Quebec’s highest court has ruled that tricking a sexual assault suspect into providing his DNA does not constitute a privacy violation.
Giovanni D’Amico had appealed his 2014 conviction for the brutal sexual assaults of four Montreal sex workers.
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Among his arguments was the claim that police had no right to collect his coffee cup during an undercover operation.
D’Amico, whom police had identified as a suspect in a string of assaults dating back to 2002, was invited to what he thought was a business meeting in April 2008.
He was in fact meeting an undercover Montreal police officer, who cleared their cups from the table when the coffee was done.
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D’Amico’s was then collected by another undercover officer.
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A DNA analysis revealed a possible match with genetic material found on two victims of unsolved sexual assaults.
That allowed police to obtain a court order to take a formal DNA sample, which contributed to his conviction.
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He was sentenced to 12 years in prison on three counts of sexual assault, one of sexual assault causing bodily harm and one of assault.
The Appeal Court analyzed the question of whether police have the right to collect “abandoned” DNA from citizens and make use of the samples and store them for as long as they see fit.
At trial, the accused sought to have the DNA evidence excluded, arguing that his constitutional rights had been violated — in particular the protection against unreasonable search and seizure. He also argued that he enjoyed “an expectation of privacy” with regard to his DNA, which he said is highly private and personal information.
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The arguments were rejected at trial, and the DNA evidence was allowed.
The Appeal Court has upheld that finding in a lengthy decision dated Jan. 22.
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It found the collection of the cup was planned by police in a public place.
D’Amico did not object to the undercover officer clearing the table, and “he continued to work on his computer, without concerning himself with the fate of his cup,” the judgment notes.
The Appeal Court added that the subterfuge occurred in the context of the investigation of a murder for which D’Amico was a suspect. He was later cleared of involvement in the killing.
“The judge concluded with good reason that (D’Amico) abandoned the cup and there was not in this case any violation of his right to respect of his privacy,” wrote Justice France Thibault, one of three appellate judges to hear the case.
She noted the police had sufficient grounds to suspect D’Amico based on witness descriptions of the attacker and his vehicle matched his appearance.
One of the judges, Martin Vauclair, dissented in part.
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He concluded the police operation infringed the accused’s Charter right not to be subjected to unreasonable search and seizure.
But he said the trial judge was nonetheless correct to allow the evidence.
Noting D’Amico’s bodily integrity had not been interfered with and police had not acted in bad faith, he said “exclusion of the evidence would be more likely to bring the administration of justice into disrepute than its admission.”
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