Romaniuk's
Search Warrants Considered

Bodily Material Searches

• "It has often been clearly and forcefully expressed that state interference with a person’s bodily integrity is a breach of a person’s privacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification {para 42}
  [Stillman, W.D.D.; SCC]."
• Authorities can use bodily materials voluntarily provided by an accused (here hair samples plucked out and turned over by the accused)
  [Bowen and Kay; {para 37}; ABQB].
  Note: the accused has to give informed consent to the procedure (that is informed of the reason for the request, understands why the request is being made and understands that they can refuse to provide the sample)
  [Borden, J.R.; SCC].
  Review consent to search basics for more details.
  
  However, forcibly taking bodily samples resulted in the exclusion of evidence, in the following cases:
  
  
  1. hair samples, buccal swabs and teeth impressions
     [Stillman, W.D.D.; {para 50} SCC].
  2. removing hair samples
     [Legere, A.J.; {pages 40 and 41} NBCA, app dism'd; SCC].
  3. where authorities combed the accused's public hair looking for samples
     [Custer, D.A.; MQB].
  
  
• Search warrants can issue for bandages that have been taken off and discarded
  [Kaba, A.M.; QCA; app dism'd; SCC].
• When policing authorities direct a dentist to collect the "bodily fluids" of an accused person, the dentist becomes an agent of the state. "The circumstances of this case raise this question. Is it reasonable for a patient to expect that his dentist will not collaborate with or assist the police in taking possession of blood, saliva or other bodily substances taken from him during dental treatment? I am persuaded that in the unusual circumstances of this case the answer must be yes. It was reasonable for the appellant to expect that his bodily substances would not fall into the hands of the police in that manner {para 39}
  [Dorfer, F.S.; BCCA," app dism'd; SCC].
  Review Agents of the State.
• General warrants cannot be used for the purpose of collecting samples for DNA analysis
  [J. B.; {paras 3 and 4}; NLCA].
• Bodily fluids - review hospitals - blood and hospitals - urine.
• Review statutes for the relevant sections of the Criminal Code.

End of Bodily Material Searches Section

Page PR 35