R v Delaa: Abandonment under s 8
On October 29, the Supreme Court of Canada (“SCC”) rendered its decision to deny leave to appeal in R v Delaa, 2010 ABCA 332 [Delaa], a case concerning the admissibility of covertly obtained “castoff” DNA evidence under the section 8 Charter protection against unreasonable search or seizure.
Two violent sexual assaults occurred in Calgary in September 2003 and March 2004. The police considered the appellant, Wajid Delaa, a strong suspect. While the police hoped to prevent another rape and believed they had sufficient grounds to obtain a warrant for his DNA, they also had information suggesting the appellant was planning to leave Alberta in the immediate future and so did not want to alert him to the investigation.
An undercover operation was therefore devised to obtain castoff evidence that would contain the appellant’s DNA. A police officer posed as a potential purchaser of the appellant’s truck, which he had put up for sale. During a test drive, the two of them stopped at a gas station to check the truck’s fluids. There, another undercover officer solicited participation in a chewing gum survey, to which the appellant agreed. Delaa sampled and then spat out four pieces of gum into Dixie cups provided by this undercover officer, ostensibly to avoid littering. The DNA from the gum ultimately proved to be match that obtained from the two rapes, and the appellant was arrested.
The accused argued at trial that the obtaining of the gum samples constituted an unreasonable search and seizure contrary to sections 7 and 8 of the Charter. Regarding the section 7 claim (which section “provides a broad prohibition against the limitation of legal rights”), the trial judge held that the castoff operation was properly dealt with under section 8 (“an enumerated section set out for the express purpose of dealing with unreasonable search and seizure”). This contrasts with cases of confession or entrapment, which are typically dealt with under section 7. The trial judge did hold, however, that the principles from the SCC (i.e. R v Collins,  1 SCR 265) regarding the collection of confessions were applicable to the degree that trickery or deceit are involved. The Alberta Court of Appeal, summing up the trial court’s conclusion on the issue of trickery:
[W]hile the operation was a trick, it was passive and not an unfair or dirty trick and not a trick that would shock the community. To the contrary, given the circumstances, the trial judge felt the community would have been shocked had the police not resorted to such a tactic to include or exclude the appellant as a suspect.
With this I personally agree, as a ‘member of the community.’ The deceitful nature of the police’s undercover operation is readily and enticingly palpable, but it is not so duplicitous as to unnerve and to place itself beyond the confines of what the community would consider to be the usual course of police activity and undertakings. While certainly ‘trickery,’ the police’s undercover operation to gather castoff DNA evidence is, if anything, admirable and inspiring. An operation such as this is demonstrative of police ingenuity and may be held as an example of the necessary deceit that the police must engage in under certain pressures such as urgency to guard women against the spectre of rape.
That being said, the issue on appeal was whether the trial judge erred in his section 8 analysis, which concluded that there was no violation of the appellant’s section 8 Charter rights in the seizure of his DNA. The appellant disputed the finding that he had no reasonable expectation of privacy in the seized gum based on abandonment. He argued that the gum was not abandoned, but collected by the undercover police officer. The Alberta Court of Appeal, “conclud[ing] that the trial judge made no reversible error” and thus upholding his decision, relied in its reasons on the SCC case of R v Patrick,  1 SCR 579 [Patrick], decided but a month prior. Patrick was covered upon its release at the TheCourt.ca, where it was described as “canonical case in section 8 Charter jurisprudence.” The Court of Appeal outlined the relevant findings of Patrick.
Abandonment is an issue of fact and a finding of abandonment is generally fatal to a claim of reasonable expectation of privacy … . Abandonment is a conclusion inferred from the conduct of the person claiming the s. 8 right, thus consideration of reasonableness (of a claimed expectation of privacy) must relate to the conduct of that person and not to anything done or not done by the police or anyone else involved in the subsequent collection and treatment of the items discarded … . Thus, the focus must be on the conduct of the appellant and whether a reasonable and objective person, considering the totality of the circumstances, would think spitting out the gum into the cup was abandonment.
The appellant argued that there exists a distinction between merely dropping the onto the ground or into a garbage can and the deceit that the police engaged in here.
[The appellant] submits that there was no abandonment here because the action of the undercover officer in holding out a Dixie cup for the gum (i.e. suggesting where the appellant should put the gum when he was finished with it) amounted to state intervention or compulsion. In other words, by disposing of the gum in a Dixie cup held by someone (in this case a police officer) he did not abandon it.
The Court found this distinction to be without merit.
[S]pitting out the gum in the circumstances was, on an objectively reasonable assessment, behaviour entirely consistent with abandonment. This is so regardless of where he spit it out – the ground, the garbage can, an empty ashtray or a Dixie cup. It is the act of spitting it out that evidenced what can only be seen as an unequivocal intention to dispose of it. He was clearly finished with it and had no intention of preserving it. He abandoned it.
… [T]o suggest that the appellant was compelled by state intervention to dispose of his gum is in error. The act of the officer holding out the Dixie cup did not cause the appellant to discard the gum; it merely provided an opportunity for the police to collect it. The actions of the appellant were voluntary. He was free to choose to participate in the gum survey, free to choose whether to discard the gum and where to dispose of it. He was not compelled to put his gum into the cup, although it was suggested that he do so. We agree with the trial judge’s conclusion that the appellant voluntarily discarded the gum as garbage, in a public setting and not in custody. The appellant abandoned his privacy interest.
I agree with the court’s reasoning that this distinction was one of practical urgency, and not such that it would amount to intervention on the part of the state so as to vitiate a finding of abandonment. Further, I have come to realize that the unease regarding this undercover operation that I felt upon my first reading of this decision really goes to the fundamental issues of abandonment decided in Patrick: I tend to prefer Justice Abella’s opinion that, subject to a countervailing state interest, an abandonment of a privacy interest is not incidental to an abandonment of a property interest. This opinion was in the minority; further, considering the reasonable and probable grounds to believe that the accused was a suspect, such a state interest existed here anyway (as Justice Abella found one existed in Patrick.) And so, I find nothing to detract from a belief that the SCC was correct in its decision to deny leave to appeal in Delaa.