mr. stillman, dna and discarded evidence in criminal cases

C. Cigarette Butts and Pop Cans from the CourthouseIn R. v. Johnson, Justice Bryk was asked to rule on the admissibility of DNA evidence obtained from the seizure ofJohnson’s cigar. The issue was that while in police custody, the accused was taken to the Dauphin Courthouse toarrange for his release. As a result of some minor difficulty, the surety had to leave and while waiting for her return,the accused decided to have a cigar and went outside with his lawyer (Semchuk) and the police officer (Kirouac). Hestood on the vestibule just outside the courthouse door while he smoked. There are ashtrays attached to thecourthouse building on either side of the entrance doors. When the surety returned, the accused placed the cigarilloon the ashtray but did not extinguish it. He re-entered the building. While he was at the counter completing thepaperwork, the police officer obtained an envelope from the sheriff's office, returned to the ashtray and took the cigarthat had been left by the accused.In admitting the evidence, Justice Bryk stated that:The police are entitled to collect an abandoned item and use it in evidence. This does not violate any Charter rights. However, when anaccused is custody, the issue of abandonment must be decided considering all of the circumstances of the abandonment.Here, the Applicant was technically in custody in that the documentation to secure his release from custody was not yet completed.However, his freedom was not restricted except for the fact that he could not leave without the documentation being completed. He wasfree to step outside the courthouse to have a cigar. The evidence clearly establishes that he did that and was followed by both Semchukand Kirouac. There was no attempt by Kirouac to restrict his movement or his activity. The smoking of the cigar was a voluntary act onhis part as was its placement on the ashtray. The Applicant was not told by Kirouac to step back inside the building or to stop smokingthe cigar. This also was voluntary on the part of the Applicant. There was no indication from the Applicant that he intended to return tofinishing smoking the cigar. Finally, there was no evidence that he returned to the ashtray or that he made any attempts to have theunfinished cigar returned to him.On the evidence before me, I cannot conclude that the seizure violated the Applicant's s. 8 Charters Rights. I find that the Applicantabandoned the cigar when he placed it in the ashtray and re-entered the building to complete his business. There is no evidence that heknew how long the unfinished business inside would take nor is there any evidence as to his actions following completion of thatbusiness. The mere fact of his not having butted or extinguished his cigar is inconclusive to establish his intentions with respect toretaining possession of that item. I therefore dismiss the Application. 18More recently, in R. v. Marini, 19 Justice Clark of the Ontario Superior Court found no Charter breach inadmitting DNA evidence derived from two ginger ale cans discarded by the accused during pre-trial motions at thecourthouse.The accused, who was on charge for manslaughter in relation to a jewelry store robbery, left behind several hairsin the duct work and ventilation shafts above the ceiling in the jewelry store where he had been hiding, waiting for thejeweler to arrive. A DNA profile was extracted from one of the hairs and during a scheduled court appearance thepolice surreptitiously seized two pop cans he discarded in the courthouse. It was subsequently determined that theDNA profile derived from the hair matched the profile from cans. In holding that there was no s. 8 breach, JusticeClark stated:I am not convinced … that the average person would be likely to have any greater subjective expectation of privacy in the generalenvirons of a courthouse than that person would have in the public areas of any other building to which the general public has access.Thus, even if there were evidence from which it could be inferred that this accused had a subjective expectation of greater privacy withinthe courthouse than in other public places, I am not persuaded that such expectation would be a reasonable one.…While it may be reasonable to expect that the applicant would consume food or drink during the court day, I am not persuaded that theparallel that [the defence] seeks to draw between the custodial situation in Stillman and the situation in the case at bar is valid. This isnot a case like Stillman where the genetic material came into existence by what Cory J. referred to as the "inevitable consequence of thenormal functioning of the human body." Indeed, it is quite the contrary; there was nothing, in my view, inevitable about the way inwhich the items seized were generated.…To my mind, there is more to be discerned respecting one's continuing privacy interest, or expectation of privacy, from the manner inwhich the article is discarded as opposed to the nature of the container. For example, if a person were to shred documents before puttingthem in the trash, and the police were later to seize the shredded documents and reconstruct them, although the cases on point seem tohold the contrary, it strikes me that one could make a reasonable argument that since the person made a concerted effort to preventothers from learning the content of the documents the court ought to recognize a residual privacy interest not in the documents asphysical artifacts, but in the information they contained. To compare that to the situation at bar, if there were some evidence that theapplicant had, before discarding them, made an effort to render the cans unsuitable for DNA analysis, for example, by something assimple as taking the time to rinse the cans with water, one could perhaps then sensibly argue that was some evidence that the applicant,while content to relinquish his privacy interest in the cans, was anxious to maintain his privacy interest in the genetic informationcontained in or on the cans by rendering that information unavailable to others. There is no such evidence in the case at bar.1819R. v. Johnson (sub nom R. v. Grywacheski), [2004] M.J. No. 108; (2004) 117 C.R.R. (2d) 249 (Man. QB), at paras. 17-19.R. v. Marini, [2005] O.J. No. 6197.