DNA certainly carries a higher privacy interest and deserves higher legal protectionthan fingerprints.

(4) Application to This Case [165] The facts are uncontested. The police engaged in the surveillance of the appellant on the basis of some resemblance between arecent murder and sexual assaults, which had occurred years earlier. Police knew, on April 9, 2008, from preliminary discussions withthe laboratory personnel that there was no connection established between the DNA found in the Blanchette murder case and the DNAfound in the N. sexual assault case. This was subsequently confirmed.

Nevertheless, they proceeded with the surveillance of theappellant and tricked him, in a scenario functionally equivalent to detention, into surrendering a sample of his DNA. [166] It was put into evidence that police collect and retain indefinitely, through the laboratory, those DNA samples and other“abandoned” samples into an organized local data bank for further comparison, even if a suspect at the time the samples are collected isnot connected to the offense he or she was suspected to have committed.

Once the implication of the person is demonstrated after a trial,however, the corresponding samples are removed from the Local Data Bank because they will be preserved, from that point on, in theNational Data Bank. [167] I have no hesitation in concluding that the appellant had a subjective privacy interest in his DNA, that he did not consent to thesearch or seizure, nor did he voluntarily “abandon” his DNA, that the police action was a warrantless search or seizure, and that theCrown did not rebut the presumption of unreasonableness.

The active police operation to obtain the DNA of the appellant infringed hisconstitutionally protected right. The retention of DNA constitutes a continuing infringement. [168] That said, contrary to the appellant’s contention, his DNA samples were never retained for the purposes of forensic analysis inrelation to the offences for which he was charged. This case is not a case as in Barlow or Dore where the bodily evidence of the personwas retained and stored and, only years later, yielded a connection to a crime scene.

All forensic analyses in question here were madecontemporaneously. [169] The initial police operation was designed to enable a comparison between the DNA of the appellant and the DNA found both inthe Blanchette murder case and the N. sexual assault case. The same sample also, contemporaneously, revealed a match with the G. case.These results provided grounds to obtain a warrant. [170] As I have said, the appellant’s DNA was first obtained through a warrantless search and seizure.

The Crown has not otherwisetried to justify the warrantless search and seizure and the presumption that it was unreasonable has not been rebutted. Therefore, aviolation of the appellant’s

section 8 protected rights occurred. [171] The trial judge’s finding that no reasonable grounds existed before acquiring the DNA samples for the purpose of obtaining awarrant was not challenged on appeal and commands deference. Without the tainted evidence in the ITO provided by t

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