Ontario Criminal

Charter of Rights

Searches neither reasonable nor authorized by law

Application by Crown for ruling regarding voluntariness of accused’s videotaped statement. Application by accused for stay of charge or for exclusion of certain evidence because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was charged with sexual assault. When he was arrested on evening of April 19, 2010, he was handcuffed, searched incident to arrest and he was informed of his right to counsel. Accused stated that he understood and he wished to speak to lawyer and to call legal aid. He was given opportunity to speak to duty counsel and he spoke to him for seven minutes. Officer in charge of investigation seized accused’s clothing and obtained penile swab in order to determine whether complainant’s DNA was on accused’s clothes or penis. At that time officer was not trained sexual assault investigator and he did not consult with more experienced officers. Officer did not obtain search warrant because he thought DNA evidence would be compromised if he waited for warrant and he thought he could seize clothing and obtain swab as part of search incidental to arrest. To obtain clothing and swab accused had to remove his clothing in presence of two male officers. Crown’s application allowed and accused’s application allowed in part. Accused was subjected to strip search. That search and penile swab violated s. 8 of Charter. Such searches were neither reasonable nor authorized by law as they were not searches incidental to arrest. Searches were not authorized by law because they were not conducted in reasonable manner and without properly articulated grounds. Sections 7 and 12 of Charter were also violated. Accused’s right to counsel was breached because he should have been re-informed of his right to counsel prior to strip search and swab. Despite breaches accused was not entitled to stay because police conduct would not shock public. Penile swab evidence was inadmissible due to Charter breaches. Blood sample that was taken from accused in February 2012 was admissible because there was insufficient causal or temporal connection between taking of sample and breach of accused’s rights that occurred on April 19. Videotaped statement was given voluntarily and Crown could cross-examine on it if accused chose to testify. There was no police trickery.

R. v. Pun (Sep. 20, 2012, Ont. S.C.J., Gilmore J., File No. 10-03774G) 103 W.C.B. (2d) 983.

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