R v Cochrane, 2023 ABKB 667

Court of King’s Bench of Alberta Citation: R v Cochrane, 2023 ABKB 667 Date: 20231124 Docket: 201267853Q1 Registry: Calgary Between: His Majesty the King Crown - and - Leonard Brian Cochrane Accused _______________________________________________________ Oral Reasons for Decision of the Honourable Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] This Court rendered a decision on March 17, 2023, reported as R v Cochrane , 2023 ABKB 160 , which I will refer to as the “Prior Decision”.

The Prior Decision dealt with the issue of whether the accused Leonard Brian Cochrane had standing to seek remedies pursuant to the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ], whether the way in which the Calgary Police Service collected his cast-off DNA was an abuse of process or breached his Charter s 8 rights, and whether this Court would embark on a voir dire at all. It found that Mr. Cochrane did not have a reasonable expectation of privacy in other persons’ DNA and that this Court was bound by appellate jurisprudence concerning his cast- off DNA. As a result, it found that Mr. Cochrane was not entitled to a voir dire to consider these issues, so it dismissed his applications. [ 2 ] Mr.

Cochrane’s trial commenced on April 24, 2023. On April 28, 2023, the Supreme Court of Canada rendered its decision in R v Haevischer , 2023 SCC 11 . The Supreme Court of Canada altered the test and procedure for

summary dismissal of applications in criminal proceedings. As a result, Haevischer changed the landscape on which this Court grounded the Prior Decision. As a result, this Court adjourned Mr. Cochrane’s trial to allow counsel to argue how this changed landscape should affect this Court’s conclusions on the questions it considered in the Prior Decision. [ 3 ] This Court heard argument on Friday, May 5, 2023. Because it felt that it needed to move this matter forward timely, it advised counsel that it would deliver its oral reasons on Monday, May 8, 2023. These are its oral reasons.

II. Preliminary Issue [4] A preliminary issue arose concerning whether this Court even has the jurisdiction to hear this matter or whether it is functusofficio because of the Prior Decision. Although not fully argued, Mr. Cochrane’s counsel suggested that this is something that this Courtshould consider, since the Prior Decision is a substantive decision which has finality. This Court heard the voir dire that resulted in thePrior Decision while sitting in case management before the trial of this matter commenced.

In Haevischer at para 54, Justice Martin, forthe court, said, this Court’s “extensive case management powers, ... allow them to control the trial and the process and procedure of theunderlying application.” She went on at para 102, to address the issue of whether this Court can revisit previously rendered rulings whenshe said, “Case management powers also include the ability to revisit prior evidentiary determinations or to allow new applications mid-trial if doing so would be in the interests of justice,” citing R v JJ, 2022 SCC 28 at para 86.

The Prior Decision addresses a “priorevidentiary determination.” Nonetheless, it is important to look at the jurisprudence on which Justice Martin and JJ relied. In the earliercase of R v Adams, (SCC), [1995] 4 SCR 707 at paras 29-30, 103 CCC (3d) 262, 178 AR 161, Justice Sopinka, for thecourt said: ... The court continues to be seized of the case and is not functus until the formal judgment has been drawn up and entered. ... Withrespect to orders made during trial relating to the conduct of the trial, the approach is less formalistic and more flexible.

These ordersgenerally do not result in a formal order being drawn up and the circumstances under which they may be varied or set aside [are] alsoless rigid ... As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the timethe order was made have materially changed.

In order to be material, the change must relate to a matter that justified the making of theorder in the first place. [5] In R v La, (SCC), [1997] 2 SCR 680 at para 28, 200 AR 81, 51 Alta LR (3d) 181, Justice Sopinka for themajority repeated that if a trial judge rules on a motion and the motion is unsuccessful, the moving party may renew that motion if there is a material change in circumstances.

In R v RV, 2019 SCC 41 at para 74, 378 CCC (3d) 193, 55 CR (7th) 297, Justice Karakatsanis, forthe majority, said that either party may ask the trial judge to revisit the previous evidentiary ruling on the occurrence of a material changein circumstances. [6] No formal judgment was drawn up or entered in respect of the Prior Decision. Rather, it was a preliminary order that dealtwith evidentiary issues and assisted the parties in how they would conduct the trial.

The Prior Decision determined what evidence wouldbe admissible and why. [7] A decision rendered by the Supreme Court of Canada that changes the landscape on which a previous decision was built is amaterial change in the circumstances, and it relates to “a matter that justified the making of the order in the first place.” Furthermore, notexamining the potential impact of a binding authority that substantially changes Canadian law directly relevant to the Prior Decision isinefficient and runs contrary to the Supreme Court of Canada’s directions that criminal trial judges exercise their authority to managecourt procedure with an overall eye on efficient but principled use of court and judicial resources. [8] Given the foregoing, this Court finds that it has jurisdiction to revisit the Prior Decision in the light of Haevischer.

III. The Haevischer Test [9] The facts involved in Haevischer are distinguishable from those in the case at bar. It appears, however, that the principlesthat Justice Martin articulates are to be of a much broader scope and apply to any case in which a person seeks a

summary dismissalapplication in a criminal proceeding. She holds at para 66 of Haevischer that “the appropriate standard for

summary dismissal iswhether the underlying application is manifestly frivolous.” She then says at para 67 that the “frivolous part” is intended to weed outthose applications “that will necessarily fail.” She goes on to say at para 69 that “manifest” captures the idea that the frivolous nature ofthe application should be obvious or clearly revealed. [10] When articulating this test, Justice Martin at para 74 of Haevischer dismisses other standards that she holds are not “wellsuited to the task.” In particular, she finds at para 77 that the “no reasonable prospect of success” threshold that the court used in R vCody, 2017 SCC 31, [2017] 1 SCR 659, is “ill suited to

summary dismissal in the criminal context as it may invite an assessment of themerits of the underlying application.” This was the very concern before her in respect of Haevischer. [11] This Court mentions the Cody decision as it used the Cody terminology in the Prior Decision. It will, however, address theconcern that Justice Martin raises when it discusses the substance of the Prior Decision. [12] Justice Martin at para 56 of Haevischer recognizes that the

summary dismissal of criminal applications might curtail anaccused person’s right to full answer and defence and the right to a fair trial by stopping the accused person from fully arguing andeliciting evidence on their application. She goes on to say, however: ... [A]ccused persons are not entitled to a voir dire and, if a voir dire is granted, are not entitled to whatever style of voir dire they wouldprefer (Vukelich, at para. 26). The trial judge decides if and how the voir dire proceeds and whether it should include an evidentiaryhearing. Ibid. IV. The Prior Decision

[13] The Prior Decision arose out of a Charter notice that Mr. Cochrane filed on January 24, 2022. In the main, the Charter noticealleges that the police violated Mr. Cochrane’s Charter ss 7 and 8 rights by using investigative genetic genealogy, using public DNAdatabanks for investigative purposes and seizing Mr. Cochrane’s cast-off DNA in the investigation. Mr.

Cochrane particularized thebreaches in paragraph 4 of his Charter notice, that this Court will not repeat here. [14] The foundation for the alleged breaches rests on the “unique and novel investigative tactic” that the Calgary Police Serviceundertook by using public DNA databanks in their investigation. It was in this context that this Court questioned Mr. Cochrane’sstanding to raise these issues. After quoting Cody, this Court at para 33 of the Prior Decision framed the issue before it as: This takes this Court back to the other threshold question. Does Mr.

Cochrane have a reasonable chance of success in his Charterapplications? Particularly, does Mr. Cochrane have standing to have his matter heard in a voir dire? If the answer to the question ofstanding is in the negative, that ends the inquiry. He may not have a voir dire as it relates to his Charter s 8 argument. If he has standing,this Court must then determine whether his application has a reasonable chance of success. [15] Thus, it framed the reasonable expectation of privacy or standing issue as a preliminary issue which, if answered in thenegative, would end the inquiry.

If he had a reasonable expectation of privacy in other persons’ DNA or DNA that he shared with others,this Court would move on to consider whether, in the words of the Cody court, he had a “reasonable chance of success” in his Charterarguments. [16] As to the preliminary issue, this Court found that Mr. Cochrane did not have a reasonable expectation of privacy in the DNAthat he shared with others. Said differently, Mr. Cochrane did not have standing to claim a privacy interest in other people’s DNA.

Basedon that finding, This Court found at para 180 of the Prior Decision that he had “no reasonable prospect of success in having this Courtfind a Charter s 8 breach.” [17] Mr. Cochrane then argued that he was in the best position to argue and protect the rights of individuals who deposited theirDNA with the public genetic genealogy database as they did not know that their DNA was being used in a police investigation.

In otherwords, they would not know that their Charter rights were being breached, so there is a “gap in the law.” This argument falls within the“residual category of conduct” caught by Charter s. 7: R v O'Connor, (SCC), [1995] 4 SCR 411 at para 73, 103 CCC(3d) 1, 44 CR (4th) 1. He also argued that use of the investigative genetic genealogy technique is an abuse of process. With respect to thelatter, he conceded that if this Court found that technique to be objectively reasonable, which it did, it could not find an abuse of processin respect of that technique.

As to the former, this Court found, among other things, that those who deposited their DNA with a publicgenetic genealogy database knew that law enforcement might access their DNA for investigative purposes. Like the Charter s 8argument, this Court found at paras 207-210 of the Prior Decision that he has no standing to make this argument in respect of someoneelse’s reasonable expectation of privacy.

Again, using the Cody language, this Court found at para 210 of the Prior Decision that Mr.Cochrane’s Charter s 7 arguments in respect of investigative genetic genealogy had “no reasonable prospect of success.” [18] This Court followed previous appellate jurisprudence concerning the cast-off DNA. Mr.

Cochrane presented an interestingargument on a “new way of thinking,” in respect of cast-off DNA that arose from decisions emanating from the Ontario Superior Courtof Justice in Bhogal and a dissenting opinion arising from the Quebec Court of Appeal in D’Amico that this Court chose not to follow.Rather, it chose to follow existing appellate court decisions, including those of the Supreme Court of Canada. [19] It also used the Cody language in the Prior Decision at para 202 to find that Mr. Cochrane had “no reasonable prospect ofsuccess in a Charter s. 8 argument as it relates to his cast-off DNA.” [20] Mr.

Cochrane went on to argue that the police collection of the cast-off DNA was an abuse of process that contravened hisCharter s 7 rights. This Court found that the police conduct would not shock the community, so there was no abuse of process. ThisCourt did not have to weigh different perceptions of the facts as they related to the collection of the cast-off DNA. It accepted Mr.Cochrane’s version, as set forth in his Charter notice, and expanded in the “Defence Brief on ‘Cast-off’ and s. 7” that he provided to thisCourt in advance of this Court hearing oral argument on these issues. V.

Discussion [21] This Court is required to use the “manifestly frivolous” test that Justice Martin articulates in Haevischer. Of course, there areother meanings to the word “frivolous.” For example, the Cambridge Dictionary defines “frivolous” in the legal sense as: A frivolous claim is not based on fact or good reasons, or relates to something that is not at all important, so that it is obviously not likelyto succeed or not worth taking to court.

Cambridge Dictionary, online: https://dictionary.cambridge.org/dictionary/english/frivolous [22] Justice Martin was not suggesting that all claims that a court might dismiss are “not at all important.” Rather, her descriptionis more nuanced than that. In para 72 of Haevischer, she is describing applications that “would never succeed.” If an application mightsucceed, she says at para 73, the application should be decided on its merits.

She specifically refers to “novel claims”: ibid. [23] The Cambridge Dictionary definition specifically alludes to a claim that “is obviously not likely to succeed.” This definitionthus incorporates Justice Martin’s “manifestly” aspect into the definition itself. [24] A theme that appears to run through Haevischer are scenarios where evidence is in dispute or inadequate or both. SeeHaevischer at paras 83 and 96.

Given this, it is not surprising that Justice Martin says at para 96, “It should not take extensive anddetailed contested evidence to ascertain whether the application will necessarily fail.” Uncontested evidence will assist the court indetermining whether an application is manifestly frivolous. In the case at bar, this Court found that there were no facts in dispute, and, infact, this Court derived virtually all the facts from Mr. Cochrane’s submissions. See Prior Decision at paras 36, 180, 210 and 232. As

well, there was no evidentiary disagreement in how the Calgary Police Service collected and handled exhibits or the “science and technology” aspects of the case. [ 25 ] Haevischer goes on to say at para 85 : ...

Because the truth of the facts alleged is assumed, an application will only be manifestly frivolous where there is a fundamental flaw in the application’s legal pathway: the remedy cannot be reached. ... [T]he application could put forward a legal argument that has already been rejected: applications that depend on legal propositions that are clearly at odds with settled and unchallenged law are manifestly frivolous ... [ 26 ] This quotation responds to two of the matters with which this Court had dealt in the Prior Decision. First, Mr. Cochrane’s reasonable expectation of privacy is a preliminary issue.

If a person has no reasonable expectation of privacy in another person’s DNA, there is a fundamental flaw in the application’s legal pathway. There can be no remedy. As well, the cast-off arguments that Mr. Cochrane made are clearly at odds with settled and unchallenged law. [ 27 ] Justice Martin then says at para 86: An application may also be manifestly frivolous where the remedy sought could never issue on the facts of the particular application. The nature of the application will be relevant to this analysis.

On certain applications, the trial judge may be able to assume the facts put forward by the applicant and, assuming those facts, determine whether the remedy sought could issue. [ 28 ] Again, this Court assumed the facts put forward by Mr. Cochrane and found in the case of the DNA evidence, that he had no right to assert a privacy claim to a third party’s DNA. Thus, there is no remedy that could issue. [ 29 ] As mentioned earlier, this landscape has changed. Mr. Cochrane’s counsel argues that investigative genetic genealogy is novel.

This was not fully explored during previous argument, but Justice Martin opens the door to exploring this further. She says at paras 58 and 73 of Haevischer : Concerns about trial fairness can arise in numerous ways. Setting too lax a standard for

summary dismissal risks the dismissal, based on a limited or incomplete record , of applications that might have proved successful after a full hearing on the merits. This risk becomes particularly salient where a party puts forward novel arguments which may carry significant precedential value and allow the law to develop. ... [I]n criminal cases: courts have acknowledged the risk of stifling novel claims, given that “the contours of constitutional rights are settled through the litigation of emerging, unresolved and contentious issues” ...

Certain interveners pointed out that a novel application might require full evidentiary exploration for the issues to properly emerge. I agree . ... The “manifestly frivolous” threshold also protects fair trial rights by ensuring that those applications which might succeed, including novel claims, are decided on their merits . Protecting fair trial rights is always important, but takes on added significance when the application in question carries great consequences.

Generally speaking, the greater the consequences associated with a given application, the greater the possible impact on an accused’s rights if the application is summarily dismissed. ... [A]pplications for a stay of proceedings based on abuse of process are of enormous import for an accused and the public. They often involve serious allegations of egregious state misconduct and always call for serious consequences, ... Similarly, an underlying application might allege breaches of an accused’s Charter rights, such that its

summary dismissal prevents the accused from litigating those rights in the course of trial. [ 30 ] Mr. Cochrane argues that the record is incomplete, as this Court has not heard evidence from the police officer, Det. Carriere, and the genetic genealogists about their investigative strategy and methodology. He further argues that because police conduct is at the heart of his concerns, he should be able to examine these individuals. This Court gave Mr. Cochrane the benefit of the doubt on all factual issues, and he was allowed to make full argument.

He argues, however, that those witnesses might be able to provide a more thorough record that will assist this Court in determining whether Mr. Cochrane has a reasonable expectation of privacy in the DNA of others or whether his privacy rights are affected through their investigative tactics, such that he has standing to move onto a full voir dire in respect of his Charter application.

The Crown argues that investigative genetic genealogy is “relatively straightforward” and that there is no dispute about “how genetic genealogy works.” This Court must determine whether that is the case. [ 31 ] Because he alleges police misconduct, Justice Martin’s comments are apposite when she says at para 118: Moreover, the judge conducted the balancing exercise when she could not be sure that she had access to all the necessary evidence. In cases like this, which involve state misconduct, there is a distinct possibility that the extent of the misconduct will be unknown at the

summary dismissal stage, and it may well be more serious than alleged . ... In addition, the misconduct may only come to light through cross-examination. As acknowledged by the Court of Appeal, certain defence allegations — such as the ones made here — “are such that they can likely only be established through cross-examination” ... This Court has further recognized that cross-examination is a critically important tool and an essential component of the accused’s right to full answer and defence ... [ 32 ] Given that Mr.

Cochrane argues that this Court erred in its finding concerning the “subject-matter of the search,” it is important that this Court allow him to cross-examine Det. Carriere and the genetic genealogist on this issue. He argues, “Eliciting evidence from those responsible for this investigation would have assisted this court in properly identifying key factors that would inform the answer to this fundamental question”: Mr.

Cochrane’s Brief at para 29. [ 33 ] He went on to argue that investigative genetic genealogy might reveal core biographical data that falls within the sphere of information that society wants to protect from state intrusion. There are two problems with this argument. First, the police were seeking nothing with respect to Mr. Cochrane. The police were seeking the relationship between CN-1, crime scene evidence, and data that persons other than Mr. Cochrane had posted on a public DNA database.

Second, the persons who posted their DNA on the public DNA database did so for the very purpose of comparison and knew that others, including law enforcement, would be searching that information with that purpose in mind. Attempting to analogize this with computer searches and cellular telephone information searches

is not accurate. For example, in Spencer , it was information that Mr. Spencer had created that was exposed to law enforcement. In the case at bar, the police are seeking no information about Mr. Cochrane or his core biographical information. They are simply looking at crime scene evidence, and how that compares to something in the public realm. VI. Conclusion [ 34 ] In conclusion, this Court is required to apply the principles that the Supreme Court of Canada articulates in Haevischer . With respect to investigative genetic genealogy, Mr.

Cochrane argues that he has a privacy interest that such investigation invades, and he requires additional information to allow him full answer and defence. This, he argues, can only be obtained through cross-examination.

Haevischer says that novelty and the need for further evidence for full answer and defence means a criminal application cannot be manifestly frivolous. [ 35 ] This Court finds that such a voir dire is not “manifestly frivolous.” While standing requires a reasonable expectation of privacy, this Court concludes that a circumscribed exploration of the background to investigative genetic genealogy is appropriate. Circumscribing this exploration will prevent Mr. Cochrane from embarking on a “fishing expedition.” In fact, Mr.

Cochrane, in his oral submissions, acknowledged that there might be some “fishing” if this Court were to allow him to cross-examine the investigators when he said: ... I’m not going to stand here and be able to say exactly what we could glean from asking those people questions because that’s frankly impossible for the defence to do, and it’s impossible for the defence to do because of the novel nature of the investigative tactic, the fact that this is something that people haven’t seen before. [ 36 ] This is the very reason why his cross-examination must be circumscribed.

This Court will not allow a fishing expedition. [ 37 ] This will be a two-stage process. The first will be to permit Mr. Cochrane to cross-examine Det. Carriere, Beverly Stevenson, and Devon Griffin, the genetic genealogists, concerning the “novel investigative strategy” of investigative genetic genealogy as it relates to his reasonable expectation of privacy. His cross-examination will focus on methodology, how they made the decisions they made, and how their focus narrowed. We must remember that they were comparing CN-1 against the public genealogy database. No mention was made of Mr.

Cochrane, as he was not the subject of their search. Thus, Mr. Cochrane’s name cannot be mentioned during cross- examination. It is the methodology that was used that resulted in the investigative genetic genealogy that is of interest to this Court. After this Court receives that evidence, it will decide on a balance of probabilities whether Mr. Cochrane has has a reasonable expectation of privacy, such that he has standing. [ 38 ] If this Court finds, on a balance of probabilities, that Mr.

Cochrane does not have standing, that ends this matter, as any further exploration will be, of its nature, manifestly frivolous. If this Court finds that Mr. Cochrane has reasonable expectation of privacy, such that he has standing to make his Charter arguments, it will then embark on a second voir dire to deal with whether his Charter applications are manifestly frivolous. [ 39 ] Although Mr. Cochrane lumps the issue concerning the cast-off DNA together with the investigative genetic genealogy issue, the cast-off DNA issue requires separate considerations. This Court asked Mr.

Cochrane to provide it with any information that would suggest that the manner in which the police obtained Mr. Cochrane’s DNA would shock the community’s conscience or offend its sense of fair play and decency. This Court is not satisfied that Mr. Cochrane has provided it with any factual basis for it to find that his cast-off DNA could be a basis to change the law in Canada, since it accepted all facts that Mr. Cochrane provided to it. Mr. Cochrane asked this Court to re-consider the jurisprudence on the law of abandonment based on Bhogal and the dissenting reasons is D’Amico .

This Court refused to undertake that approach based on binding jurisprudence emanating from the Supreme Court of Canada and the Alberta Court of Appeal, among others. It found no abuse of process in the accepted facts that Mr. Cochrane provided to this Court. Cross-examining the police officers involved would add nothing to this Court’s previous analysis. [ 40 ] There is no doubt the Charter applications concerning the cast-off DNA are “clearly at odds with settled and challenged law [which makes them] manifestly frivolous”: Haevischer at para 5 .

The cast-off DNA component contained in the Prior Decision is affirmed under the manifestly frivolous standard that Haevischer establishes. Heard on the 5 th May, 2023. Dated at the City of Calgary, Alberta this 8 th day of May, 2023 . K.D. Yamauchi J.C.Q.B.A. Appearances:

Carla MacPhail, K.C. & James Thomas Alberta Prosecution Service for the Crown Balfour QH Der, K.C. & James McLeod Der Barristers for the Accused