WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court Information
Court of Appeal for Ontario
Judges: Gillese, Huscroft and Trotter JJ.A.
Between:
Her Majesty the Queen Respondent
and
Eli Stewart Nicholas Appellant
Counsel:
- Daniel J. Brodsky, for the appellant
- Jocelyn Speyer, for the respondent
Heard: May 1, 2017
On appeal from: the convictions entered by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting without a jury, on October 25, 2006, from the convictions entered by Justice Tamarin M. Dunnet, sitting with a jury, on November 27, 2006, and from the sentence imposed on June 1, 2010, with reasons reported at 2010 ONSC 2929.
Decision
A. Introduction
1Eli Nicholas was found guilty of breaking into the home of a 68-year-old woman and assaulting her by holding a pillow over her face. He was also found guilty of breaking into the home of another woman, aged 54, and raping her. He was declared a dangerous offender and received an indeterminate sentence.
2Mr. Nicholas appeals, arguing that his Charter rights were infringed when the police seized a sample of his saliva for DNA analysis. He also argues that his right to a fair trial was undermined by the failure of the police to preserve relevant evidence. Lastly, Mr. Nicholas appeals his indeterminate sentence.
3For the following reasons, I would dismiss the appeals.
B. The Facts
4There is no dispute that the Crown proved the appellant's guilt beyond a reasonable doubt. The following facts provide context for the discussion of the issues raised on appeal.
(1) The Police Investigation and the Offences
5In 1999, the Toronto police set up a Task Force to investigate a string of break-ins and sexual assaults in the Scarborough area believed to be committed by the so-called "Scarborough Bedroom Rapist."
6A.U. was 68 years old at the time and lived with her husband who was physically disabled. She awoke one morning to find an intruder holding a pillow over her face. A.U. struggled and the intruder fled. She discovered that $25 was missing from her wallet. In one of the spare bedrooms, A.U. found an orange juice container that was taken from her fridge. The police failed to preserve this container for forensic analysis. Consequently, no DNA evidence was recovered in relation to A.U.
7The appellant broke into the home of G.W., who was 54. He rummaged through the main floor and stole a small sum of money. Brandishing a cordless drill he found in the house, the appellant went upstairs to G.W.'s bedroom, where she was sleeping. The appellant covered her face with a pillow and raped her while repeatedly hitting her in the head and face. The appellant's semen was found in G.W.'s vagina.
8While not the subject of this appeal, it is relevant to explain another incident. The appellant was also charged with offences in relation to F.G., a 75-year-old woman. She awoke one night to find the appellant lying on top of her. She struggled, and he fled. Twenty dollars was taken from her wallet. An orange juice container had been taken from her fridge and left in another room. The appellant's DNA was found on the container.
(2) The First Trial and Appeal
9Originally, the appellant was jointly tried in relation to all three incidents. He was found guilty of the F.G. offences, but acquitted of the A.U. and G.W charges. Both the Crown and the appellant appealed. This court dismissed the appellant's conviction appeal on the F.G. offences, but allowed the Crown's appeal and ordered a new trial on the A.U. and G.W. charges: see R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 225.
10The A.U. and G.W. charges were re-tried separately, but before the same trial judge. The trial judge heard two pre-trial motions relating to the two issues raised on the appellant's current appeal against conviction: an application to exclude the DNA sample police obtained from the appellant, and a stay application for destruction of evidence. Both applications were dismissed.
11The trial of the G.W. charges proceeded first, without a jury. Based on an Agreed Statement of Facts, the appellant was found guilty. The A.U. charges proceeded as a judge and jury trial. The appellant was found guilty. Based on the G.W. convictions, the appellant was declared a dangerous offender and received an indeterminate sentence.
C. The Issues
(1) The DNA Sample
12The appellant claims that his Charter rights were infringed when the police seized his DNA during their investigation. This ground of appeal relates to the G.W. charges only. As already noted, there was no DNA link to the A.U. charges.
13The appellant alleges two breaches: (1) his consent to providing a DNA sample was invalid because it was not properly informed, thereby violating s. 8 of the Charter; and (2) he was detained when he provided his sample and was not advised of his right to counsel under s. 10(b) of the Charter. He argues that the DNA evidence ought to have been excluded under s. 24(2). I disagree.
(a) Factual Background
14In September of 1999, the police were advised that bodily fluids left at the G.W. and F.G. crime scenes generated the same DNA profile. As part of their investigation, the police identified "persons of interest" and asked them to provide saliva samples. A "person of interest" meant anyone who might have information concerning the investigation, including witnesses or potential perpetrators. If a person of interest agreed to provide a sample, he was asked to execute a written consent to the procedure. If the person of interest refused, the police would endeavour to surreptitiously obtain a sample from items – such as beverage containers or cigarette butts – the individual discarded.
15The police identified over 100 persons of interest. Dozens of men, including the appellant, voluntarily provided saliva samples.
16The appellant was identified as a person of interest based on an anonymous tip. Two officers went to his residence on September 21, 1999, but he was not home. They returned the next day at 10:10 p.m. The police attended at that time because the appellant was subject to a recognizance that required him to be home between 9 p.m. and 6 a.m., unless in the presence of a surety. At the time, the officers did not consider the appellant to be a suspect.
17When the police arrived at the appellant's residence, the landlord, who also lived on the premises, let them in. He told the police that the appellant was taking a shower. He led them to the second-floor landing. The appellant came out of the bathroom with a towel around his waist. The officers identified themselves and stated their purpose. The appellant asked and was permitted to get dressed while the officers stood by.
18The appellant and the officers went downstairs to the kitchen where the appellant's mother joined them. The police explained to the appellant that he was a person of interest. A consent form was read to the appellant twice and the officers explained what would happen. The officers audio-recorded this interaction.
19The appellant signed the consent form and provided a saliva sample. Among other things, the form provided:
You are not required to give us these samples. You may refuse to provide these samples. If you agree to provide samples for analysis the results of the analysis may be used against you in criminal proceedings. You may discuss this request with anyone including a lawyer and you are free to do so now.
I EN Eli Nicholas, have read and understand page 1 and freely consent to provide the samples requested for the purpose stated on page 1.
20Before the appellant signed the form, his mother asked the officers whether her son should speak to a lawyer first. They said, "It's up to him." After the appellant provided a sample and answered some questions, the police left.
21I pause here to note that the consent form was inaccurate in one, minor respect – it omitted the date on which the A.U. offences were committed (June 2, 1999). However, the appellant was asked about all relevant dates during the subsequent questioning by the police. He could not remember where he was on any of the offence dates.
22Returning to the appellant's status at the time of the investigation, at trial, one of the officers was asked whether the police believed they had found the man they were looking for when they left the appellant's home with his saliva sample. The officer answered:
You know, sir, essentially, Mr. Nicholas was another detail, another swab, if you will, nothing more. There was nothing spectacular or outstanding about the man in any way that I felt that I would contact the lead detective about him.
23Following his arrest on September 25, 2009, the appellant told an officer: "I voluntarily gave you my sample, man. I didn't do anything." He told another officer that he had been cooperative because he had nothing to hide. The police executed a search warrant at the appellant's home and discovered rap lyrics that he had written. The lyrics referred to DNA and solving a murder.
24The appellant testified on the voir dire. He was 27 years old. He recalled the officers coming to his home on September 22, 1999. The appellant identified his signature on the consent form, but could not remember the officers explaining why they wanted him to sign it.
25The appellant testified that he did not ask to speak to a lawyer because he did not think it would make a difference. He said he was afraid of the officers and felt trapped because his recognizance prevented him from leaving the house. The appellant felt threatened by the tone of the officers' voices and their body language. He testified that one of the officers told him that, if he did not cooperate, the officers would return. The appellant thought the police would use whatever means necessary to get a sample, including violence.
26Dr. Nathan Pollock, a psychologist, was called as a witness by the defence. He performed psychological testing on the appellant and studied the consent form. Dr. Pollock testified that the appellant had below average intellectual abilities. He described the appellant as naïve, suspicious of the motives of others, with a strong need for acceptance and approval. In the presence of the police that day, the appellant may have perceived threats where none existed. Dr. Pollock testified that the appellant would not have been able to fully comprehend the document and provide an informed consent.
27In cross-examination, Dr. Pollock identified three possible scenarios in relation to the appellant's understanding of the consent form: (1) the appellant did not realize that he did not understand it; (2) the appellant was embarrassed to admit that he did not understand it; or (3) the appellant understood it. Dr. Pollock acknowledged that he did not take into account the following factors in concluding that the appellant did not understand the form: the appellant's past experience with the criminal justice system; his decision to call a lawyer after his arrest; his rap lyrics; and his statement to the police in which he acknowledged giving the sample voluntarily.
(b) The Trial Judge's Reasons
28The trial judge admitted the DNA evidence. She provided thorough reasons. The trial judge acknowledged that, in Nicholas, this court rejected the same arguments after the appellant's first trial, based in part on the appellant's failure to testify.
29The trial judge ruled that the appellant was not detained during his encounter with the police on the day he provided his sample. She based her conclusion on the following nine factual findings: (1) when the police arrived at the house, they did not have reasonable grounds to believe the appellant committed any of the crimes under investigation; (2) a man with apparent authority over the premises, the landlord, let the police into the house; (3) the officers agreed to the appellant's request to get dressed; (4) the appellant was aware of the purpose for which the police were at his residence; (5) the tone of the police on the audiotape recording was "conversational and non-threatening and the applicant's responses do not betray any sense of intimidation or confusion"; (6) had the appellant refused to provide a saliva sample, the police would have left, as they had done with other persons of interest who refused to cooperate; (7) there was no credible evidence that the police threatened the appellant; (8) Dr. Pollock's evidence was "of little assistance"; and (9) the appellant's evidence was not credible.
30When the trial judge made her decision on October 23, 2006, she was governed by this court's decision on psychological detention in Nicholas, which relied heavily on R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.), leave to appeal refused, [1988] 1 S.C.R. xi (note). She also relied upon this court's decision in R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 81 O.R. (3d) 1 (C.A.), rev'd 2009 SCC 32, [2009] 2 S.C.R. 353. The trial judge concluded, at para. 87:
In my view, there is nothing about his status in the investigation, or in the circumstances surrounding the taking of the sample, to conclude that the applicant was either actually or psychologically detained at the time he signed the consent and provided the buccal swab sample. There was no demand or direction, explicit or implicit, which had any bearing on the signing of the consent. Thus, there was no infringement of the applicant's s. 10(b) rights to counsel.
31On the issue of consent, the trial judge rejected the appellant's contention that, when he provided his sample, he was a suspect, and not merely a person of interest. The trial judge found, at para. 94:
I conclude that the circumstances here do not rise to the trigger point. There was nothing, to the knowledge of the police, linking the applicant to the A.U. or G.W. crimes or any other crimes under investigation. At the time the DNA samples were obtained, the police did not have any suspects. To their knowledge, he was "another detail, another swab". I also find he understood his status in the investigation at that time.
32As to the wording of the consent form, the trial judge said, at para. 97:
I am of the view that the consent was detailed, informative, and sufficient to permit the applicant to cast his mind back to the summer. The wording was also sufficient to advise him of the nature of the police conduct to which he was being asked to consent, his right to refuse to participate in the conduct requested, and the potential consequences of giving the consent. No force was used and he was not intentionally misled. The dates in issue were specifically mentioned to him and he responded to the questions asked.
33Applying R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145 and R. v. Wills (1992), 7 O.R. (3d) 33 (C.A.), as this court did in Nicholas, the trial judge found the appellant's consent was valid. She reasoned, at para. 110:
There was nothing in [the appellant's] demeanour or in his responses to the questions asked by the police to suggest that he did not understand what he had been told, including his right to consult a lawyer. The police had no reason to assume otherwise. His communications, though brief, were responsive and appropriate. There was no outward indication of confusion or lack of understanding.
These conclusions were reinforced by the rap lyrics found in the appellant's bedroom, and by his statements to the police upon arrest.
34Despite the appellant's valid consent, the trial judge found a s. 8 breach because the consent form failed to reference the date of the A.U. offences. However, she refused to exclude the evidence under s. 24(2) of the Charter, finding that the breach was inadvertent and technical; the appellant's DNA was discoverable through discarded samples, especially given that such samples were obtained in relation to some of the other persons of interest; and the evidence was reliable and crucial to the Crown's case.
(c) Analysis
35In Nicholas, this court found that: (1) the appellant was not detained when the police seized his DNA; and (2) he provided a valid consent to the DNA sample. As Abella J.A. (as she then was) said, at paras. 45-46:
In view of the trial judge's findings and in view of the absence of any evidence of psychological compulsion I find no basis for disturbing the trial judge's finding that Mr. Nicholas was not detained.
The trial judge also found that Mr. Nicholas provided a voluntary consent to the DNA sample. I see no basis for disturbing this finding.
36Mr. Brodsky argues that this court's decision in Nicholas is not determinative because the evidentiary record before the trial judge was different than it was at the first trial. Importantly, the appellant testified on the voir dire, whereas he did not to do so the first time around. Mr. Brodsky submits that the appellant was not merely a person of interest; he was also a suspect. He further argues that the law of detention has developed in a way that should affect the outcome of this case.
(i) Detention
37I acknowledge that the record at the second trial was enlarged by the appellant's testimony. However, the trial judge rejected his evidence as incredible. This finding is entitled to deference and was not challenged on appeal. Consequently, the record is essentially the same as the record reviewed in Nicholas.
38The appellant's assertion that he was a suspect when the police visited his house to obtain a sample must also be rejected. The finding that the appellant was merely a person of interest was available to the trial judge on the record before her. Again, deference is the watchword. No reasons were advanced for displacing this finding. Moreover, just as an individual's status as a suspect versus a person of interest is not determinative in the context of the voluntariness inquiry (see R. v. Pearson, 2017 ONCA 389, at para. 19), it is not determinative of the issue of detention. Both suspects and persons of interest are capable of being detained, depending on the circumstances.
39I agree with Mr. Brodsky that the law of detention has evolved since this court's 2004 decision in Nicholas, and since the trial judge's ruling. The Supreme Court addressed psychological detention in the companion cases of Grant and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. Both cases involved police-citizen encounters on the street, a context somewhat removed from the circumstances of the present case. Although the principles articulated in these decisions have broader application, the Supreme Court's re-statement of the law does not affect the correctness of the trial judge's conclusions.
40In Grant, McLachlin C.J. and Charron J. confirmed the long-standing principle that not every police-citizen encounter will amount to a detention for Charter purposes: see also R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19. They summarized the modern approach to psychological detention, at para. 44:
In summary, we conclude as follows:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
41Applying this re-worked framework to the evidence adduced at trial, the trial judge's reasons remain sound and reflect no analytical error. I point to the findings set out in para. 29 above, which support the conclusion that the appellant was not detained. As the trial judge concluded at para. 87 of her reasons: "There was no demand or direction, explicit or implicit, which had any bearing on the signing of the consent." And as the Crown notes in its factum, the only evidence that suggested that the police controlled the appellant's movements came from the appellant himself – evidence the trial judge rejected in its entirety.
42The uncontradicted evidence of the officers was that obtaining a saliva sample from the appellant was simply one of many routine tasks that needed to be completed in an expansive investigation. There was nothing exceptional about the appellant. The trial judge accepted that, had the appellant refused to provide a sample, the police would have left. The encounter, most of which was audiotaped, revealed no aggressive or intimidating conduct by the police; nor did it expose any confusion or sense of intimidation by the appellant.
43The evidence amply justified the trial judge's conclusion that the appellant was not detained. Consequently, the police had no obligation to advise the appellant of his right to counsel under s. 10(b) of the Charter.
(ii) The Validity of the Consent
44There is no error in the trial judge's finding that the appellant gave a valid consent to the seizure of his saliva. Given that the trial judge rejected the appellant's evidence, this court's earlier decision in Nicholas is a helpful touchstone on this appeal. The trial judge applied the same governing authorities (i.e., Wills and Borden).
45The appellant understood what he was being asked to do when he provided a sample of his saliva. The consent was read to him twice. The record reveals no confusion or hesitation on the appellant's part. In his subsequent interactions with the police, the appellant referred to his prior cooperation. The evidence as a whole supports the conclusion that he acted on his own free will, with an appreciation of the consequences.
46The trial judge did not err in finding that the consent form itself was adequate in the circumstances. This is consistent with Abella J.A.'s conclusion in Nicholas. Moreover, in R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259, this court approved of a similar consent form. As Doherty J.A. said, at para. 60: "the contents of this waiver track very closely the contents of the waiver found to be valid in R. v. Nicholas".
47In terms of the trial judge's finding that the omission of an offence date from the document amounted to a breach of s. 8 of the Charter, I agree with her finding that it was inadvertent, technical and minor. The officers specifically inquired into the appellant's whereabouts on June 2, 1999 – the date omitted from the consent form. The appellant understood why the officers were in his home and voluntarily consented to providing a DNA sample. The evidence was highly reliable and central to the Crown's case against the appellant; a case that hinged entirely on identity. The breach did not warrant exclusion under s. 24(2) of the Charter under the framework that existed at the time of trial; nor does it warrant exclusion under Grant.
(2) The Failure to Preserve Evidence
(a) Background
48As part of their investigation into A.U.'s attack, the police seized two boxes and an orange juice carton from her home on June 2, 1999. The evidence was sent to the police forensic lab and tested for fingerprints. The tests came back negative on July 17, 1999. Believing it to be of no further investigative value, the police destroyed the evidence.
49The officer responsible for destroying the evidence believed that the A.U. matter was an isolated home invasion – not a crime that was serious enough to ask a DNA lab to accept the evidence for testing.
50Andrew Greenfield, a forensic scientist who worked for the DNA lab, testified that, at the time of the investigation, the lab would likely only accept evidence from break-ins that involved assaults, or from an offence that was part of a series of break-ins. He testified that the lab would likely have accepted the orange juice container for DNA analysis based on the facts of the A.U. offences.
51During the application to stay proceedings, the Crown indicated its intention to bring a similar fact application to admit the break-in and assault perpetrated against F.G., including evidence relating to the orange juice container that had also been taken from her fridge, which tested positive for the appellant's DNA. The Crown sought to introduce evidence of the orange juice container (subsequently destroyed) recovered from A.U.'s home to buttress the cogency of its similar fact application. [1]
(b) The Trial Judge's Ruling
52The Crown conceded a breach of the appellant's s. 7 Charter rights. The trial judge accepted this concession. Applying R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.), she held that the actions of the police amounted to unacceptable negligence, but not gross negligence. She determined that a stay was not an appropriate remedy, in part because it was speculative whether DNA testing of the container would have yielded evidence helpful to the appellant.
53The trial judge also rejected the alternative remedy of prohibiting the Crown from relying on the F.G. offences as similar act evidence. Instead, in accordance with Bero, the trial judge permitted defence counsel to cross-examine police witnesses on their negligent destruction of this potentially relevant evidence. Defence counsel took full advantage of this opportunity and cross-examined the police witnesses extensively on their failure to preserve this evidence. The trial judge also instructed the jury on the failure of the police to preserve relevant evidence and its impact on the Crown's ability to prove the appellant's guilt beyond a reasonable doubt.
(c) Analysis
54On appeal, there is no challenge to the trial judge's refusal to grant a stay of proceedings. The appellant argues that the trial judge ought to have prevented the Crown from adducing evidence of the orange juice container that had been destroyed.
55I would reject this submission. The trial judge exercised her remedial discretion under s. 24(1) of the Charter, crafting a remedy that appropriately corresponded to the seriousness of the breach. There is no basis to interfere with her decision.
56Section 24(1) of the Charter equips courts with the power to fashion remedies considered to be "appropriate and just in the circumstances." In the early Charter case of R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, McIntyre J. observed, in the oft-quoted passage, at p. 965: "It is difficult to imagine language which could give the court a wider and less fettered discretion." See also Ward v. Vancouver (City), 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 17.
57The applicable standard of review corresponds with this broad grant of discretion under s. 24(1). In R. v. Bellusci, 2012 SCC 44, [2012] S.C.R. 509, Fish J. articulated the standard in the following way, at para. 17:
It is well established that a trial judge's order under s. 24(1) of the Charter should be disturbed on appeal "only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice": R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 117; Canada (Minister of Citizenship & Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 87.
Fish J. also adopted the following passage from his reasons in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 (dissenting in the result), at para. 42:
Appellate courts may interfere with a trial judge's exercise of discretion only if the trial judge has erred in law or rendered an unjust decision. This is particularly true of remedies granted by trial judges under s. 24(1) of the Charter, which by its very terms confers on trial judges the widest possible discretion. [Emphasis in original.]
58The trial judge's ruling responded appropriately to the police negligence in failing to preserve the orange juice container. The remedy was proportionate to the circumstances of the breach, especially in light of the reality that it was completely speculative whether DNA testing would have yielded any exculpatory evidence. It was possible that any DNA on the orange juice container would have matched the appellant's DNA recovered from the F.G. and G.W. crime scenes, equipping the Crown with another piece of highly inculpatory evidence implicating the appellant in the A.U. offences. The trial judge's ruling was neither wrong, nor was it unjust.
59I would reject this ground of appeal.
(3) The Appeal against Sentence
(a) Introduction
60After the two trials that resulted in the convictions on the A.U. and G.W. offences, the Crown applied under s. 753 of the Criminal Code, R.S.C. 1985, c. C-46 to have the appellant declared a dangerous offender and sentenced to an indeterminate period of incarceration. The application was brought in relation to the G.W. offences (break and enter, sexual assault and fail to comply with a recognizance). The appellant was sentenced separately on the A.U. offences (an issue that is not part of this appeal).
61The appellant does not challenge the trial judge's conclusion that he met the definition of a dangerous offender in s. 753. There was ample evidence to support this finding. Instead, the appellant argues that he should not have received an indeterminate sentence. I disagree. Again, the trial judge's order was amply supported by the evidence.
(b) The Predicate Offences
62A brief outline of the G.W. offences is set out in para. 7, above. For the purposes of this ground of appeal, more detail is required, especially as it relates to the impact of the appellant's offences. As the trial judge explained in her reasons, at para. 7:
G.W. sustained injuries to her face, inner thigh and wrist. However, it was the psychological impact that had a devastating effect on her life. She developed a post-traumatic stress disorder which, according to psychologist Margaret Voorneveld, impacted her ability to carry out her daily activities and rendered her unable to continue with her employment as an accounting clerk. Medical evidence was adduced that the prospect of having to testify at trial caused a total deterioration in G.W.'s psychological status and forcing her to testify could result in a complete inability to function. As a result of the actions of Mr. Nicholas, G.W. sold her home and moved from the Toronto area where she continues to live a reclusive existence. [Footnote omitted.]
(c) The Appellant's Background and Criminal History
63At the time of the predicate offences, the appellant was 19 years old. His father died when he was 19 months old and he was raised by his mother.
64The appellant began acting out at a very young age. When he was three, he behaved very aggressively towards other children. At the age of four, a psychiatrist recommended that the appellant receive a special class placement. When he was ten, he engaged in sexually inappropriate behaviour, including exposing himself and making sexually suggestive comments to female students.
65Between the ages of 13 and 24, the appellant accumulated 36 convictions, one third of which demonstrated a disregard for court orders and law enforcement. He has other convictions for break and enter, assault and drug offences.
66As part of the dangerous offender application, the trial judge relied upon the A.U. and F.G. offences. When he was arrested for the F.G., A.U. and G.W. offences, the police executed a search warrant at the appellant's home. They discovered a loaded handgun in his bedroom closet.
67The trial judge also relied on another set of offences committed by the appellant after he completed his sentence on the F.G. offences, but prior to the hearing of his first appeal to this court.
68On Christmas Day of 2002, the appellant broke into another home. He went into the kitchen, opened a can of pop and used the bathroom. B.N., a 49-year-old woman, saw the appellant standing at the entrance to her bedroom door. As she got out of bed, the appellant ran out of the house through the front door. He ran around the house and entered again through the back door. This time he was confronted by B.N.'s husband, who was wielding a two-by-four. The appellant fled.
69Footprints in the snow revealed that, over the next 45 minutes, the appellant approached a window or door of 35 different homes in the area. When the police apprehended him, he punched one officer in the mouth and kicked another. As the trial judge said in her reasons, these offences had a "profound and devastating impact" on B.N. and her family. The appellant received a sentence of six years' imprisonment for these offences.
(d) Psychological Assessments
70The appellant was assessed by a number of professionals leading up to his sentencing hearing. Dr. Nathan Pollock, who also gave evidence at the trial (see paras. 26 and 27, above), testified that the appellant had below average intellectual abilities. He functioned at a grade five to seven level in math, and read at a high school level. Dr. Pollock also concluded that the appellant showed social adjustment issues, as well as an antisocial outlook with a mistrust of authority figures.
71Pursuant to s. 752.1(1) of the Criminal Code, the trial judge appointed Dr. Phillip Klassen to assess the appellant. The appellant declined to be interviewed for the assessment. Based on his review of the voluminous materials documenting the appellant's life, Dr. Klassen concluded that the appellant met the criteria for the diagnosis of anti-social personality disorder.
72Dr. Klassen also concluded that the appellant may suffer from a paraphilia known as "gerontophilic coercive sexual interest" – a preference for non-consensual sexual interaction with older females.
73In his report, which was filed as an exhibit, Dr. Klassen noted the appellant's persistent unwillingness to abide by the terms of court orders or to seek treatment. He wrote: "unfortunately, this gentleman has, more than any assessee in recent memory, consistently declined to adhere to the stipulations of conditional release, or to access treatment." After administering numerous risk-prediction tests, Dr. Klassen testified that the appellant "is at high risk, if not very high risk, of serious re-offence."
74As the trial judge noted at para. 68 of her reasons, Dr. Klassen concluded that the appellant could not be managed in the community because of "his poor self-disclosure, poor engagement, criminal lifestyle and rapid recidivism".
75The appellant was also assessed by Dr. John Paul Federoff. He too considered that the appellant was at high risk to re-offend. Dr. Federoff also administered actuarial risk assessment tests. He said that people with the appellant's score on one test were reported to have re-offended at a rate of 100% within seven years, while 52% of people with the appellant's score on a sexual-recidivism test sexually re-offended within fifteen years.
76Despite the high likelihood of recidivism predicted by the appellant's risk-assessment scores, Dr. Federoff was more optimistic about managing the appellant's risk in the community. He recommended sex-drive reducing medication, along with other programming for sex offenders in a secure mental health facility, followed by a closely supervised outpatient treatment program.
(e) The Trial Judge's Ruling
77The trial judge commenced her analysis by observing that the dangerous offender provisions were amended after the predicate offences (in 1999) but before the sentencing hearing in 2010. Until amending legislation in 2008, a sentencing judge had the discretion not to designate an offender as dangerous or to impose an indeterminate sentence even though the criteria were met: see Lyons v. The Queen, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 338, 362; and R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 26. The Tackling Violent Crimes Act, S.C. 2008, c. 6, removed this discretion. Applying s. 11(i) of the Charter, which guarantees the benefit of lesser punishment, the trial judge concluded that the application must be dealt with according to the legislation in force prior to the 2008 amendments.
78It was not contested (nor was it conceded) by Mr. Brodsky at the sentencing hearing that the appellant met all definitions of a dangerous offender in ss. 753(1)(a)(ii), (iii) and (b) of the Criminal Code. The trial judge gave detailed reasons for finding that these definitions were met: see paras. 126-35.
79On behalf of the appellant, Mr. Brodsky contended that the trial judge should impose a determinate sentence, with or without a long-term supervision order ("LTSO"). The Crown submitted that an indeterminate sentence was required.
80The trial judge determined that there was no reasonable possibility of managing the appellant's risk in the community. Referring to this court's decisions in R. v. Allen, 2007 ONCA 421, 86 O.R. (3d) 376, at para. 31; and R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, leave to appeal refused, [2008] 1 S.C.R. x (note), at paras. 40-41, the trial judge said, at para. 140:
There must be evidence of treatability that is more than a mere expression of hope and that indicates that the specific offender can be meaningfully treated. An offender's amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of re-offending are critical factors. [Footnotes omitted.]
81The trial judge concluded that the appellant had been consistently resistant to any form of treatment or intervention to address his offending. This conclusion was at the heart of the trial judge's rejection of Dr. Federoff's optimism about monitoring the appellant in the community.
82The trial judge concluded her reasons with the following passage, at paras. 174-75:
At the present time, Mr. Nicholas presents as an untreated, high risk, repeat sexual offender with a demonstrated disinclination to improve himself in any way in the face of repeated offers of assistance. Should history be the best predictor of his prospects in treatment, then, in my view, Mr. Nicholas will leave the correctional system as he entered and he will represent a significant risk to the community. There is no reliable evidence that he will be different in the future.
Having regard to the principles of proportionality and restraint, I am of the view that neither a determinate sentence nor a determinate sentence and an LTSO can reasonably be expected to reduce the threat to public safety presented by Mr. Nicholas to an acceptable level. Taking into account the practical unenforceability of treatment orders, the failure of Mr. Nicholas to participate in programs and his negative history and attitude, I am not satisfied on the whole of the evidence that there is a reasonable possibility of eventual control of the risk in the community.
(f) Analysis
83The appellant argues that the trial judge erred by failing to impose a determinate sentence. Mr. Brodsky submits that the trial judge placed an insurmountable burden on the appellant to prove that the proposed community supervision plan would succeed. With respect, I disagree.
84In R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, this court described the scope of appellate review in dangerous offender cases. As Tulloch J.A. wrote at para. 26:
Appellate review of a dangerous offender designation "is concerned with legal errors and whether the dangerous offender designation was reasonable": R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. While deference is owed to the factual and credibility findings of the sentencing judge, appellate review of a dangerous offender designation is more robust than on a "regular" sentence appeal: Sipos, at paras. 25-26; R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, at para. 33.
85The trial judge wrote extensive and careful reasons justifying her decision to impose an indeterminate sentence. She applied the correct analytical framework. She did not misapprehend any of the evidence led at the hearing. The trial judge's conclusion that the appellant's risk could not be managed in the community is amply supported by the evidence. The appellant's string of brazen home invasions reveals a disturbing pattern of violent behaviour. Between June 1999 and December 2002, the appellant broke into at least four homes, sexually assaulting two of the elderly women asleep inside and assaulting a third.
86The appellant's actions immediately before the assaults – helping himself to drinks from the fridge, using the washroom, and wandering around the house – demonstrate a cavalier attitude towards his offending and a complete lack of appreciation for the seriousness of his behaviour. Equally concerning, the appellant committed these offences even though he knew police were on the lookout for the perpetrator.
87Neither custodial sentences nor court orders have had any deterrent or rehabilitative effect. To give but one example, the appellant broke into B.N.'s home less than 48 hours after being released from custody for breaching his probation order imposed as part of his sentence for the F.G. offences. As the trial judge found, the appellant has consistently refused treatment to help manage his risk.
88A sentence that allowed the appellant's high risk of serious re-offending to be managed in the community would have involved an irresponsible leap of faith, one exposing society at large, and women in particular, to an intolerably high risk of violent, sexual offending. It would have been contrary to the preponderance of evidence adduced at the sentencing hearing. The trial judge's decision to impose an indeterminate sentence was the only realistic option at the time.
89Nothing has changed. The trial judge made her decision to impose an indeterminate sentence just over seven years ago. The appellant has been incarcerated ever since. No application was made to adduce fresh evidence to shed light on the appellant's circumstances or any progress he may have made while he has been in custody. This is no criticism of Mr. Brodsky, who addressed the court on this issue, and acknowledged that he had nothing to work with. This tends to confirm the trial judge's scepticism about the appellant's expressed desire to change and to cooperate with interventions to reduce his risk of violent recidivism.
D. Conclusion and Disposition
90For these reasons I would dismiss the appeals from conviction and sentence.
Released: August 10, 2017
G.T. Trotter J.A.
I agree E.E. Gillese J.A.
I agree Grant Huscroft J.A.
1In its earlier decision in Nicholas, this court held, at paras. 63-75, that because of numerous similarities between the two sets offences, including the orange juice containers, the evidence was admissible as similar fact evidence.
