International Law

R. v. Colson

As framed by the appellant, this appeal raises one issue only: what is the standard of proof to be applied in determining whether an accused has “voluntarily” provided a bodily sample for purposes of DNA testing? Is it proof on a balance of probabilities, employing Charter principles, as applied by the trial judge in the circumstances of this case? Or is it proof beyond a reasonable doubt, as required by the common law confessions rule, as the appellant contends it should be?

Held: The standard is proof on a balance of probabilities (the so-called Wills test). Why? Well, the appellant (who was convicted of first-degree murder on the basis of a DNA sample earlier given to the police, relating to another matter) did make an argument that had a “certain analytical attraction.” But . . . reliability is (still) the core underpinning of the confessions rule, and in the case of bodily samples used for DNA testing reliability is not a factor. Which is why, under the common law, the confessions rule has consistently been confined to statements and not extended to the taking of bodily samples. And then, even analytically the argument starts to fall apart:

I see no justification for creating a new common law right ? infused, the argument goes, by the Charter tool of equating bodily samples and statements as “conscriptive evidence” and by the now Charter-guaranteed fundamental principles of trial fairness and protection against self-incrimination ? that would provide greater protection to an accused than the Charter safeguards he agrees have been properly applied in the circumstances of this case. The appellant would derive greater protection because, under the proposed common law principle, the bodily samples would be automatically excluded from evidence unless the Crown could demonstrate a voluntary and informed waiver or consent beyond a reasonable doubt. Under the Charter, on the other hand, the Wills waiver need only be established by the Crown on a balance of probabilities. In short, the appellant invokes the Charter, and Charter-related values, to push the common law to the desired point, then invokes the common law (devoid of the Charter) to achieve the more advantageous legal result that he seeks. This approach makes no sense, particularly where, as I have noted above, there is no need for it, given the well-developed Charter jurisprudence respecting trial fairness and its included values in the context of improperly obtained evidence.

Full post as published by Criminal Review on January 15, 2008 (boomark / email).