Published On: Jul 31,2017
The accused person, in Regina v. Dunstan, was convicted of multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime after the police discovered significant amounts of various drugs and approximately $100,000 in cash after responding to an anonymous call reporting a break-in at his house. At trial, his learned criminal lawyers sought to have the evidence of the drugs and cash excluded on the basis that the police had staged the break-in and placed the anonymous call in order to gain access to his house illegally, in breach of his rights under s. 8 of the Charter of Rights and Freedoms to be free from an unreasonable search and seizure. During his application, his criminal defence lawyers requested an order permitting the defence to use a high-quality microphone to record the testimony of Staff Sergeant Cyril Gillis, the police officer Mr. Dunstan alleged was the maker of the anonymous call and instigator of the break-in, for the purpose of enabling the police officer’s voice to be subjected to expert spectrographic voice identification analysis. That application was denied by the Superior Court of Justice in Ontario.
According, defence counsel appealed that decision to the Ontario Court of Appeal on the issue of whether a Superior Court judge has the authority to make such an order. His criminal lawyers posited the following issues. He submitted, that the Superior Court judge erred in:
(a) determining that he lacked the authority to permit the defence to record the evidence of Staff Sergeant Gillis with a high-quality microphone in order to subject his voice to a spectrographic voice identification analysis; and,
(b) holding that he, the appellant, had the burden of proving the illegality of the warrantless entry onto his property.
The Ontario Court of Appeal found that Section 8 Charter rights of rights of an accused should not turn on the particular level of technology utilized by the court. Justice Blair of the Court determine that if it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording, it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony. To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing, the sample is being provided in any event: Regina v. Dunstan, 2017 ONCA 432, at para. 63:
 The rights of an accused should not turn on the particular level of technology utilized by the court, in my view. If it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording – as the Crown acknowledges – it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony. To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing – as the Crown puts it – the sample is being provided in any event.
Based on the above, the Court of Appeal granted the appeal against Mr. Dunstan’s convictions for multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime; and ordered a new trial. The court ordered a new trial. The Appeal Court also stated that as a Superior Court judge, the pre-trial application judge had the discretionary authority to permit the staff sergeant’s testimony to be recorded on a high-quality microphone pursuant to s.136(3) of the Courts of Justice Act, but, if not, then pursuant to the Superior Court’s inherent jurisdiction at paras. 77 to 82.
Finally, the Court stated that:
 The initial entry involving the break-in and the York Regional Police entry are inextricably intertwined in the circumstances. The warrantless entry could not be justified (whatever the reasonable belief of the YRP officers and the circumstances confronting them on their arrival) if it had been triggered by an unlawful ruse carried out by state actors in the first place. The Crown does not dispute this. To hold otherwise – as the appellant points out – would be to permit the police to Charter-proof their conduct from constitutional scrutiny by the simple expedient of having one officer trick another into making a warrantless entry, on the theory that the blamelessness of the “dupe” officer would insulate the conduct from attack. For this reason, in my opinion, the two entries – the allegedly fake break-in and subsequent anonymous phone call, and the responding entry by the York Regional Police – are part of a single integrated chain of events that should not be considered, in silo fashion, as two independent and separate events.
This case demonstrates the necessity of using an experienced criminal defence lawyer, who follows updates in the law, to ensure that all your defences are fully canvassed to obtain optimal results.
For a free initial-30 minute consultation regarding your charges, contact J.S. Patel at 403-585-1960 or 1-888-695-2211.