At the beginning of April, Nathan Penner was sentenced on invitation to sexual touching and obstructing justice charges involving a 14-year-old girl. At the hearing, the Crown outlined the reason for the obstruction charge was that Penner assumed a false identity on social media to try to get the victim to drop the charges.
This is one of the misconceptions of Canadian justice that comes from watching too much American TV. In Canada, the prosecution does not need a complainant to go ahead with charges. In fact, some provinces have strict regulations that virtually require the Crown to proceed regardless of the victim’s wishes.
Of course, that doesn’t necessarily mean that a victim cannot be intimidated. If, for example, the prosecution’s entire case is based on the testimony of the victim and she doesn’t show up in court, the evidence may be too weak to obtain a conviction.
I saw a case like this once, in which a woman pleaded guilty of contempt and accepted a criminal record rather than testify against a drug dealer.
Another misconception many people have about Canadian justice derived from American television is the idea that DNA is a crime-solving tool. I have never been able to watch any of the CSI series because, while I get reality doesn’t necessarily make good TV, those programs are so far removed from reality that there is not a single connection aside from the fact that DNA exists.
The first and most obvious contradiction is that the crime scene investigators do everything from analyzing the crime scene to processing the evidence to shooting the bad guy. This is far from the way it works. The people who work in the labs are generally civilians. They do not attend crime scenes and are not involved in solving cases. They are there to objectively analyze the evidence and return the results to detectives.
These shows also frequently solve crimes with DNA. The typical scenario is detectives are stumped by a crime, but lo and behold, some clever geek manages to pull DNA from some unlikely place and identify the perp.
Rarely, if ever, does this occur. In the first place, although DNA databases do exist, most criminals are not in them. In Canada, mandatory DNA orders are only given out for DNA designated offences such as sexual assault, murder, aggravated assault, kidnapping, extortion and the like. Besides, there are a million different ways a person’s DNA could show up at a crime scene.
The bottom line is most crimes are solved by good old-fashioned police work, with
DNA providing corroborative evidence.
There is one thing TV gets right. The familiar scenario unfolds when a suspect refuses to give a voluntary sample so the cops surreptitiously get it from a coffee cup, cigarette butt or something else the suspect has used. The relevant case law in Canada is R. v. Stillman.
In this 1991 murder of a teenage girl, investigators found semen his her vagina and a bite mark on her abdomen. Through his lawyer, the suspect refused to give DNA samples and teeth impressions, but the cops took them anyway under force of threat. After a lengthy interrogation, which left the defendant sobbing, he was allowed to go to the bathroom where he blew his nose and discarded the tissue. The interrogator retrieved the tissue from the garbage.
The New Brunswick trial judge ruled that Stillman’s Charter rights to be free of unreasonable search and seizure had been violated, but allowed the evidence anyway. This happens all the time because if a judge determines not allowing the evidence would undermine public confidence in the justice system and/or that the evidence is incontrovertible beyond a reasonable doubt and critical to the prosecution’s case, that is what they do.
In this case, had the police been patient they most likely would have been able to get a warrant anyway.
Nevertheless, the New Brunswick Court of Appeal upheld the lower court decision. The Supreme Court, however, overturned the conviction—with four of the nine justices dissenting—and ordered a new trial without the evidence from the illegally obtained samples and teeth marks. It did allow the prosecution to use the DNA evidence from the tissue, however, saying that although it was a violation of his right to privacy it was not serious enough to exclude the evidence because it did not interfere with his bodily integrity, was discoverable and would not bring the administration of justice to suffer disrepute.
At his second trial, Stillman was again convicted of first degree murder and sent to jail for life with no eligibility for parole for eight years.
That also demonstrates another fallacy, that if police make a mistake, such as not reading you your rights or spelling your name wrong or putting the wrong birth date on an information, you can walk on a technicality.
It doesn’t work that way. I don’t know how many times I’ve seen mistakes pointed out on criminal informations and traffic tickets, but the Crown simply has to ask the judge to make the correction and the case continues.
The moral of the story is you can, and should, know your rights, but it is not necessarily going to save you in the Canadian justice system.
