R. V. Stillman - Dissent

Dissent

McLachlin, L'Heureux-Dubé, and Gothier JJ. each gave their own dissenting opinions.

McLachlin first noted that the taking of bodily samples is a matter of section 8 of the Charter rather than section 7. The protection of section 7 against self-incrimination only extends to testimonial and derivative evidence but not physical evidence. To extend the section farther would go beyond the intended limits in both Canada and other comparable justice systems around the world.

McLachlin agreed with the majority that the taking of hair samples, buccal swabs, and dental impressions were serious violations under section 8. However, the collection of the tissue was not, as the tissue had been abandoned and it was not derivative evidence. Though the samples were created as a result of detention, the bodily state that they represent was not created by detention and exist outside of the detention.

Section 24(2), McLachlin stated, requires balancing of all the circumstances of the case with the effect of admitting the evidence on the reputation of the system. The three set of factors in R. v. Collins are only convenient groupings of these circumstances that may be useful. So long as the effect of the admission of evidence on the system is balanced against the effect of the exclusion then the analysis is complete.

McLachlin rejected Cory's ruling that all evidence which affects trial fairness must be excluded. Such a rule is against the spirit of section 24(2) which intends to balance the alternate effects upon the repute of the system. It also mistakenly equates non-consensual participation with trial fairness. Lastly, it suggests that any amount of trial unfairness automatically outweighs any other possible factors that may come into play.

On the facts, McLachlin held that the lower courts properly weighed the factors and that they were correct in admitting the evidence.