DNA testing approved by appeal court

The Quebec Court of Appeal ruled that a police officer who obtained surgical dressing from an unconscious patient in a hospital in order to conduct a DNA test did not infringe the Criminal Code and the Canadian Charter of Rights and Freedoms.

In a 12-page unanimous ruling, the Court determined that the seizure did not infringe s.487 of the Criminal Code even though the justice of the peace who signed the warrant was not informed by the police officer seeking the warrant that the suspect was unconscious following surgery.

“While it is true that the police officer did not specifically state that the appellant was unconscious, this does not constitute in my opinion an omission that is important,” said Justice François Doyon in Kaba c. R., 2008 QCCA 116. “Under the circumstances, given that the seizure did not require the consent of the appellant, I cannot believe that his unconscious state could have changed anything in the decision made by the justice of the peace.”

The plaintiff, Al Moussa Kaba, who was found guilty of nine criminal charges including home invasion and assault with a weapon, argued that the search was abusive because it did not satisfy the conditions spelled out in s.487.04 to obtain a warrant for DNA testing.

The Court points out that s.487.06 of Criminal Code authorizes a peace officer who obtained a warrant to take samples of bodily substances from a person by plucking individual hairs from the person, taking a buccal swab or taking blood by pricking the skin surface with a sterile lancet. These procedures, reminds the Court, seek to protect the physical integrity and intimacy of a person against intrusive invasions. “It does not however seek to protect against the seizure of an object that contains bodily substances that is capable of being analyzed,” said Judge Doyon.

An application for leave to appeal was dismissed by the Supreme Court of Canada.

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