DATE: 20000516
DOCKET: C24289
COURT OF APPEAL FOR ONTARIO
CHARRON, MOLDAVER and MacPHERSON JJ.A.
B E T W E E N : )
) Irwin Koziebrocki,
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) Milan Rupic,
) for the respondent
JAMES THOMAS EAKIN )
)
Appellant )
)
Heard:May 2, 2000
On appeal from his conviction by Mr. Justice J. Hamilton, sitting
without a jury, on June 30, 1993.
CHARRON J.A.:
[1] Following a trial before Hamilton J. sitting without a jury,
the appellant was convicted of sexual assault and robbery on June
30, 1993. On June 21, 1995, he was declared a dangerous offender
and sentenced to an indeterminate sentence. The appellant
appeals against his convictions, the finding that he is a
dangerous offender, and sentence.
[2] Crown counsel provides a useful overview of the case in his
factum as follows:
i) The offence of July 16, 1990
On July 16, 1990, the appellant followed
a business woman from the lobby of the
downtown Toronto Chelsea Hotel to her room.
He pretended to be room service, which caused
her to open her door, whereupon he forced
himself into the room, gagged her, tied her
up, and savagely raped her. The Appellant
was convicted on the basis of the
complainant's identification of the Appellant
as the perpetrator of the offence. The
learned trial judge also accepted the results
of the forensic testing which established
that the DNA in the spermatozoa matched the
Appellant's DNA to the extent that only one
person in approximately fifty possess the
same DNA profile (based on a one probe match
at D17S79). However, in assessing the
significance of that forensic evidence, the
trial Judge simply found that it "did not
exclude" the Appellant as being the
perpetrator.
ii) The dangerous offender application
Following conviction, the Crown brought
an application for a dangerous offender
application. The Crown adduced evidence that
on June 19, 1990, the Appellant followed a
business woman to her room in the downtown
Toronto Sheraton Hotel. As she was about to
close the door, the Appellant forced his way
in, broke her nose, savagely raped her, and
tied her up. By the time of the trial in the
within case, the Appellant had been convicted
of that offence and had been sentenced to six
years in the penitentiary.
There was also evidence of prowling on
two other occasions: On July 27, 1990, the
Appellant prowled for about two hours in the
downtown Toronto Sheraton Hotel. On
August 12, 1990, the Appellant prowled in the
downtown Toronto Holiday Inn. The trial
Judge found that on both those occasions the
Appellant was looking for another victim.
The Crown adduced psychiatric evidence that
the Appellant is a psychopath with a sadistic
sexual paraphilia. If released, there is a
very high likelihood that he will commit
further violent sexual offenses of the type
for which he has been convicted. His
condition is incurable, and there is no real
prospect of treatment. Even the defence
psychiatrist acknowledged that there is a
"high risk" (or a "significant likelihood")
that, if released, the Appellant would commit
further violent offenses, of the type for
which he has been convicted, and that there
was no real prospect of treatment.
[3] The appellant raises several grounds in support of his
appeal. In my view, there is no reason to interfere with any of
the trial judge’s findings or his conclusions. Hence, each ground
of appeal can be disposed of summarily.
- Right to counsel
[4] Upon arrest, the appellant was advised that he was under
arrest for sexual assault, he was cautioned and was instructed
that he had a right to counsel. He was also informed that he was
entitled to free legal advice. Upon being asked if he wished to
call a lawyer, the appellant indicated that he did not.
[5] Some time later at the police station, during the course of
an interview with the police, the appellant was given further
details about the alleged offence. At that point, the appellant
did not make any substantive comment about the incident except to
proclaim his innocence. The officers then left the room and upon
their return some forty minutes later, the appellant was again
cautioned. When asked whether he wished to call a lawyer, he
indicated that he wanted to speak to his lawyer, Robert
Kellerman. The appellant was given a telephone book which he
appeared to thumb through randomly and he did not locate
Mr. Kellerman’s number. Detective Wilson also tried to find the
number but to no avail. He then went to look for a lawyers’
directory but could not locate one. It was agreed at trial that
Mr. Kellerman’s name and number are in the phone book and that
Mr. Kellerman was available at the time.
[6] The police placed a request for duty counsel and held off
questioning the appellant further. Duty counsel called a short
while later and the appellant spoke to him for about twelve
minutes. The appellant did not make any complaint or objection
about speaking to duty counsel. Moreover, he did not reiterate
his wish to speak to Mr. Kellerman nor did he indicate that he
wished to speak to any other lawyer. Following his conversation
with duty counsel, the appellant did not make any further
statement to the police. He did, however, agree to give samples
of hair and saliva. Later, he provided a sample of his blood.
[7] The appellant submits that the trial judge erred in
concluding that the appellant was provided with his right to
counsel. He submits that he was not provided with the proper
information that would have enabled him to contact his lawyer of
choice and argues that the trial judge improperly put an onus on
him to locate his counsel of choice.
[8] The trial judge’s conclusion on this issue is entirely
dependant on the facts as he found them. In my view, there was an
ample basis to conclude that the appellant had been properly
informed of his rights under s.10(b) of the Charter, that he had
been given a reasonable opportunity to exercise his rights and
that he appeared to accept duty counsel as an alternative to Mr.
Kellerman. Some of the critical findings include the facts that
the appellant had merely thumbed through the telephone book in a
manner that was carefree, that he had made no earnest attempt to
locate Mr. Kellerman, and that he never pursued his request.
While counsel for the appellant is correct in his submission that
the police could have made greater efforts to locate Mr.
Kellerman, this fact does not detract from the trial judge’s
findings with respect to the appellant’s own lack of diligence in
his attempts to consult with counsel of his choice.
[9] The trial judge properly instructed himself according to the
principles in R. v. Leclair and Ross (1989), 1989 134 (SCC), 46 C.C.C. (3d) 129
(S.C.C.), and his findings of fact are supported by the evidence.
Hence I see no reason to interfere with the finding that
Mr. Eakin’s right to counsel was not breached.
- Right to be informed of the offence
[10] The appellant submits that his initial waiver of his right
to counsel was not valid because he was not given a sufficient
basis to make an informed decision. Although the appellant was
informed that he was under arrest for sexual assault and he
understood that this was a serious offence, he argues that he
should have been given more information to enable him to identify
the occurrence in question. As matters stood, it is the
appellant’s position that he believed he was under arrest for
events that were alleged to have occurred on the day of his
arrest rather than some weeks before. Since he had not done
anything wrong on that day, he saw no reason to speak to counsel.
It is only later during the course of the interview when he was
confronted with the allegations in question that he was
sufficiently informed to request to speak to counsel.
[11] I see no merit to the appellant’s submission on this point.
In my view, the trial judge was correct in finding that the
appellant was sufficiently informed of the reason for his arrest
to enable him to make an informed decision whether he wished to
exercise his right to counsel. Having been informed that he was
under arrest for sexual assault, the appellant realized that he
was arrested for a serious offence. The trial judge found him to
be sophisticated, articulate and very familiar with the system.
As stated in R. v. Smith (1991), 1991 91 (SCC), 63 C.C.C. (3d) 313 at 323
(S.C.C.), “the degree of awareness which the accused may be
reasonably assumed to possess in all the circumstances may play a
role in determining whether what the police said was sufficient
to bring home to him the extent of his jeopardy and the
consequences of declining his right to counsel.” It is further
noteworthy that the appellant was aware that he had recently been
found prowling in one of the local hotels and confronted by
security personnel and, as later found by the trial judge, that
he was on the lookout for another victim at the time. In all the
circumstances, it can reasonably be inferred that what the police
told him was sufficient to permit the appellant to make an
informed waiver.
- Consent to giving a blood sample
[12] The appellant submits that the trial judge erred in finding
that he had voluntarily provided a blood sample to the police and
that there was no violation of his s. 8 rights under the Charter.
The appellant submits that, because he did not receive the
benefit of counsel of his choice and did not know that he could
refuse to provide a blood sample, it cannot be said that he gave
an informed waiver of his right to be protected from an
unwarranted search and seizure.
[13] In my view, this argument must fail. The trial judge
instructed himself according to R. v. Wills (1992), 70 C.C.C.
(3d) 529 (Ont. C.A.) at 546 on the prerequisites for a lawful
search and seizure based on consent and based his conclusion on a
number of key findings that accord with the requirements set out
in that decision. More particularly, the trial judge relied on
the nurse’s testimony where she expressed the opinion that the
appellant had given his consent to the taking of blood and that,
if it had been otherwise, she would not have taken the sample.
The trial judge also found that the appellant knew that he could
refuse to provide a sample of blood. Although the trial judge
found that the police did not formally tell the appellant that he
could refuse to provide blood, he found as a fact, based on all
the evidence including the appellant’s demeanour in testifying,
that the appellant “was aware he need not cooperate with the
police at any time”. Hence, I see no basis to interfere with the
trial judge’s conclusion that the appellant voluntarily provided
a blood sample to the police.
- Identification evidence
[14] The appellant submits that the trial judge erred in
concluding that the identification evidence of the complainant
was reliable given the fact that she did not describe a mole on
the appellant’s face and a distinctive tattoo on his forearm.
[15] The trial judge carefully reviewed the evidence bearing on
the significance, or lack thereof, of the complainant’s failure
to describe these two identifying features. In my view, his
conclusion that these matters did not affect the reliability of
her testimony is reasonable and supported by the evidence. It is
also apparent from the trial judge’s reasons that he carefully
considered all of the relevant circumstances bearing on the
identification evidence and that he correctly instructed himself
as to the applicable law. There was an ample basis upon which to
conclude that the identification evidence was reliable.
- DNA evidence
[16] The appellant argues that the DNA evidence was of such
limited value that it should have been rejected entirely from
consideration.
[17] I see no merit to this argument. The trial judge did not in
any way misapprehend this evidence or its limited value. It was
entirely open to him to consider it as one item of circumstantial
evidence and to weigh it in the balance as he did.
- Finding of dangerous offender
[18] The appellant takes the position that the trial judge’s
finding that the appellant was a dangerous offender within the
meaning of s. 753 of the Criminal Code is unreasonable. He
submits that the application of the dangerous offender provisions
is to be confined to a small class of individuals who not only
can be classified as dangerous but also as habitual criminals and
argues that the evidence does not support a finding that Mr.
Eakin is an habitual criminal.
[19] In my view, this argument is ill-founded. The same argument
was advanced at trial and was correctly rejected by the trial
judge. The trial judge held that while the term “habitual
criminal” had played a significant role in the evolution of the
dangerous offender legislation, the relevant question was whether
the evidence established beyond a reasonable doubt that the
appellant was a dangerous offender within any one of the
provisions of s. 753 of the Criminal Code. In this case, the
trial judge found that the test was met under both
s. 753(1)(a)(i) and s. 753(1)(b). These findings were amply
supported by the evidence.
- Appellant’s failure to accept responsibility
[20] Finally, it is submitted that the trial judge erred in
considering the appellant’s failure to accept responsibility as
an important factor in determining both that he was a dangerous
offender and that an indeterminate sentence was appropriate as
opposed to a definite period of incarceration. It is argued that
this consideration, in circumstances such as these where the
offender has defended the case, offends general principles of
sentencing and breaches his right to fundamental justice pursuant
to s. 7 of the Charter.
[21] Counsel for the appellant is quite correct in stating that
an offender’s decision to plead not guilty and defend the matter
cannot be considered as an aggravating factor in sentencing.
However, it is my view that the trial judge did not treat the
appellant’s failure to acknowledge responsibility as an
aggravating factor. The appellant’s failure to acknowledge his
responsibility for the offences and his lack of remorse had an
important bearing on the psychiatric opinions of the experts
called by both the Crown and the defence. It was relevant to the
appellant’s present and future dangerousness to the public and to
his prospects for treatment. The trial judge considered this
factor in the context of assessing this evidence. In my view, it
was not only proper but necessary for him to do so.
[22] For these reasons, I would dismiss the appeal.
(signed) "Louise Charron J.A."
(signed) "I agree M. J. Moldaver J.A."
(signed) "I agree J. C. MacPherson J.A."
Released: May 16, 2000