R. v. S.A.B.

This appeal concerns the constitutionality of the DNA warrant provisions contained in ss. 487.04 to 487.09 of the Criminal Code , R.S.C. 1985, c. C‑46 . For the reasons below, I have concluded that ss. 487.04 to 487.09 conform with the constitutional requirements of a reasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms . There is no need to engage in a separate s. 7 analysis. The appeal also raises an issue regarding the weight to be given to the evidence of the DNA expert, in light of her reliance on extrinsic information. I am of the view that the trial judge was correct in admitting the expert’s evidence and that he was entitled to give it the weight that he thought appropriate. Accordingly, I would dismiss the appeal.

Before turning to the facts and arguments under appeal, I begin by outlining the structure of the DNA warrant provisions. A clear understanding of the detailed procedure set out under the DNA warrant scheme will assist in the subsequent interpretation of the constitutional arguments being advanced by the parties. For ease of reference, the appendix to these reasons contains all of the relevant provisions.

The Criminal Code contains two sets of provisions dealing with the collection and use of DNA evidence. The first, which is at issue in this appeal, is a series of provisions which regulate the search and seizure of DNA materials for investigative purposes. The second set of provisions, which is not at issue here, governs the collection of DNA evidence from convicted persons, and the maintenance of a national DNA data bank. I will return briefly to the DNA data bank below. But first, I will describe in detail the workings of the provisions dealing with the issuance of search warrants in the context of a criminal investigation.

Sections 487.04 to 487.09 of the Criminal Code deal with the issuance of search warrants for the purpose of seizing bodily substances for forensic DNA testing. The process of obtaining a DNA warrant is commenced under s. 487.05 by a sworn information presented ex parte to a provincial court judge, who can only grant the warrant if there are reasonable grounds to believe:

(a) that a designated offence has been committed (importantly, the offences for which one can obtain a DNA warrant are limited to predominantly serious violent and sexual offences listed in s. 487.04);

(b) that a bodily substance has been found at the place where the offence was committed, on or within the body of the victim, on anything worn or carried by the victim or on or within the body of any person or thing or at any place associated with the commission of the offence;

(c) that the person targeted by the warrant was a party to the offence; and

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

Additionally, the judge must be satisfied that it is in the best interests of the administration of justice to issue the warrant (s. 487.05(1)).

Section 487.05(2) provides that in considering whether to issue the warrant, the judge must also consider “all relevant matters”, including but not limited to:

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

(b) whether there is a peace officer or other person under the direction of a peace officer, who is qualified (by training or experience) to collect the bodily substance (s. 487.05(2)).

Section 487.05(3) now permits a warrant to be issued on an information submitted by telephone or other means of telecommunication where a peace officer believes it would be impracticable to appear personally before a judge.

The investigative procedures to be used in taking samples are delineated in s. 487.06(1). The following means may be used to take bodily samples:

(a) the plucking of individual hairs including the root sheath (this includes the plucking of pubic hairs, as is suggested in the French version of the provision by the use of the word poils);

(b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth; and

(c) the taking of blood by pricking the skin surface with a sterile lancet.

Section 487.06(2) additionally requires that a warrant include any terms and conditions that the provincial court judge “considers advisable to ensure that the seizure of a bodily substance authorized by the warrant is reasonable in the circumstances”.

Before executing the warrant, a peace officer must inform the person from whom the sample will be taken of five matters (six in the case of a young person), namely:

(a) the contents of the warrant;

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

(c) the purpose of taking the samples;

(d) the authority to use as much force as is necessary in executing the warrant;

(e) the possibility that the results of the DNA analysis may be used in evidence (s. 487.07(1)). (The additional rights of a young person are outlined under s. 487.07(4).)

The person from whom the bodily samples are being obtained may be detained for a period that is reasonable in the circumstances and may be required to accompany a peace officer for that purpose (s. 487.07(2)).

Section 487.07(3) mandates that the privacy of the person be respected in a manner that is reasonable in the circumstances.

In the case of a young person against whom a warrant is executed, in addition to any rights arising from detention (s. 487.07(2)), the minor has the right to a reasonable opportunity to consult with and have present at the time the warrant is executed, counsel and a parent or person in lieu of a parent (s. 487.07(4)). A young person may waive these rights, but such a waiver must be recorded on audio or video tape or otherwise or made in writing with a statement signed by the minor that he or she has been informed of the right being waived (s. 487.07(5)).

Section 487.08(1) restricts the use of bodily substances collected under a warrant except for forensic DNA analysis in the course of an investigation. “[F]orensic DNA analysis” is defined in s. 487.04 as the comparison of the DNA of the bodily substance from a person in execution of a warrant with the results of the DNA in the bodily substance referred to in s. 487.05(1)(b). The definition also includes “any incidental tests associated with that analysis”. The exact scope of these incidental tests remains for future cases to determine. However, I am inclined to believe, particularly after examining the French version of the provision which states, “y compris tout examen utile à cette fin”, that what is authorized is simply the furtherance of the “forensic DNA analysis”. That is, those tests that may be useful in advancing the matching of the two samples, and nothing more, are permitted. Furthermore, the results of such DNA analysis may only be used in the course of an investigation of the designated offence (s. 487.08(2)). Contravention of either subs. (1) or subs. (2) is an offence punishable on summary conviction (s. 487.08(3)).

The unauthorized use of bodily substances is also prohibited through s. 487.09, which states that both the bodily substance and the test results shall be destroyed (or now, in the case of results in electronic form, access to those results shall be permanently removed) without delay:

(a) if the results are negative (that is, the two samples do not match);

(b) if the person is acquitted of the designated offence and any other offence in respect of the same transaction;

(c) upon the expiration of one year after

(i) the person is discharged at a preliminary hearing;

(ii) a dismissal or withdrawal of the information, other than an acquittal;

(iii) a stay under s. 579 alone, or s. 579 and s. 572 or s. 795,

unless during that year a new information is laid or an indictment is preferred charging the person with a designated offence or any other offence in respect of the same transaction or the proceeding is recommenced.

Section 487.09(2) provides an exception permitting a provincial court judge to order that neither the bodily substance nor the test results be destroyed for any period that the judge considers appropriate if satisfied that they might reasonably be required in an investigation or prosecution of:

(1) the same person for another designated offence; or

(2) another person for the original designated offence or any other offence in respect of the same transaction.

Amendments to the DNA warrant provisions in 1998 require that bodily substances that are provided voluntarily by a person and the results of the DNA analysis shall be destroyed (or in the case of results in electronic form, access to those results shall be permanently removed) without delay if the results establish that the bodily substance referred to in s. 487.05(1)(b) was not from that person. In addition, where a bodily substance is provided voluntarily in the course of an investigation, the definition of “forensic DNA analysis” is limited, and does not include any “incidental tests” (s. 487.04(b)).

As indicated earlier, the DNA warrant provisions are different from, though related to, the DNA data bank provisions of the Criminal Code found in ss. 487.051-487.058, s. 487.071 and s. 487.091. The DNA data bank provisions, which should be read in conjunction with the DNA Identification Act , S.C. 1998, c. 37 , are not at issue in this appeal. For clarity’s sake, however, and because the two DNA schemes are intermingled, it is useful to briefly distinguish the DNA data bank provisions.

The purpose of the DNA data bank is to help law enforcement agencies identify persons alleged to have committed designated offences (s. 3 of the DNA Identification Act). The data bank consists of a crime scene index containing DNA profiles (the results of forensic DNA analysis) derived from bodily substances found in places associated with the commission of certain types of serious offences, and a convicted offenders index containing DNA profiles obtained from persons convicted or discharged of those types of offences.

Like the DNA warrant provisions, the DNA data bank scheme applies only to designated offences set out in s. 487.04, which consist primarily of violent and sexual offences that might involve the loss or exchange of bodily substances that could be used to identify the perpetrator through DNA analysis.

The Criminal Code authorizes the collection of bodily substances from offenders who meet clearly defined criteria and who are currently serving sentences (s. 487.051) and from whom DNA profiles can be derived for inclusion in the DNA data bank.

I turn now to the specifics of this appeal.

The appellant, S.A.B., was accused of the sexual assault and sexual exploitation of a 14-year-old girl pursuant to ss. 271 and 153(1) (a) of the Criminal Code . The indictment stemmed from incidents that took place in Hinton, Alberta, around July of 1996. A few months following the alleged sexual assault, the young complainant discovered that she was pregnant at which point she advised her mother that the appellant, S.A.B., who had been living with the complainant’s family for several months, had sexually assaulted her. The complainant had an abortion and the police seized the fetal tissue for DNA testing.

Pursuant to an ex parte warrant authorizing the seizure of a blood sample under ss. 487.04 to 487.09, the police seized a blood sample from the appellant and conducted DNA analysis. Typically, forensic DNA analysis will compare two samples of DNA to determine if they match. In this case, the forensic DNA analysis compared the appellant’s blood sample with the fetal tissue (the combined DNA of the complainant and the accused) taken from within the complainant’s body in order to confirm or deny that the appellant had fathered the fetus. Essentially, a paternity test was conducted with the appellant’s DNA. Such use of the DNA is contemplated by the legislation per s. 487.05(1)(b)(ii). The appellant was arrested and charged with sexual assault. At trial, the appellant sought a declaration that the DNA warrant provisions in ss. 487.04 to 487.09 violate ss. 7 and 8 of the Charter .

During the trial, evidence was presented that five of the seven DNA samples taken from the appellant were conclusive and established the probability that S.A.B. was not the father of the fetus to be 1 in 10 million. The sixth test sample was damaged and yielded inconclusive results. The seventh sample did not match the appellant’s DNA. This non‑matching sample was determined by the Crown DNA expert to be a mutation and was therefore disregarded. The DNA expert, Dr. Szakacs, testified that “mutations are well documented in paternity testing, and the international guidelines state that at least two exclusions have to be noted before parental exclusion can be determined”. No evidence was given as to the nature of the international guidelines referred to. If the non-matching sample was not a mutation, there would be no possibility that the accused was the father of the fetus. The appellant argued that the opinion evidence of the DNA expert lacked a factual foundation.

Murray J. relied on his analysis in R. v. Brighteyes (1997), 199 A.R. 161 (Q.B.), wherein counsel advanced largely the same constitutional challenge to ss. 487.04 to 487.09, and found that the DNA provisions did not violate s. 8. Murray J. found that the provisions violated s. 7 because they involved the coercive taking of conscriptive evidence, but he went on to find the provisions justified under s. 1.

An objection raised against the DNA provisions that had not been raised in Brighteyes, supra, concerned the ex parte nature of the DNA warrants. The appellant argued that it was a well‑established principle of natural justice that a decision affecting a person’s fundamental interests should not be made without giving that person notice and an opportunity to be heard. As such, S.A.B. argued that the words “ex parte” should be read out of s. 487.05(1) and words requiring notice should be read in. Murray J. held that s. 487.05(1) does not deprive a judge of the option of requiring notice and that an issuing judge may find it advisable to make notice a condition of the warrant in order to ensure reasonableness and fairness in the circumstances. Murray J. noted that the DNA provisions included a number of protections for the suspect, and that an accused would have an opportunity to be heard in a voir dire on whether the evidence could be used at trial. In his view, the legislation appropriately balanced the interests of the state and of the individual.

Murray J. rejected the appellant’s request for a remedy under s. 24(1) of the Charter . He dismissed several other arguments made by the appellant that the DNA warrant provisions were defective. Some of these arguments are not before this Court. Murray J. held that the DNA warrant issued in the present case was valid and that both the supporting information and the judge’s discretion to issue the warrant were not flawed. He held that the appellant’s Charter rights had not been infringed and that the DNA evidence was admissible at trial. In March of 1999, the appellant was convicted of sexual assault and sentenced to six years of incarceration. He was found not guilty of sexual exploitation.

(1) Russell J.A., for the majority

Russell J.A. agreed with the trial judge’s conclusion that the DNA provisions did not offend s. 8. She held that reasonable grounds was an appropriate standard to justify a search and seizure of substances from the human body. The internal safeguards in the legislation ensured that any special concerns related to the bodily integrity and privacy of the suspect would be taken into account in the issuance of the warrant. Necessity did not have to be an explicit precondition to issuing a warrant. The ex parte nature of the proceedings was constitutionally acceptable because of the risk that a suspect would flee the jurisdiction. Considering the legislation as a whole, and the numerous safeguards it included, the DNA warrant provisions provided for reasonable searches and seizures.

Russell J.A. held that the trial judge had erred in finding that the legislation contravened s. 7 of the Charter . She applied R. v. White, [1999] 2 S.C.R. 417, and held that the appellant failed to prove, on a balance of probabilities, that s. 7 had been infringed. She found that the principle against self‑incrimination was not part of the s. 8 analysis and fell to be considered in connection with s. 7. Russell J.A. noted, however, that the principles of fundamental justice are not absolute, but must be interpreted contextually in light of all the relevant individual and societal interests. She found that the rationales supporting the principle against self‑incrimination were not strongly implicated by the collection of DNA evidence.

Russell J.A. held that the standard of review of the judge’s conclusion on the expert evidence was reasonableness. As long as the expert was properly qualified, her evidence was entitled to some weight. It was for the trial judge to decide how much weight to give it. Russell J.A. expressed some doubt about the way the non‑matching sample was dealt with and the weight given to the expert’s testimony, but she could not say that the verdict reached by the trial judge was unreasonable.

(2) Berger J.A., dissenting

Berger J.A. was of the opinion that the standard of reasonable probability was constitutionally insufficient for this kind of search. The case law has repeatedly recognized the especially invasive nature of searches involving interference with a person’s bodily integrity. Given the severe compromise of individual interests, Berger J.A. argued that a DNA warrant should only be issued if a judge is convinced on a balance of probabilities by clear, cogent and compelling evidence that the information in support of the DNA warrant is justified. Berger J.A. would therefore have read this standard into the provisions. He held that the failure to apply such a high standard resulted in a violation of the principle against self‑incrimination and raised a real or imminent deprivation of liberty and security of the person. According to Berger J.A., the DNA evidence, given its conscriptive nature, should have been excluded pursuant to s. 24(2) of the Charter .

Berger J.A. was also of the opinion that no weight should have been given to the evidence of the DNA expert. The record should show that an expert’s opinion was based, if not on evidence proved at trial, at least on evidence widely used and acknowledged as reliable by experts in the field. There was no information in the record about the provenance or reliability of the “international guidelines” referred to by the expert. The trial judge had relied on the expert’s opinion to reach his conclusion, and it could not be said that he would have reached the same verdict had he not given weight to the expert’s evidence. The constitutional issue apart, Berger J.A. would have ordered a new trial.

The principle against self‑incrimination imposes limits on the extent to which an accused person can be used as a source of information about his or her own criminal conduct. Lamer C.J. broadly defined the principle in R. v. Jones, [1994] 2 S.C.R. 229, at p. 249, and Iacobucci J. reiterated it in White, supra, at para. 42:

Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self‑incrimination.

In R. v. S. (R.J.), [1995] 1 S.C.R. 451, at para. 107, Iacobucci J. articulated that “the principle against self-incrimination may mean different things at different times and in different contexts” indicating that the principle is not absolute. The question of whether bodily samples constitute conscriptive evidence that raise the principle against self-incrimination was addressed in R. v. Stillman, [1997] 1 S.C.R. 607. In that case the state had, without statutory authority or the appellant’s consent, searched and seized scalp and pubic hairs of a person in custody, and had taken dental impressions and buccal swabs from him. The majority of this Court did not differentiate between the oral testimony of the accused and the bodily substances or “real” evidence from the accused (Stillman, supra, at paras. 83-86). No distinction was drawn between products of the mind and products of the body with respect to the principle against self-incrimination.

In light of Stillman, supra, searches and seizures pursuant to a DNA warrant engage the principle against self-incrimination. However, the principles of fundamental justice that are alleged to be implicated by a DNA search and seizure, including the principle against self-incrimination, are more appropriately considered under a s. 8 analysis. Indeed in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159, Dickson J. (as he then was) noted that he would “be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy”. In R. v. Mills, [1999] 3 S.C.R. 668, at para. 88, a majority of this Court held that it was appropriate to consider an accused’s right to full answer and defence in determining whether a search and seizure of a complainant’s therapeutic counselling records was reasonable. Similarly, in my view, it is proper to consider an accused’s right not to incriminate him- or herself in determining whether a DNA warrant complies with s. 8 of the Charter . I turn now to a more detailed analysis of the alleged infringement of s. 8 of the Charter .

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” This Court has held that for a search to be reasonable it must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable (Stillman, supra, at para. 25; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83; R. v. Collins, [1987] 1 S.C.R. 265). This appeal concerns only the second requirement, that is, whether the statutory scheme providing for DNA warrants is reasonable.

The appellant advances three grounds of attack on the constitutionality of the DNA warrant provisions. Counsel argued that the balance between the individual and state interests has not resulted in a reasonable search for three reasons: (i) the legislation is not minimally intrusive; (ii) the legislation operates on reasonable grounds alone; and (iii) the legislation allows for ex parte applications in all cases. Before turning to these specific arguments, I must stress the many ways in which the DNA warrant provisions accord with the constitutional imperatives.

As Dickson J. noted in Hunter, supra, at pp. 159-60, s. 8 protects a reasonable expectation of privacy:

[A]n assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.

Generally, the proper balancing of these interests requires that there be a system of prior authorization through the issuance of a warrant by a decision maker capable of balancing the interests at stake and acting judicially. The DNA warrant scheme clearly fulfills these requirements by providing a detailed procedure under which a warrant is issued by a judicial officer. Significantly, s. 487.05(1) provides that an application to obtain a warrant must be made to a provincial court judge rather than, as is typical in obtaining other types of warrants, by making an application to a justice of the peace. This measure indicates Parliament’s attentiveness to the seriousness of the interests at stake in obtaining a DNA warrant.

As previously noted, in addition to the usual reasonable grounds requirements, the Criminal Code restricts the availability of DNA warrants to designated offences and requires that the judge be satisfied that it is in the best interests of the administration of justice to issue the warrant (s. 487.05(1)).

The taking of bodily samples can involve significant intrusions on an individual’s privacy and human dignity (Stillman, supra, at para. 51). However, the extent to which there is such an intrusion will depend on the circumstances. In weighing the reasonable privacy interests that are at stake when a DNA warrant is issued, it is useful to consider the categories set out by La Forest J. in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 428: privacy may include territorial or spacial aspects, aspects related to the person, and aspects that arise in the informational context. It is the latter two aspects that are at issue under this legislation.

The DNA warrant provisions of the Criminal Code may be contrasted with an earlier attempt to use the general warrant provisions of the Criminal Code to authorize an intrusive surgical operation to remove evidence from the body of a suspect. In the unusual case of Re Laporte and The Queen (1972), 29 D.L.R. (3d) 651 (Que. Q.B.), a provincial court judge had issued a search warrant authorizing police officers to cause a bullet lodged in the shoulder of a suspect to be removed by duly qualified doctors. The judge was satisfied that there were reasonable and probable grounds to believe that a 38-caliber slug was deeply embedded in the shoulder of a man suspected of having participated in a robbery.

Hugessen J., then of the Quebec Superior Court, quashed the search warrant by issuing a writ of certiorari. Remarking that the search warrant provisions of the Criminal Code are phrased in general terms to authorize the search of any “building, receptacle or place”, he added (at pp. 661-62):

Words much plainer than those used would be required to convince me that Parliament intended in this section to authorize the breaking open of the human frame by means of a search warrant. As I pointed out during the argument, if the police are today to be authorized to probe into a man’s shoulder for evidence against him, what is to prevent them tomorrow from opening his brain or other vital organs for the same purpose. The investigation of crime would no doubt be thereby rendered easier, but I do not think that we can, in the name of efficiency, justify the wholesale mutilation of suspected persons.

The criminal law has always had to strike the precarious balance between the protection of society on the one hand and the protection of the rights of the individual members of such society on the other. Both rights are equally important, but any conflict between them must wherever possible be resolved in a manner most compatible with individual human dignity. The constant preoccupation of our Courts with the protection of the citizen against the state results in the Crown having always to bear the burden in any criminal prosecution. I am not the first Judge, and I trust that I shall not be the last, to decide that the possibility that some guilty persons may escape the net of justice is not too high a price to pay for the right to live in freedom. If the Crown cannot prove its case against Laporte without doing physical violence to his person then it is better that the case be not proved.

In my view the Justice had no jurisdiction, either by statute or at common law, to issue this warrant and it is my duty to interfere and prevent what I can only describe as a grotesque perversion of the machinery of justice and an unwarranted invasion upon the basic inviolability of the human person. Even if the operation proposed were minor, and the evidence is that it is not, I would not be prepared to sanction it and I do not do so.

The balance so eloquently described by Hugessen J. in this pre-Charter case between the truth-seeking interests of law enforcement and the equally essential respect for individual rights has been accommodated in the DNA warrant provisions of the Criminal Code .

With regards to privacy related to the person, the taking of bodily samples under a DNA warrant clearly interferes with bodily integrity. However, under a properly issued DNA warrant, the degree of offence to the physical integrity of the person is relatively modest (R. v. F. (S.) (2000), 141 C.C.C. (3d) 225 (Ont. C.A.), at para. 27). A buccal swab is quick and not terribly intrusive. Blood samples are obtained by pricking the surface of the skin — a procedure that is, as conceded by the appellant (at para. 32 of his factum), not particularly invasive in the physical sense. With the exception of pubic hair, the plucking of hairs should not be a particularly serious affront to privacy or dignity.

Importantly, s. 487.07(3) of the legislation requires that the person who is authorized to take samples do so in a manner that respects the offender’s privacy and is “reasonable in the circumstances”. Thus, as Weiler J.A. articulated in R. v. Briggs (2001), 157 C.C.C. (3d) 38 (Ont. C.A.), at para. 35, “a person would not ordinarily be required to expose a part of the body that is not ordinarily exposed to view”.

As previously mentioned, s. 487.06(2) additionally provides that the warrant “shall include any terms and conditions that the provincial court judge considers advisable to ensure that the seizure of a bodily substance authorized by the warrant is reasonable in the circumstances”.

In my view, the statutory framework alleviates any concern that the collection of DNA samples pursuant to a search warrant under ss. 487.04 to 487.09 of the Criminal Code constitutes an intolerable affront to the physical integrity of the person.

The informational aspect of privacy is also clearly engaged by the taking of bodily samples for the purposes of executing a DNA warrant. In fact, this is the central concern involved in the collection of DNA information by the state. Privacy in relation to information derives from the assumption that all information about a person is in a fundamental way his or her own, to be communicated or retained by the individual in question as he or she sees fit (per La Forest J. in Dyment, supra, at p. 429). There is undoubtedly the highest level of personal and private information contained in an individual’s DNA. However, it is important to recall that the bodily samples collected pursuant to a search warrant issued under ss. 487.04 to 487.09 are collected for a limited purpose, clearly articulated in the Criminal Code .

The DNA warrant scheme limits the intrusion into informational privacy by using only non-coding DNA for forensic DNA analysis. As previously noted, s. 487.04 defines “forensic DNA analysis” as the comparison of the DNA in the bodily substance seized from a person in execution of a warrant with the results of the DNA in the bodily substance referred to in s. 487.05(1)(b). In other words, the DNA analysis is conducted solely for forensic purposes and does not reveal any medical, physical or mental characteristics; its only use is the provision of identifying information that can be compared to an existing sample. The evidence of Dr. Ron Fourney at the Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 43, November 25, 1998, at p. 43:46, confirms the scientific community’s understanding of the DNA used for forensic analysis:

[A]s forensic scientists, we are interested in everything that does not code for anything. That is to say, we are looking at anonymous pieces of DNA. By international convention with Venice in 1993, forensic scientists all over the world agree that we will take STR markers — that is, short tandem repeat — or pieces of DNA. By convention, the only ones that we are permitted to use in forensics are those that do not predict any medical, physical or mental characteristics.

Additional factors limit the intrusion into informational privacy: s. 487.05(1)(b), s. 487.08(1) and s. 487.08(2) place limits on the use of the information obtained from DNA analysis including making it an offence to use a bodily substance obtained in execution of a DNA warrant except in the course of an investigation of the designated offence. That the DNA warrant scheme explicitly prohibits the misuse of information is an important factor that ensures compliance with s. 8 of the Charter .

Before turning to the specific challenges to the DNA warrant scheme advanced by the appellant, it is also necessary to consider the interests of the state in seeking a DNA warrant. The state’s interest in the DNA warrant scheme is a significant one. Effective law enforcement benefits society as a whole. Subsumed under the larger head of “law enforcement” is the interest in arriving at the truth in order to bring offenders to justice and to avoid wrongful convictions. The enormous utility and power of DNA evidence as an investigative tool has been documented both by the trial judge in Brighteyes, supra, and by the Ontario Court of Appeal in F. (S.), supra. Indeed, “a DNA match will in many cases, with virtual certainty, eliminate the person as a suspect . . . [or] provide evidence that it was his bodily substance(s) that was found at one or more of the places set out in s. 487.05(1)(b)” (Brighteyes, supra, at para. 110). This is an identification tool of great value to the criminal process.

I can therefore conclude that, in general terms, the DNA warrant provisions of the Criminal Code strike an appropriate balance between the public interest in effective criminal law enforcement for serious offences, and the rights of individuals to control the release of personal information about themselves, as well as their right to dignity and physical integrity.

I turn now to the specific grounds of attack against the DNA warrant provisions advanced by the appellant. The appellant argued that DNA warrants should only be available when it is necessary for the state to obtain a sample because it cannot investigate effectively by using less intrusive techniques. In other words, DNA warrants should be a “last resort” investigative tool. This approach is analogous to the constitutional requirement applicable to wiretap authorizations (see R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 37). Judicial authorization to intercept private communications by recording devices cannot be issued unless the court is satisfied that other investigative techniques have been tried and have failed or are unlikely to succeed (Criminal Code , s. 186(1) (b)).

I see no reason to import, as a constitutional imperative, a similar requirement in the case of DNA warrants. There are obvious differences between the use of wiretaps as an investigative tool, and recourse to a DNA warrant. Wiretaps are sweeping in their reach. They invariably intrude into the privacy interests of third parties who are not targeted by the criminal investigation. They cast a net that is inevitably wide. By contrast, DNA warrants are target specific. Significantly, DNA warrants also have the capacity to exonerate an accused early in the investigative process. Although it would have been open to Parliament to provide for the use of forensic DNA analysis as a last resort investigative technique, I can see no reason to require, as a condition for constitutional compliance, that it be so. Moreover, as the Court of Appeal noted, the s. 487.05(1) requirement of showing that the warrant is “in the best interests of the administration of justice” would prevent a judge from issuing a warrant where it is unnecessary to do so.

The appellant’s second concern is that the standard of “reasonable grounds” alone, which is appropriate for ordinary warrants, is insufficient for searches and seizures that violate bodily integrity and force self‑conscription. In my view, this exaggerates the degree of intrusiveness of DNA warrants. With respect to the concerns for personal dignity and bodily integrity, the proper execution of a DNA warrant would compare favourably to strip searches. In Golden, supra, at para. 90, strip searches were held to be “inherently humiliating and degrading”, but nonetheless valid, provided certain conditions were met, when conducted on the basis of a reasonable and probable grounds standard. The standard of “reasonable grounds” is well recognized in the law and I see no reason to adopt a higher one in the case of DNA warrants.

Finally, the appellant contends that the ex parte nature of the proceedings renders the legislation unconstitutional. Requiring an inter partes hearing for a search warrant that is part of the investigative process could unnecessarily draw out and frustrate the criminal investigation. However, the majority of the Court of Appeal was correct to observe that the reference to ex parte proceedings is not mandatory. Indeed, s. 487.05(1) does not deprive a judge of the option of requiring a contested hearing in a suitable case. An issuing judge may find it advisable to require notice in order to ensure reasonableness and fairness in the circumstances. But, as with most investigative techniques, the ex parte nature of the proceedings is constitutionally acceptable as a norm because of the risk that the suspect would take steps to frustrate the proper execution of the warrant.

The last matter to consider in this s. 8 analysis is the principle against self-incrimination. Not all conscriptive evidence will violate the principle against self-incrimination; indeed, that principle has a limited scope, and requires different things at different times (White, supra, at para. 45; S. (R.J.), supra, at para. 97). Determining the particular requirements of, and limits on the principle against self-incrimination requires a consideration of the principle’s underlying rationales. This Court has identified two such rationales — (i) to protect against unreliable confessions (or in this case, evidence), and (ii) to protect against the abuse of power by the state. As this Court recognized in White, supra, these rationales are linked to the importance of privacy in Canadian society. However, considerations of privacy (which generally form the core of the s. 8 analysis) cannot exhaust the analysis where the principle against self-incrimination is at issue. It is true that where a person is forced to provide evidence contrary to the principle against self-incrimination, he or she is revealing information, thus engaging privacy interests. However, more fundamentally, that evidence is given so that it may be used in a case against him or her. Thus, as this Court recognized in S. (R.J.), supra, the principle against self-incrimination rests on the fundamental notion that the Crown has the burden of establishing a “case to meet” and must do so without the compelled participation of the accused.

The question, then, is whether the DNA warrant provisions at issue in this case impermissibly violate the principle against self-incrimination, thus rendering any search or seizure performed under them unreasonable, contrary to s. 8. In my view, a consideration of the principle’s underlying rationales indicates that they do not. First, unlike cases involving testimonial compulsion, there is no concern with unreliability. On the contrary, one of the benefits of DNA evidence is its high degree of reliability. The second rationale — protection against the abuse of power by the state — requires a somewhat deeper analysis. As a majority of this Court indicated in White, supra, the degree to which the principle is engaged will depend in part on the extent to which coercion was used by the state in obtaining the statements; the extent to which the relationship between the accused and the state was adversarial at the time the conscriptive evidence was obtained; and the presence or absence of an increased risk of abuses of power by the state as a result of the compulsion (White, supra, at para. 51).

The adversarial nature of the relationship between the state and the individual and the degree of coercion in the present context are undoubtedly high. As Lamer C.J. stated in Jones, supra, at p. 249, “[c]oercion . . . means the denial of free and informed consent.” A person has little choice but to comply with the request for blood, hair or saliva made under a valid DNA search warrant. Further, the context in which the bodily samples are taken is obviously adversarial, there being reasonable grounds to believe that the target of the warrant was a party to an offence. However, while these factors are highly engaged, it is important to note that under the DNA warrant provisions, there are a number of safeguards in place to prevent abuse of those provisions by the state. In particular, the prior judicial authorization, circumscribed by strict requirements of reasonable and probable grounds and stringent limits on the potential use of the collected DNA evidence, ensures that the power to obtain bodily samples is not abused. It is also important to acknowledge that, as previously noted, the degree of intrusion both physical and informational is limited.

In sum, a consideration of the rationales underlying the principle against self-incrimination suggests that this is one of those cases, mentioned in White, supra, at para. 48, where “the factors that favour the importance of the search for truth . . . outweigh the factors that favour protecting the individual against undue compulsion by the state”.

To conclude, the legislative scheme delineated in ss. 487.04 to 487.09 is sensitive to the various interests at play. On balance, the law provides for a search and seizure of DNA materials that is reasonable. In light of the high probative value of forensic DNA analysis, the interests of the state override those of the individual. Forensic DNA analysis is capable of both identifying and eliminating suspects, a feature that seriously reduces the risk of wrongful convictions. The DNA provisions contain procedural safeguards that protect adequately the multiple interests of the suspected offender. The DNA warrant scheme therefore complies with s. 8 of the Charter . I turn now to the final issue, the expert’s evidence.

The appellant submits that the trial judge ought to have given no weight to the DNA expert’s evidence, as it relied on an unproven assumption that the non-matching test sample was a mutation. Sopinka J. in his concurring judgment in R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 899, stressed that courts ought to distinguish between evidence that an expert obtains and acts upon within the scope of his or her expertise, and evidence that an expert obtains from a party to the litigation touching a matter directly in issue. He suggested that where the expert relies on the former type of “unproven” evidence, the weight of the expert opinion need not be discounted.

In my view, it is clear that the expert’s reliance on the international guidelines was reliance on information obtained and acted upon within the scope of her expertise. It was entirely open to the appellant to challenge the expert on that issue. Absent such a challenge, the expert was entitled to refer to the sources within her field of expertise to explain and support her conclusions. Berger J.A., dissenting at the Court of Appeal, is correct that the record offers little information about the international guidelines referred to by the DNA expert (para. 131). However, her expert evidence was tested according to the normal processes of the adversarial system. Dr. Szakacs was cross-examined by the defence, and the trial judge was satisfied that the current standards in technology and competence had been met. It was open to the trial judge to give the opinion of the expert the weight that he considered appropriate and there is no basis upon which this Court could interfere with his assessment of that evidence. The trial judge was alive to his obligation to weigh carefully and appropriately the evidence tendered by the DNA expert. His verdict was not based solely on the DNA results, but also to a large degree on the circumstantial evidence and on his finding that the complainant’s testimony was credible.

For these reasons, I would dismiss the appeal. The constitutional questions should be answered as follows: