COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. RONALD MARINI (Appellant)
BEFORE: CATZMAN, CARTHY & O’CONNOR JJ.A.
COUNSEL: Michelle K. Fuerst for the appellant
Michal Fairburn for the respondent
HEARD: April 12, 2000
On appeal from the conviction imposed by Roy J. dated September 16, 1996.
E N D O R S E M E N T
[1] The appellant sought at trial to have evidence excluded on the alternative bases that his Charter s. 10(b) right to consult a lawyer and his s. 8 right against unreasonable search and seizure were violated. The appellant alleged that the police obtained a saliva sample from him without first obtaining his consent and without allowing him to contact a lawyer as he had requested.
[2] The outcome of the application depended entirely on whether the trial judge accepted the evidence of the appellant or that of one of the arresting officers. The trial judge dismissed the application.
[3] The s. 8 issue turned on whether the appellant gave an informed consent to the provision of the saliva sample. In his reasons, the trial judge placed the onus on the appellant to prove a lack of consent. This was clearly wrong: (see Collins v. The Queen (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C). On the basis of the incorrect onus, the trial judge appeared to find that there had been no breach of the appellant’s s. 8 rights. The trial judge went on to hold that, in any event, the evidence should be admitted under s. 24(2) of the Charter.
[4] The trial judge did not make any explicit findings on credibility. We are not prepared to read between the lines of the trial judge’s reasons in order to conclude that he must have believed the police officer’s evidence because of his finding that there was no breach of s. 8. The trial judge was clearly uncertain about whose evidence to accept. Towards the end of his reasons, he said:
… If there has been a breach under s. 8 of the Charter – and I am not sure, I am not fully convinced that there has been …
[5] The incorrect use of the onus, in our view, may very well have tipped the balance in favour of a finding that there had been no breach of a s. 8 right.
[6] Moreover, the trial judge gave no reasons whatsoever for dismissing the appellant’s application based on a breach of s. 10(b). Because of the uncertainty relating to findings on credibility, it would not be safe to conclude that the trial judge necessarily must have accepted the police officer’s testimony as it related to the s. 10(b) issue.
[7] The Crown argues that even if this court were to conclude that the trial judge erred in the manner in which he addressed the s. 8 and s. 10(b) issues, the evidence would nevertheless have been admissible under s. 24(2) of the Charter.
[8] The trial judge engaged in a s. 24(2) analysis based only on a s. 8 breach and held that the evidence was admissible under that section.
[9] This trial preceded the Supreme Court’s decision in R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321. It is conceded that the trial judge erred in not treating the saliva sample as a form of conscriptive evidence, which when obtained in breach of a Charter right will, as a general rule, render a trial unfair. The trial judge’s conclusion on this issue is therefore of little assistance.
[10] The Crown argues that the taking of the saliva sample was minimally intrusive and should therefore come within an exception to the general rule in Stillman. Even if there is a “minimally intrusive” exception to the general rule in Stillman, we do not have the necessary findings of fact from the trial judge to address that issue in the context of a s.10(b) breach.
[11] The Crown also argues that the admission of this evidence would not render the trial unfair because it would have been discovered in the absence of the unlawful conscription of the appellant. The Crown says that it was open to the police to obtain a search warrant under s. 487 of the Criminal Code to seize the tissue or other bodily substances from the appellant while he was in custody, or to obtain a DNA warrant after the new DNA warrant provisions were enacted in 1995 (the arrest was in September 1992).
[12] In order to take advantage of the discoverability principle, the Crown must establish on a balance of probabilities that the police would have availed themselves of the alternative lawful or non-conscriptive means: Stillman, supra, p. 360. There was no evidence on the application to establish that the police would have taken the steps that the Crown now urges were open to them. On the facts of this case we are not prepared to draw that inference.
[13] Accordingly, we are not satisfied that this evidence would be admissible under s. 24(2) of the Charter.
[14] We would, therefore, allow the appeal, set aside the convictions and direct a new trial.