COURT OF APPEAL FOR ONTARIO

DATE: 20000420

DOCKET: C30376

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.