Stillman was arrested for the murder of a teenage girl. The victim was found with semen in her vagina and a human bite mark on her abdomen. At the police station, Stillman's lawyers informed the police that he did not consent to provide any bodily samples, including hair and teeth imprints, or to give any statements. After the lawyers left, police took, under threat of force, scalp hair from accused and he was made to pull some of his own pubic hair. Plasticine teeth impressions were also taken. An officer interviewed the accused for an hour in an attempt to obtain a statement. Throughout the interview, accused sobbed, and after speaking with his lawyer, he was escorted to the washroom where he used a tissue to blow his nose. The tissue containing the mucous was seized from the wastebasket by the officer and used for DNA testing. Stillman was released but subsequently re-arrested, at which time, a dentist took new teeth impressions without the accused's consent and more hair, saliva samples and buccal swabs were also taken from accused. Following a voir dire, the trial judge found that the hair samples, buccal swabs and teeth impressions had been obtained in violation of s. 8 of the Charter but nevertheless should be admitted. Stillman was convicted of first degree murder and the conviction was upheld on appeal.
- Can the police secure biological samples from an accused incidental to arrest?
Appeal allowed, new trial ordered with the hair samples, teeth impressions, and buccal swabs excluded.
The Crown argued that the hair and teeth were seized under the common law power of search incident to lawful arrest. Cory, writing for the majority, held there were three conditions for a search incident to arrest to be valid:
- the arrest must be lawful;
- the search must have been conducted as an "incident" to the lawful arrest; and
- the manner in which the search is carried out must be reasonable (R v Collins).
The original rationale for this power was based on the need for the arresting officers to prevent the escape of the person arrested and to protect themselves by removing from the person arrested any weapon or tool that might facilitate escape, the need to prevent evidence under the control of the detainee from being destroyed, and the need to protect the safety of the arresting officers and the public.
The common law power is eminently sensible and is essential for the protection of police officers carrying out their all too often dangerous duties, however, reasonable limits of that power have been defined to avoid abuses.
Cory considers Cloutier v Langlois where the scope of the common law power of search upon lawful arrest was considered. The case established that such a search does not require reasonable and probable grounds beyond the grounds that were sufficient to support the lawfulness of the arrest itself. The case did recognize three limitations to the common law power:
- the power is a discretionary one and in certain circumstances the officer may properly exercise his discretion not to conduct a search;
- the search must be for a valid objective in pursuit of the ends of criminal justice; and
- the search must not be conducted in an abusive fashion.
However, Cory recognizes that the invasive nature of body searches demands higher standards of justification; interference with a person’s bodily integrity is a breach of a person’s privacy and an affront to human dignity. He finds in s. 487.05, which creates a warrant procedure for the seizure of certain bodily substances for the purposes of DNA testing, a recognition by Parliament of the intrusive nature of seizing bodily samples. The section requires that the police have reasonable and probable grounds, as well as authorization from a judicial officer, before they can make such seizures. Clearly, if this type of invasive search and seizure came within the common law power of search incident to arrest, it would not have been necessary for the government to create a parallel procedure for the police to follow.
With regard to the tissue Stillman discarded, the police may ordinarily collect and test these items without any concern about consent. However, it is a fundamentally different situation when the accused is in custody where they cannot prevent the authorities from taking possession of these items. Cory holds that whether an accused has relinquished any privacy right in items which are discarded would have to be determined on a case by case basis. However, in the case at bar, Stillman had announced through his lawyers that he would not consent to the taking of any samples of his bodily fluids.
McLachlin, in the dissent, agrees with the majority with regard to the bodily samples obtained, but felt there was no meaningful privacy interest in items which are discarded - as much as the cops can pick up a discarded gun and use it as evidence against a killer, so too can they make use of a discarded tissue.
The common law power of search incidental to arrest does not include the ability to seize, without valid statutory authority, bodily samples in the face of a refusal to provide them.