£1& ISSUES OF INTEREST

A Journal Devoted to Topical Policing and Legal Issues for Operational Police Officers in British Columbia

Justice Institute of British Columbia - Police Academy

Vol. 48 No. 1

Johnlbst

Deeds Speak
S/Sgt. Paul N. Tinsley, B.A., M.A.
Police Academy, Advanced Program Director

Finally, Issues of Interest is back
after a hiatus of over sixteen months.
In order to re-introduce Issues of Interest, we need to turn to its founder,
Mr. John Post. John started his career in the criminal justice system as
a police officer in June of 1959 with
the Saanich Police Department. He
was later seconded to Camosun College in the formative years of their
Criminology Program, assisting in its
development. In January of 1980 he
became the Director of the JIBC Police Academy, but returned to the
Saanich Police Department in 1983
as the Chief Constable. John retired

THIS ISSUE
Deeds Speak .................... ,............... 1
Violent Crime Linkage ................... 2
Fingerprinting ................................. 4
DNA ................................................ 7

from the Saanich Police Department
in August of 1986, but remained active, working as part-time faculty in the
Criminology Program at Camosun
College.
John's accomplishments were
many and his influence in the policing
community was significant. For example, he assisted with writing the
"Rules Regarding Training, Certification and Registration of Municipal
Constables" (a Regulation attached to
the Police Act of B.C.); he was a
founder and charter member of the
Police Educators' Conference; and
significantly, he founded the Police
Academy publication, Issues of Interest. John wrote and published the first
volume of Issues of Interest in June
of 1981 while he was the Director of
the Police Academy. In that issue, he
wrote the following introduction:
At the Academy we are attempting to tap all sources of information to assure that what we teach
is accurate and cuffent. In the
process we continuously run
across matters which are important to know for the working police officer. Through our courses
we are in contact with a small
segment ofpolice personnel only
and it was decided that an attempt should be made to be of
service by means of a training
bulletin. .... If you have any suggestions for improvement or any
specific topics you would like to
see covered, please let me
know.

John continued to write and edit
evefY volume of Issues of Interest until
he completed Volume 47 in August
of 1995, finally retiring after 14 years
of hard work and dedication to keep-

January 1997

ing the policing community current on
important legal issues. Because of
the important contribution that Issues
of Interest made, the Police Academy
made a commitment to continue its
publication. Although the format and
style may have changed, the Introduction that John wrote in 1981 is still
its mission: a journal devoted to topical policing and legal issues for operational police officers in British Columbia; however, manyofthe"issues"
will also be of interest to police officers and others working in the criminal justice system all across Canada.
One change made to Issues of Interest is the addition of an Advisory
Board, the benefits of which are significant. The Advisory Board is comprised of a broad cross-section of
leaders in the field of policing and
criminal justice, and they will review
and offer advice on all articles submitted for publication. Another
change is that articles will be written
by diverse authors who have special
knowledge of particular "issues of interest" to the policing community (see
back page for submission procedures). As a result, we hope to continue the tradition of excellence
started by John.
At this point I wish this introduction and tribute to John could end, but
life had prepared another ending. On
November 30, 1996, John Post
passed away, survived by three children, Joanne, Margaret, and John,
their spouses, and their grandchildren. John's wife of over forty years,
Gonda, had passed away earlier in
1995. Upon hearing of John's passing, Mr. Goble, President of the Justice Institute of British Columbia and
friend, wrote to the staff of the JIBC,
"John will be missed by his family and
friends and will best be remembered

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for his wonderful smile, sense of humour and caring and supportive manner."
When John's wife Gonda passed
away, he wrote an especially moving
poem in remembrance of her, which
is also a fitting memorial to him:
... dying was a gentle fading
like light slips from the sky at night
and Gonda went in reverend silence
from this flawed life to perfect light.
John Post
Issues of Interest, Volume 48, is
dedicated to the memory of Mr. John
Post.

An Introduction to
Violent Crime Linkage
Corporal Yme ("Emo") SMID, RCMP
VICLAS Analyst- B.C./Yukon Region
"E" Division HQ, Vancouver, B.C.

The purpose of this article is to
introduce a new and developing
methodology for identifying serial sex
offenders and solving what, at first
glance, or after a prolonged investigation, appear to be unsolvable homi2

cide or sex crimes. Although some
police officers may have heard of the
Violent Crime Linkage Analysis System (ViCLAS}, there are still many
investigators that are unaware of
ViCLAS, have not fully come to appreciate this tool as an investigational
aid, or the potential it possesses to
provide suspects at any stage of an
investigation. Other officers are only
aware of ViCLAS because of the importance being placed on completing and submitting the ViCLAS Crime
Analysis Report booklets. Although
completing these booklets may appear daunting or a "waste of time,"
this article should convince investigators of the importance of reporting
data. The power of this investigational
aid, like any technology, is only beginning to be appreciated.

History1
In the early 1980's the public and
police in the province of British Columbia were exposed to an unprecedented number of grisly serial murders committed by one person. That
person was Clifford Olson, and the
investigational and political fallout
that followed these offences formed
the catalyst for the development of
the first computerized violent crime
linkage analysis system in the province, the ATMS/STAIRS SexCri database. This program represented
the first generation of an attempt to
construct a computerized case linkage analysis system in the province.
Due to a lack of adequate computer
database technology available at the
time, this system proved to be unsuccessful.
In 1990, the SexCri database was
shutdown and a newly formed Violent Crime Unit, with three regular
members of the RCMP and one civilian employee, was given the task
of creating a new computer based
case linkage analysis system primarily for sexual offences and for tracking homicides. This task involved research and audits of other case linkage analysis systems that were already in use in North America, taking the strengths of those systems
and implementing them in a new da-

tabase. Some of the weaknesses
identified in other linkage programs,
that had to be avoided, included the
lack of a complete and consistent reporting method and the failure to include attempted offences in the database. A prototype system called
MACROS (Major Crime Organizational System} was designed and
ready for testing by the spring of 1991.
After a year of data entries on the
MACROS database, it was used successfully to identify case linkages for
a field investigation, which confirmed
the usefulness of the newly created
database.
In the summer of 1992, based on
the success of the MACROS database, the RCMP Violent Crime Analysis Section, at RCMP Headquarters
in Ottawa, took the initiative to design and build a national case linkage analysis system. Two computer
programmers were hired and given
the task of developing the new national database using more advanced
and powerful database software. The
result, after collaboration with the
newly formed ViCLAS Section in Vancouver, is the ViCLAS program which
is in use today. The ViCLAS program
and programmers are not standing
still as a third generation ViCLAS program is currently under development.
The new ViCLAS program will be
more sophisticated and will increase
the speed of performance, efficiently
deal with more data, incorporate new
analytical tools, and communicate
with other police systems.
The ViCLAS system is national in
scope as all police agencies in
Canada are subscribers. There are 11
ViCLAS regional sites in Canada representing every province and territory.
This program is also becoming international in scope in that several other
countries are now using ViCLAS for
violent crime case linkage. For example, several U.S. states have
adopted the ViCLAS system and currently Australia, Belgium, Holland,
and Great Britain are using ViCLAS.
Several other European countries are
also interested in this technology and
these countries are arguing for the implementation of ViCLAS as a man-

datory violent crime case linkage
analysis system for the entire European Community.

How Does It Work? 2
There are 263 questions that are
set out in the ViCLAS Crime Analysis
Report booklet which allow ViCLAS
analysts to search and compare
cases in a variety of areas such as
offender description, geographical location, method of oper~tiqn •. vehicle
description, offender and\lictim,yerbal comm~nications, the sequence of
sexual acts committed, approaches,
weapons used and other characteristics of the interaction. This data is
important in that it also provides analysts with a behavioural profile of the
offender. This process extends well
beyond simple assailant descriptions,
since an offender description is often
not sufficient by itself for successful
case linkages. In addition, offender
descriptions are usually not available
in sexual homicides or cases where
the victim has not seen the offender.
Descriptions are also distorted by factors such as darkness, victim fear and
offender strategies in the form of disguises. It is vitally important to track
how an offender commits his or her
offenses because methods or patterns can not only identify a series of
related offences it may also enable
investigators to link offences where
certain features changed because of
offender experience or tactics. The
utilization of a broad sample of characteristics from the information contained in the booklets is of particular
importance for comparison purposes
because it can ultimately reveal the
unchangeable behavioural signature
or fantasy patterns that usually drive
an offender. ViCLAS analysts do not
limit their analysis to information on
ViCLAS, but will also rely on offender
information from other sources {e.g.
CPIC and other agency data bases).
If a linkage is identified the ViCLAS
Section will contact the respective
agencies.
The timely and accurate completion of the ViCLAS booklets for all
sexual assaults and homicides is critical to successful case linkage. For

example, research has shown that
certain sex offenders have an offending cycle in which they will commit
several offences within a very short
period of time {e.g. every 7 - 15 days)
and not all of the offences are committed in the same geographical
area. 3 Research has also determined
that there is a dramatic decrease in
the potential to link cases the lower
the reporting rate of sexual assault
data (i.e. 90% reporting = 81% potential, 30% reporting= 9% potential,
5% reporting = .25% potential}. 4
ViCLAS is also valuable in quickly
identifying specific homicide offences
where investigators receive important
information but details such as the
victim's name, location of offence, jurisdiction or suspect information is
unknown. lnvestigatively, the advantages of being able to access sex offences and homicide data across
Canada is self-evident.
As an example of the importance
that ViCLAS technology can have for
investigators and departments, the
following is an example of the first
confirmed linkage by ViCLAS when
it was in the MACROS prototype
stage. On April 29, 1992 one of the
ViCLAS analysts received a completed MACROS report on a rape
case which had occurred in Maple
Ridge, B.C. on April 19, 1992. The
form indicated the name and particulars of the accused. After entering
the new data from the form, further
analysis revealed an unsolved rape
case which had occurred in Maple
Ridge on January 27, 1992 and both
cases showed the following similarities: first, both victims were close in
age (i.e. 15 and 16 years); second,
the physical description and age of
the offender in both cases matched
the accused; third, the victims in both
cases were walking alone along a
residential street at night; fourth, the
offender specifically told both victims
prior to vaginal intercourse, "I won't
come in you"; and fifth, the assault
scenes were within three blocks of
each other.
Based on this information, the
analyst felt strongly that the accused
was also responsible for the earlier

unsolved case. When the analyst
called to advise the investigator of the
potential linkage the investigator immediately asked, "How did you
know?". The investigator, it tu med
out, was already considering the accused as a suspect and was investigating the linkage. The final result is
the suspect was charged and convicted of both sexual assaults. The
offender was sentenced to four years
in gaol and a five year firearms prohibition. Although this linkage occurred in the same jurisdiction, the
potential to identify and link offences
and suspects for crimes that may
occur days, months, or years apart,
in the same jurisdiction or a multitude
of jurisdictions, is evident. ViCLAS
is not restricted by jurisdictional, radio, computer, temporal or departmental boundaries and provides an
invaluable
tool
to
bridge
investigational restrictions that currently exist.
ViCLAS is now a provincial policing initiative which has participation
from all police agencies in B.C. and
the Yukon. The ViCLAS Section is
currently situated at the R.C.M.P. "E"
Division HQ in Vancouver and is comprised of RCMP, Vancouver Police
Department and civilian personnel.
Please feel free to call us if you have
any questions, suggestion or ideas
about ViCLAS ((604) 264-2248).

Endnotes
1

ViCLAS Section Newsletter, "A Brief Introduction to and Success Stories ofViCLAS (Violent
Crime Linkage Analysis System)" 1:1 (1995)
ViCLAS News 1.
2 For an excellent introduction to profiling, see
National Center For The Analysis of Violent
Crime, Criminal Investigative Analysis- Sexual
Homicide (U.S. Dept. of Justice: FBI, 1990),
Robert R. Hazelwood and Ann Wolbert Burgess,
"The Behavioral-Oriented [sic] Interview of Rape
Victims: The Key to Profiling" and Robert R.
Hazelwood, "Analyzing the Rape and Profiling
the Offender" in Robert R. Hazelwood and Ann
Wolbert Burgess, eds., Practical Aspects of
Rape Investigation-A Multidisciplinary Approach
(CRC Press, 1993), chps. 7 and 8.
3
Ibid., Hazelwood, chp. 8; see also John E.
Douglas, Robert K. Ressler, Ann W. Burgess
and Carol R. Hartman, "Criminal Profiling from
Crime Scene Analysis" in National Center for the
Analysis of Violent Crime, Criminal Investigative
Analysis - Sexual Homicide (U.S. Dept. of Justice: FBI, 1990)at7.

3

•This data arises from research undertaken by
Detective Inspector K. Rossmo, Ph.D. of the
Vancouver City Police Department, Vancouver,
BC,canada.

Fingerprinting the
Accused: Legal Shades
of Gray
Constable Robert Kroeker, B.A., LLB.
Saanich Police Department

The British Columbia Supreme
Court has recently ruled that the
police can no longer take the
fingerprints of a person in custody
prior to a formal charge. The decision
i1 R. v. Connors 1 and recent
amendments to the Identification of
Criminals Acfl- will significantly impact
on the ability of the police to take
fingerprints. In fact, the enforcement
ability of police agencies, recent
government justice initiatives, and
many prosecutions may now be in
jeopardy. This article will detail the
relevant changes to the law in relation
to the taking of fingerprints, some of
the expected effects of those
changes, and the ability of the police
to fingerprint accused persons
outside of the /CA.

The Connors Case
Corbett Connors was arrested for
having care or control of a motor
vehicle while impaired and for
possession of stolen property on
October 30, 1993.
He was
transported
to
the
RCMP
Detachment in Richmond where he
provided two samples of his breath.3
Connors was fingerprinted and
photographed and then released on
a promise to appear. Connors was not
formally charged until an information
was sworn on December 1, 1993.
Connors eventually pied guilty to the
impaired charge and his fingerprints
were forwarded to the RCMP in
Ottawa.
The prints were
subsequently matched to fingerprints
left by a suspect in a robbery that
occurred in Richmond on July 15,
1992, some 15 % months prior to the
events of October, 1993. Connors
was charged with the robbery.

4

At trial, Connors argued that the
comparison fingerprint evidence was
inadmissible because the fingerprints
taken in relation to the impaired
charge were illegally obtained. He
submitted that for the police to have
authority to fingerprint him under the
/CA he had to have been in lawful
custody and charged with an
indictable offence at the time his
fingerprints were taken. Mr. Justice
Scarth concluded that "... the taking of
Mr. Connors' fingerprints on October
30, 1993 was not authorized by the
Identification of Criminals Acf'4 and
further, "... the accused was forced
whilst in custody to provide
incriminating evidence under the
guise of the purported exercise of a
statutory power and in the
circumstances where it would not exist
apart from the violation of his right
under s. 8 of the Charter. " 5 The
fingerprint evidence was excluded, the
Crown called no further evidence, and
the robbery charge was dismissed.
The central issue in Connors was
the interpretation of s. 2( 1) of the /CA:
2.( 1) Any person who is in lawful
custody, charged with, or under
conviction of, an indictable
offence, ... may be subjected, by
or under the direction of those in
whose custody the person is, to
... (b) any measurements,
processes or operations
sanctioned by the Governor in
Council that have the same
object as the measurements,
processes and operations
practised under the Bertillon
Signaletic System.
The focus of the Court was on the
interpretation of the phrase "Any
person who is in lawful custody,
charged with, or under conviction of,
an indictable offence ... "
The
presence of the comma after "lawful
custody" left both a disjunctive and
conjunctive interpretation open. If
read disjunctively, the /CA authorizes
the fingerprinting of any person who
is: 1) in lawful custody; or 2) charged
with an indictable offence; or3) under
conviction of an indictable offence.

The police have traditionally relied
upon the disjunctive interpretation. It
has been common practice to
fingerprint persons arrested for an
indictable offence (which includes
hybrid/dual offences6 ) prior to issuing
a release document, swearing an
information or any appearance
before a justice where the accused
is held in custody. The Court in
Connors, however, found that the
phrase is to be read conjunctively: in
lawful custody and either charged
with or under conviction of an
indictable offence. At present, the
decision in Connors and the
application of that decision in two
subsequent cases 7 has made clear
that this practice is now improper.
On the other hand, Connors does
not seem to impact on the ability of
the police to require accused persons
to appear for fingerprinting and
photographs pursuar:it to a lawfully
issued appearance notice, promise
to appear, recognizance or
summons. In such cases, persons
appearing for the purpose of
fingerprinting are deemed, under the
CC, to be in lawful custody charged
with an indictable offence. 8 Problems
with fingerprinting only arise where
an accused person is fingerprinted
prior to being issued a release
document, or where the person is
fingerprinted, prior to a charge being
laid, while being held in custody
pending a bail hearing.
Connors is presently under appeal
and is scheduled to be heard in mid1997. Unfortunately, however, the
issue over the interpretation of s. 2( 1)
is now mostly academic, since it was
amended in 1992 and again in 1996. 9
The ambiguous comma has been
removed and the section now reads:
2. (1) The following persons
may be fingerprinted or
photographed or subjected to
such other measurements ,
processes and operations
having the object of identifying
persons as are approved by
order of the Governor in
Council:
(a) any person who is in lawful

custody charged with or
convicted of
(i) an indictable offence, other
than an offence that is
designated as a
contravention under the
Contraventions Act in
respect of which the Attorney
General, within the meaning
of that Act, has made an
election under section 50 of
that Act, or...
(c) any person alleged to have
committed an indictable
offence, other than an
offence that is designated as
a contravention under the
Contraventions Act in
respect of which the Attorney
General, within the meaning
of that Act, has made an
election under section 50 of
that Act, who is required
pursuant to subsection
501 (3) or 509(5) of the
Criminal Code to appear for
the purposes of this Act by
an appearance notice,
promise to appear,
recognizance or summons
[emphasis added].

It is now also clear legislatively
that to fingerprint an accused person
under the /CA, the person must be
both in lawful custody and charged
with or under conviction of an
indictable offence.
However,
paragraph (c) makes it permissible to
take fingerprints from a person that
attends for the purposes of the /CA
under certain release documents.
The problem though is thats. 145(5)
of the CC requires an appearance
notice, promise to appear or
recognizance be "confirmed" by a
justice (i.e. an information is laid 10 )
before any charges for failing to
appear for fingerprinting can be
pursued. Confirmation must occur
before the date set for fingerprinting,
otherwise there is no offence. 11 In
the case of hybrid/dual offences, if the
Crown has "elected" to proceed
summarily by the time the release
document is confirmed or before the
date set for fingerprinting there is no

longer any authority to obtain the
fingerprints.

Common Law Authority
to Obtain Fingerprints
Enforcement agencies have relied
almost exclusively on the legislative
authority granted by the /CA to
fingerprint persons arrested for
criminal offences. However, the right
to fingerprint suspected criminals also
exists at common law. 12 This
common law power was addressed
directly in R. v. Buckingham and
Vickers 13 by the B.C. Supreme Court.
In that case Robertson, J. held that,
not only did the police possess the
right at common law to take the
fingerprints of an offender, but in
addition " ... the Identification of
Criminals Act was passed to extend
the common law right, not to cut it
down."14 The authority to fingerprint
at common law has also been tacitly
acknowledged by both the B.C. Court
of Appeal, 15 and the Supreme Court
of Canada. Mr. Justice La Forest,
writing for a unanimous bench in R.
v. Beare, 16 concluded that " ... the
great weight of authority in this
country is that custodial fingerprinting
is justifiable at common law ... ". 17 He
stated further:
But it seems to me the common
law experience strongly
supports the view that subjecting
a person to being fingerprinted
in those circumstances does not
violate fundamental justice.
While the common law is, of
course, not determinative in
assessing whether a particular
practice violates a principle of
fundamental justice, it is
certainly one of the major
repositories of the basic tenets
of our legal system ....
The common law experience
reveals that the vast majority of
judges who have had to consider
the matter have not found
custodial
fingerprinting
fundamentally unfair. Indeed,
they were prepared to accept the
procedure as permissible at

common law and as being
similar in principle to the
authority to physically restrain a
person in custody and to
physically
search
that
person ... 18 •
While it is true that the law is not
settled on this point, 19 there seems to
be fairly strong authority to suggest
that the police do possess the right
at common law to fingerprint those
persons arrested for indictable
offences (including hybrid offences).
Further, the common law does not
appear to require that a person be
formally charged, as is required under
the /CA, prior to fingerprints being
taken. Further research is required
on the common law authority but it
still presents a potential option to
alleviate the current situation.

The Impact of Connors
and the /CA Amendments
In the aftermath of Connors and
the amendments to the /CA, it
appears that an accused person may
be fingerprinted in the following
circumstances:
1. Under a lawfully issued
appearance notice, promise
to appear, recognizance or
summons for an indictable or
hybrid/dual offence. Since
ss. 501 (3) and 509(5) of the
CC deem a person that
appears for the purposes of
the /CA to be "in lawful
custody charged with an
indictable offence" it is
possible to have the time for
release and appearance for
fingerprints coincide, which
will permit officers to
fingerprint the person as in
the past. In the case of an
appearance notice or promise
to appear, it is crucial that the
person be issued the release
document prior to being
fingerprinted. If the release
document sets out a future
date for fingerprinting, s.
145(5) of the CC requires that

5

the release document be
"confirmed" by a justice
before a failure to appear
charge can be laid.
2. Where an accused is held in
custody pending a bail
hearing, and an information
is sworn for an indictable
offence prior to the hearing,
the accused may be
fingerprinted pursuant to the
/CA.
3. Where an accused is held in
custody and it is impractical
to lay an information prior to
the bail hearing, the Crown,
at the hearing, may ask the
Court to require the accused
to attend for fingerprints and
photographs as a condition of
release. This option will rely
solely on the discretion of the
Crown and the Court. If the
Crown elects to proceed by
way of summary conviction at
the bail hearing the /CA will
no longer have any
application and a Court is
unlikely to require an accused
to appear for fingerprints.
4. An accused person may be
fingerprinted pursuant to the
/CA in any circumstances
where the accused is in lawful
custody and charged with or
convicted of an indictable
offence, subject to the
exceptions listed in the Act.
5. An accused person may be
fingerprinted at any time with
that person's informed
consent. 20
The present legislative scheme
and the decision in Connors have the
potential for some interesting and
anomalous effects. For instance, a
person accused of assaulting a
stranger will, in most cases, be
released on an appearance notice
and can be compelled to appear for
fingerprints and photographs. If
convicted he or she will have a
criminal record. However, a person
charged with "domestic" assault is
likely to be held in custody because
of the potential for re-occurrence and
6

the Province's direction regarding
violence against women in
relationships. 21 This second person
cannot be fingerprinted unless the
police lay an information prior to the
accused's bail hearing. This is
unlikely to happen in British Columbia
as the right of the police to lay a
formal charge is restricted by
provincial policy in that charges must
be approved by Crown Counsel prior
to being swom. 22 If the Crown elects
to proceed by summary conviction,
or if the Court refuses to require the
accused to attend for fingerprints as
a condition of bail, the accused
cannot be fingerprinted and will not
have a criminal record when
convicted. 23
Unfortunately, this second
scenario has serious implications for
the Province's Violence Against
Women in Relationships Policy. 24
Where criminal convictions are
unsupported by fingerprints they
cannot be entered on police criminal
record data banks. This will greatly
reduce the ability of the police to
identify repeat offenders effectively
and accurately. Without the ability
to check for, or prove, a criminal
record, the police will be unable to
assess properly the threat a victim
faces in a situation involving domestic
violence. Further, the Crown and
courts often rely on police records of
criminal convictions in determining
bail conditions and sentence upon
conviction for domestic violence.
Without this information, it is
conceivable that a significant number
of repeat offenders will be treated as
though they are appearing before the
court for the very first time.
The change in the law with respect
to fingerprinting is also apt to have a
deleterious effect on the campaign
against drinking and driving.
Provisions in the CC that provide for
harsher punishment for those
convicted of successive drinking and
driving offences can have little or no
effect if an offender's criminal history
is not readily accessible to police,
prosecutors and the courts. Similarly,
the inability to effectively prove
certain convictions will have an

adverse impact on the Province's
policy regarding the screening,
application and revocation process
for firearms and related certificates,
as well as the federal governments
proposed firearms legislation. These
are but three of the more obvious
and worrisome consequences arising
from the changes to the /CA. Given
the potential consequences to these
initiatives alone, it is clear that Crown
Counsel will have to be more
circumspect, diligent and formal in the
election process for hybrid/dual
offences. It is suspected that it will
be some time before the full impact
of the amendments is realized.
The effects of the decision in
Connors and the amendments to the
/CA may be offset somewhat by
reliance on the deeming authority in
the CC to fingerprint subjects
coincident with release, and perhaps
the right of the police at common law
to fifigerprint suspects.
The
government must realize that
restricting fingerprinting to that time
when a formal information has been
laid not only increases operational
and administrative costs for the entire
criminal justice system, it also
increases the potential for dangerous
individuals to escape scrutiny. In the
interim, it is important that police
managers ensure that their personnel
are aware of the changes in the law.
Illegally obtained fingerprints may not
only have a detrimental affect on the
case in which they were obtained, but
will also jeopardize any future case
relying on that fingerprint evidence.
Endnotes
1

(15January1996), VancouverCC941349
(8.C.S.C.), ("Connors").
2 R.S.C. 1985, c. 1-1 ("/CA").
3 Pursuant to s. 254 of the Criminal Code,
R.S.C. 1985, c. C-46 (as amended) (°CCj.
•Supra, note 1 at 23.
5 Ibid., at 27.
6
Pursuantto s. 34(1 )(a) of the Interpretation
Act, R.S.C. 1985, c. 1-21 (as amended),
"indictable offence" includes all hybrid offences
until the Crown elects to proceed by way of
summary conviction.
7
R. v. Lewis (5 June 1996), Victoria 78596
(B.C.S.C) and R. v. Mattu (25October1996),
NewWestminsterX043569(8.C.S.C.)
8 Sections 501 (3) and 509(5).
9 An Act to Amend the Contraventions Act

and to Make Consequential Amendments to
Other Acts, S.C. 1996, c. 7, and An Act
Respecting Contraventions of Federal
Enactments, S.C. 1992, c. 47
10
Sees. 508 of the CC.
11
See, R v. Gauthier(1983), 35 C.R. (3d) 159
(Que. C.A.).
12
Adairv. McGarry, [1933] S.L.T. 482 (H.C.).
13
(1943), 86 C.C.C. 76, [1946] 1W.W.R. 425
(cited to C.C.C.).
14
Ibid. at 78.
15
Brown v. Baugh and Williams (1982), 70
C.C.C. (2d) 71, [1982] 5 W.W.R. 644, 38
B.C.L.R. 1; affd. [1984] 1S.C.R.192, 11
C.C.C . (3d) 1, [1984] 3 W.W.R. 5n.
16
[1988] 2 S.C.R. 387, 45 C.C.C. (3d) 57, 55
D.L.R. (4th) 481 (cited to C.C.C.).
17
Ibid., at 71.
18
Ibid., at 72.
19
See, Dumbellv. Roberts, [1941] 1 All E.R.
326 (C.A.) and R. v. A.N. (1978), 39 C.C.C.
(2d) 329 (B.C.C.A.)which question the
common law authority.
20
Those relying on a consent search have an
onerous burden. See, generallyR. v. Wills
(1992), 70 C.C.C. (3d)529 (Ont. C.A.)andR.
v. Williams (1992), 76 C.C.C. (3d) 385
(B.C.S.C.); affd. (1995), 98 C.C.C. (3d) 176
(B.C.C.A.). See also, R. v. Head(1994), 52
B.C.A.C. 121 (B.C.C.A.)foramorelimited
consent threshold test.
21
See, British Columbia, Ministry of Attorney
General, Violence Against Women In Relationships Policy(Victoria: Queen's Printer, August
1996).
22
See, British Columbia, Ministry of Attorney
General, Criminal Justice Branch, Crown
Counsel Policy Manual.
23 Convictions not supported byfingerprints
are not listed on CPIC. The alternative is to
search each court registry.
24
Supra, note 21.

Warrants to Obtain
DNA For Analysis
Cpl. Stu Wyatt, B.A. (Saanich Police) (JIBC)
Cpl. Frank Ciaccia (New West. Police)

Deoxyribonucleic acid (DNA)
analysis has potential application in a
multitude of disciplines and is now encompassed within legislation proving
to be a powerful investigative tool for
the police 1 • Bill C-104 became part of
the Criminal Code2 on July 13, 1995,
and provides specific warrant provisions that enable the police to take a
"known" biological sample from an
identified suspect. As noted by
Chayka, Gulliver and MacDougall,
"Unlike traditional analysis of hair, skin
and fibre, which can only highlight
similarities in external characteristics,
DNA typing compares the genetic content of the known and unknown sam-

pies." 3 Like fingerprints, each indi~
vidual human possesses a unique
genetic signature. The DNA of any
indMdual is identical whether extracted
from root sheath hair samples, white
blood cells, or a semen specimen.
The unique genetic signature and
identical DNA structure within all tissue of the same body provide the basis for DNA profiling. Of particular importance is that "The use of the new
procedures should considerably reduce the weight of eyewitness testimony, which many believe is responsible for more miscarriages of justice
than any other single type of evidence. "4

Collecting Samples
Specific statutory procedures to
obtain a bodily substance for DNA
analysis are now available for crimes
identified as "designated" offences in
s. 487 .04 of the CC. 5 Designated offences encompass a variety of property, violence and sexual offences.
Section 487.06 authorizes a peace
officer (or person under his or her direction) acting under authority of a
warrant, to obtain and seize a bodily
substance from an identified individual by three specific means: first,
plucking hairs; second, a buccal
swab; and third, blood by pricking the
finger with a sterilized lancet. The
wording of the legislation is problematic, however, in that it seems to indicate that only one of the three methods may be utilized to obtain a single
sample. It is our understanding that
Crown Counsel is recommending that
warrants specifically allow the executing officer to utilize any one of the
three methods permitted. While
blood samples are the best source for
comparison purposes, a hemophiliac,
for example, would have legitimate
concerns about the taking of a blood
sample. If confronted with such a
situation the officer would then .have
an option of taking a biological sample by one of the other means provided in the warrant.
There are a number of advantages
and disadvantages associated with
each of the three methods of collection. 6 In relation to blood samples, a

mere five to six drops of blood on a
sterile cloth can be obtained by pricking a finger with a sterile lancet. This
form of sample provides an ideal
source of high quality material suitable for all types of DNA analysis.
There are no apparent disadvantages
associated with this form of sample.
Plucked hairs, properly collected (i.e.
with root sheath attached), also provide an excellent source of high quality DNA for analysis. The sample,
whether collected or located at the
scene, must have root sheath cell
material attached, otherwise it is of
little value for DNA analysis. A sufficient sample usually consists of 1015 hairs with good root sheaths. Section 487.06(1 )(b) specifically provides
for the taking of buccal swab samples by swabbing the lips, tongue and
the inside of the cheeks to collect
epithelial cells, but no provision is
made for the taking of saliva samples. Buccal swab samples, when
properly collected and of sufficient
quantity, can provide high quality
DNA for analysis. However, samples
from the mouth can be contaminated
with residual food particles in varying stages of decomposition, which
makes analysis much more complicated. Unwilling donors, in order to
avoid donations, can also dip the
swab in a pool of saliva rather than
providing the critical epithelial cells.
As a result, buccal swab samples
should not be self-collected.
One of the most important tasks
for investigators is the proper collecting and handling of the DNA sample
once it has been obtained. As noted
in the FBI Guidelines on DNA:
If DNA evidence is not properly documented prior to collection, its origin can be questioned. If it is not properly collected, its biological activity may
be lost. If it is not properly packaged, cross contamination
might occur, and if the DNA evidence is not properly preserved
decomposition and deterioration
may well occur. 7
At present two basic techniques

7

exist for DNA analysis. The first is Restriction Fragment Length Polymorphism (RFLP). The second is
Polymerase Chain Reaction Amplification (PCR). Using RFLP analysis,
a dime-sized blood stain may yield
sufficient extracted DNA (between
40-50 nanograms) for comparison. 8
In fact, 99.999% of the population
may be excluded as the source of the
sample by use of RFLP analysis. 9
PCR, however, allows analysis with
smaller samples (between 4-5
nanograms) such as a trace of saliva
on a licked envelope flap. 10 With the
PCR method 99% of the population
may be excluded as the source of a
sample. 11 RFLP is the preferred technique of analysis unless the quantity
or quality of the DNA in the sample is
too limited.

Legal lssues12
It is recommended that investigators review the DNA provisions in
detail. Individuals that are the subject of a warrant to provide a biological sample are clearly detained for the
purposes of s. 10 of the Charter. Section 487.07(2) (a) and (b), however,
provide that a person may be detained for a reasonable period for the
purposes of executing the warrant
and may be required to accompany
the peace officer who executes the
warrant for that purpose. Pursuant
to s. 10 (b) of the Charter, investigators must inform an individual of the
reasons for their detention, their right
to counsel and afford a reasonable
opportunity to exercise the right to
counsel prior to execution of the warrant.
Biological samples can be obtained with the consent of an individual, but the consent must meet the
requirements set out in R. v. Head. 13
Mr. Justice Donald, speaking on behalf of the Court in the Head case,
held that it is necessary to determine:
first, did the accused give his consent
voluntarily; and second was the accused aware of the consequences. 14
In addition, abandoned or discarded biological samples may also
provide a source of DNA. In R. v.
Love, 15 DNA testing was conducted

8

on a mucous laden tissue which the
subject had used to blow his nose and
then discarded in a waste basket. In
this case the accused was investigated by the police for a 1990 murder of a taxi driver. When requested,
the accused refused to provide voluntary samples to the police. Two
officers then be-friended the accused
and spent time with him between July
and August, 1992. In August, when
the three were on a trip, they checked
into a motel, the accused blew his
nose, and threw the mucous covered
tissue into the garbage. The police
determined that the garbage can had
a fresh liner and seized the tissue
without a warrant. The accused was
charged and convicted on this evidence. On appeal, the accused argued that the evidence was inadmissible because it was obtained as a
result of an unreasonable search and
seizure. The appeal was dismissed,
with the Court finding that even though
the officer's involvement with the accused was a prolonged invasion of his
privacy, the actual seizure of the tissue did not involve a Charter breach
since it was abandoned. In the case
of abandoned or discarded samples,
the accused must have no reasonable expectation of privacy if the sample is to be considered truly "abandoned."
It is anticipated that, like conventional s. 487 CC warrants, defence
concerns will arise in relation to the
quality and content of the information prepared to obtain the warrant.
Therefore, it is recommended that
investigators thoroughly and comprehensively set out the grounds for requesting a warrant to obtain a DNA
sample.
Endnotes
1. For an excellent overview see, Jane M. Allain
(Research Branch, Library of Parliament, Law
and Government Division), Background Paper,
Forensic DNA Testing: Legal Background To
Bil/C-104 (Min. of Supply and Services, 1995).
2. R.S.C. 1985, c. C46 (as amended) ("CCj.
3 . G.M . Chayko, E.D . Gulliver and D .V.
MacDougall, Forensic Evidence in Canada
(Csnada Law Book Inc., 1991-) at 302.
4. Lome T. Kirby, DNA Fingerprinting (New
York: Stockton Press, 1990) at xv.
5. See, Fran Maclean, "The DNA Warrant: An

Overview of Bill C-104" in Charter and Evidence:
Criminal Law Update '96 (Continuing Legal Education Society of BC, 1996) at 3.2.01 to 3.2.10
for an overview of the statutory provisions.
6. Pamela Newall (Research Scientist) Minisby of the Solicitor General and Correctional Services, Province of Ontario, Centre of Forensic
Sciences, Comparison Samples for Forensic
DNA Analysis (n.d.) at 2.
7. United States Department of Justice, Federal Bureau of Investigation Guidelines for the
Collection and Preservation of DNA Evidence.
(Forensic Science Research and Training, Ctr.,
FBI Laboratory, FBI Academy, Quantico, VA:.
n.d.).
8. Supra, note 6 at 1.
9. Ibid.
10. Ibid.
11. Ibid.
12. For more detailed discussion on the legal
issues surrounding DNA, see, supra, notes 1
and 5, and Derrill W. Prevett, "Forensic DNA
Evidence - A Primer" in Charter and Evidence:
Criminal Law Update '96 (Continuing Legal Education Society of BC, 1996) at 3.1.
13. (1994), 52 B.C.A.C. 121, 86 WAC. 121
(B.C.CA).
14. The Court did not adopt the six point consent crtteria set out in R. v. Wi//s(1992), 12C.R.
(4th) 58, 70 C.C.C. (3d) 529 (Ont. C.A.).
15. R. v. Love, (8 April 1994) unreported (Alta.

Q.B.).

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