Police collected hundreds of DNA samples, some without consent, in search for Byron Carr’s killer

A year before the charges against Todd Joseph Irving in connection with the 1988 death of Byron Carr were withdrawn, details of the police investigation — including how hundreds of DNA samples were obtained, some without consent — were heard in a Charlottetown courtroom.

Carr, a 36-year-old high school teacher, was found dead in his home in 1988. He’d been strangled with a towel, then stabbed with a knife after his death. The words “I will kill again” were scrawled on the wall. 

The case went cold until 2024 when police announced that Irving had been arrested and charged with first-degree murder and interfering with human remains. Those charges were withdrawn after it was revealed that Charlottetown police lost substantial key evidence in the case, including the towel and knife and — according to court documents — the drywall taken from Carr's bedroom where the words "I will kill again" were written.

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Until now, CBC News hasn’t been able to report details about the lengths to which police went in an effort to solve the case, which came out in an October 2025 P.E.I. Supreme Court hearing to determine whether DNA collected from Irving’s trash could be used at trial.

Defence lawyer Chris Montigny painted a picture of investigators who were so intent on solving the cold case that they obtained DNA samples from at least 279 people, not including Irving, 13 of which were taken without the person’s knowledge or consent. Some of those, the court heard, were taken after the person had refused to submit a sample when asked.

Only three samples were obtained with a search warrant. 

'That’s acting on hunches,' says defence

CBC News reached out to a number of people named in court whose DNA was taken without their consent. None wanted to do an interview, but many were shocked to learn their DNA had been taken. Some were angry, calling it an invasion of privacy.

The words 'I will kill again' were written on the wall of Byron Carr's bedroom. According to court documents, Charlottetown police lost the piece of drywall they had removed from the crime scene. (Charlottetown Police Services)

Montigny argued police knew they didn’t have grounds to get a warrant for Irving’s DNA — or for most of the other samples collected over the course of the investigation.

He detailed case after case in which people refused to give their DNA when asked but police took it anyway, from discarded pizza boxes, napkins, pop cans and cigarette butts. 

Montigny said the investigation’s net grew wider, from young men to women who may have been operating escort services to mothers of potential people of interest — people police admitted when questioned by the defence were not suspects but who may have had connections to a possible suspect. 

In one case, police asked a woman for her DNA because they thought she may have been the contributor of female DNA found at the crime scene. She refused. A month later, police picked up a cigarette butt off the ground and used that to get her DNA.

“Choice is illusionary," Montigny told the court, calling it a “no-win situation.”

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In another case, police picked up various items to obtain DNA from a man after his ex-girlfriend told police the underwear found at the crime scene, photos of which were shown in local media reports, was similar to underwear her ex wore. 

Police followed another person who refused to give a sample into a store and obtained their DNA from the shopping basket they’d used.

“This can’t be enough,” Montigny said. “That’s acting on hunches.”

Montigny detailed the samples taken from discarded objects, none of which were obtained with a warrant, telling the court “the ends doesn’t justify the means.”

He argued the investigation was nothing more than a fishing expedition, and “individual rights were just an impediment.”

Carr, a teacher, had been strangled with a towel and stabbed with a kitchen knife. (Family photo)

Montigny called these “serious abuses” by police and urged the court not to condone them.

“Allowing the evidence in is condoning it,” he said. “The only way you can send a message that their rights mean something, is to exclude the evidence.”

“To protect your DNA, the only way to do that is to not leave your house,” he told the court. “It’s not reasonable to expect in a free, democratic, open society to become reclusive to protect our DNA.”

'Perfectly lawful' investigative tool, says Crown

In its written response to Irving’s Charter application, the Crown argued collecting garbage is “a perfectly lawful” investigative tool.

“This technique cannot be considered ‘objectively unreasonable’ in that it is an accepted police practice in use for over 30 years which has been endorsed by the Supreme Court of Canada,” the response reads.

At the hearing, Crown attorney Chris White argued it was critical to the investigation to determine whose DNA was left at the crime scene, saying people in the already marginalized gay community — and in Charlottetown more broadly — were left in terror after Carr’s murder. 

Police have long said they believe he was killed during what began as a consensual encounter with another man. Carr’s sexuality had been kept a secret, police said, and only came to light after he died.

Court documents indicate police obtained DNA samples from at least 279 people, not including Irving, during their investigation. (iStock)

“There is great public interest in solving cold cases, cases which, by their nature, mean that police have limited information about potential suspects,” reads the Crown’s written response. “As the history of this case illustrates, police often follow countless fruitless leads in pursuit of identifying a perpetrator.”

At the hearing, White argued that reasonable people want crimes to be solved.

“Police acted in good faith,” he told the court. “The evidence is reliable and led to gathering of more evidence that is critical to this case.” 

The Crown went on to argue that Irving’s legal team had no standing to raise concerns about how the DNA of other people was collected, and that those samples were all collected under the same premise that there’s no reasonable expectation of privacy when it comes to abandoned garbage. 

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“The Applicant [Irving] has attempted to inject several other aspects of police conduct, which are not the subject of this application, to impugn the police more generally in this investigation,” the Crown’s response reads. “Each are criticisms without merit.”

The response went on to call the suggestion that police offered the “illusion of choice” meritless.

“Police use of a consent form is a matter of investigation efficiency and operational needs — not a precondition necessary to lawful gathering of DNA,” the Crown’s response reads. “Police are perfectly entitled to gather cast-off DNA from a suspect or person of interest who has already refused his consent.”

Chief justice dismisses Charter challenge

Ultimately, Chief Justice Tracey Clements dismissed the Charter challenge, meaning the DNA evidence collected from Irving’s trash would have been heard by a jury if the charges hadn’t been withdrawn before the case made it to trial.

“To accept the arguments of the defense counsel is simply a bridge too far for me,” Clements wrote in her written decision. “There is a robust body of law which indicates obtaining DNA from cast-off items which have been abandoned, for comparative DNA purposes, is constitutionally sound.” 

WATCH | The man police accused of murdering Byron Carr in 1988 is now free. Here's what happened:

The man police accused of murdering Byron Carr in 1988 is now free. Here's what happened

October 13|

Duration

7:20

Clements ruled Irving forfeited any expectation of privacy when he abandoned the items in question by throwing them out.

She also accepted the Crown’s argument that the 279 other DNA samples obtained during the investigation weren’t within the scope of the Charter challenge.

“The issue before me is whether the accused’s [Charter] rights have been breached, arising from the police collection of items from the garbage at the end of the driveway of the accused’s residence.”