Her Majesty the Queen v. Nguyen [Indexed as: R. v. Nguyen]

57 O.R. (3d) 589

[2002] O.J. No. 3

Docket No. C24776

Court of Appeal for Ontario

Morden, Carthy and Moldaver JJ.A.

January 8, 2002

Charter of Rights and Freedoms -- Fundamental justice -- Self-incrimination -- Accused charged with murder in course of sexual assault -- Accused refusing to provide bodily samples for DNA testing -- Uniformed police officers tricking accused by offering gum and retrieving it after accused discarded gum -- Accused not persuaded or pressured into taking or discarding gum -- Accused discarding gum before court and return to jail knowing he was not to have gum in either location -- Trial judge erring in holding accused relinquished privacy interest by disposing of gum -- Seizing gum without warrant violating accused's s. 8 rights -- No improper subversion of accused's decision not to provide samples -- DNA sample derived from gum not conscriptive -- Accused's rights under s. 7 of Charter not violated -- Despite minor s. 8 violation trial judge correct in holding that DNA derived from gum admissible -- Appeal from conviction dismissed -- Canadian Charter of Rights and Freedoms, ss. 7, 8.

Charter of Rights and Freedoms -- Search and seizure -- Exclusion of evidence -- Accused charged with murder in course of sexual assault -- Accused refusing to provide bodily samples for DNA testing -- Uniformed police officers tricking accused by offering gum and retrieving it after accused discarded gum -- Accused not persuaded or pressured into taking or discarding gum -- Accused discarding gum before court and return to jail knowing he was not to have gum in either location -- Trial judge erring in holding accused relinquished privacy interest by disposing of gum -- Seizing gum without warrant violating accused's s. 8 rights -- No improper subversion of accused's decision not to provide samples -- DNA sample derived from gum not conscriptive -- Police acting in good faith seeking legal advice before implementing trick -- Seizure of discarded gum not interfering with accused's bodily integrity -- Police could have obtained warrant to seize discarded gum -- Charge very seriou s and exclusion of evidence would bring administration of justice into disrepute -- Canadian Charter of Rights and Freedoms, s. 8.

Criminal law -- Trial -- Charge to the jury -- Reasonable doubt -- Erroneous pre-Lifchus instruction that words reasonable doubt to be given ordinary, natural meaning rather than a special legal connotation -- Jury not told that criminal burden of proof substantially higher than civil standard -- Charge to jury properly linking reasonable doubt and the presumption of innocence and stressing high burden upon Crown in circumstantial case -- Jury would not have been misled about proper standard of proof -- Appeal from conviction dismissed.

Criminal law -- Evidence -- Confessions and admissions -- Voluntariness -- Voir dire conducted regarding alleged s. 10(b) Charter breach but no explicit reference to voluntariness until most of statement before jury -- Defence counsel stating no objections to earlier portions of statement but raising concern about voluntariness based on alleged threat once heard statement read aloud -- Without holding voir dire trial judge holding that statement voluntary -- Error failing to hold voir dire regarding voluntariness once raised but error harmless -- Even if statement had not been admitted evidence overwhelming and verdict would necessarily have been the same -- Appeal from conviction dismissed -- Canadian Charter of Rights and Freedoms, s. 10(b).

The accused was charged with first-degree murder. The deceased was sexually assaulted and beaten to death. Seminal fluid retrieved from her vagina was later shown through DNA testing to match the accused. Following his arrest, the accused refused, on the advice of counsel, to provide bodily samples. The police formulated a plan to circumvent the accused's refusal and obtain his DNA. While he was being transported to and from the court house, he was twice offered chewing gum by a police officer. He was not pressured or persuaded to take the gum. Each time he accepted it, chewed it, and discarded it. The gum was retrieved and submitted for DNA analysis. The trial judge ruled that the gum was not obtained in a manner that violated the accused's rights under s. 7 or s. 8 of the Canadian Charter of Rights and Freedoms and that the DNA evidence derived from the gum was admissible. Shortly after that ruling was released, the (then) newly proclaimed DNA warrant provisions were used to obtain a sample of t he accused's blood, pursuant to s. 487.05 of the Criminal Code, R.S.C. 1985, c. C-46. This warrant was obtained after the trial judge had ruled that other evidence obtained from the accused (a written statement, dental impressions and various bodily samples) was inadmissible as it was obtained in violation of the accused's right under s. 10(b) of the Charter. The adverse s. 10(b) ruling was disclosed to the judge who issued the DNA warrant. The trial judge admitted the DNA evidence derived from the blood sample obtained using the warrant. The accused was convicted. He appealed.

Held, the appeal should be dismissed.

The police did not improperly elicit the gum samples from the accused. As the trial judge noted, the officers carrying out the trick were obviously police and purported to be nothing else; the subterfuge involved no active deception, unfairness, threats, promises or coercion; and nothing was done to actively elicit the accused into accepting, chewing, returning or discarding the gum. The trick was entirely passive and was not objectionable. The accused's bodily integrity was not violated when the samples were collected and the gum samples were not conscriptive evidence. The accused's s. 7 rights under the Charter were not violated by the trick.

The accused knew that he could not chew gum in court and that gum was an unauthorized item in the detention centre. As a result, the accused concluded that he had to dispose of the gum before entering the court and, later, the jail. In these circumstances, the learned trial judge erred in holding that the accused had relinquished his privacy interests when he discarded the gum. Its warrantless seizure was a violation of the accused's s. 8 rights under the Charter. In determining whether the DNA derived from the gum should be excluded pursuant to s. 24(2) of the Charter, the key issue was determined by the trial judge's finding that the gum samples were not improperly elicited. The gum was non-conscriptive evidence, its seizure did not interfere with the accused's bodily integrity, the police acted in good faith at a time when the law about abandonment in s. 8 cases was unclear and they could have retrieved the discarded gum using a search warrant. Given these factors and the seriousness of the offence, the exclusion of the evidence would bring the administration of justice into disrepute. The trial judge did not err in ruling the DNA evidence derived from the gum admissible.

The trial judge properly rejected the defence argument that the blood sample taken pursuant to the DNA warrant was inadmissible because it was causally linked to the earlier violation of the accused's s. 10(b) Charter rights. On appeal, the accused argued that had the judge who issued the warrant known that, in the violation of his s. 10(b) rights, the police also violated N's s. 8 rights by seizing the gum sample without a warrant, he would not have issued the DNA warrant because he would not have been satisfied that it was in the best interests of the administration of justice to do so under s. 487.05 of the Code. There was no merit to that argument. Even if a pattern of wilful and flagrant misconduct on the part of the police could lead a judge to deny a DNA warrant on this basis, this was not such a case. The s. 8 Charter violation upon which the accused relied to tip the scales was not serious.

On the day of his arrest, the accused made a statement to the police. Part of that statement ("the morning statement") was made before his arrest. The second part ("the afternoon statement") was made after his arrest. The accused alleged that the statements were in violation of the accused's rights under s. 10(b) of the Charter. The trial judge excluded the afternoon statement but refused to exclude the morning statement. The investigating officer had completed reading most of the morning statement into the record in the presence of the jury when defence counsel noticed a comment that caused her to raise, in the absence of the jury, whether a particular comment constituted a threat. The trial judge then realized that he had not dealt with the issue of voluntariness in the context of his comprehensive s. 10(b) ruling. Without conducting a voir dire, he ruled that the impugned statement was not a threat. Given defence counsel's concession that she had no concerns about voluntariness until she heard the alleged threat read aloud, there was no basis for questioning the admissibility of the morning statement up to that point. Moreover, the trial judge made it clear, in his subsequent remarks, that he had been alive to the issue of voluntariness as the statement was being read in and did not consider voluntariness to be a problem. Although he still should have conducted a voir dire, this was a harmless error. The evidence against the accused was overwhelming and the verdict would have been the same even if the statement had been excluded.

The charge to the jury in this case predated R. v. Lifchus. The trial judge should not have instructed the jury that when he spoke of reasonable doubt he used the words in their ordinary, natural meaning, not as a legal term having some special connotation. Moreover, he should have made it clear that the criminal standard of proof was substantially higher than the civil burden of proof. However, these deficiencies were overcome by the fact that the charge as a whole was fair, balanced and otherwise error-free, it properly linked the criminal standard of proof with the presumption of innocence, and it contained three separate specific instructions on the high onus the Crown must meet to discharge its burden in a circumstantial case such as this one. In these circumstances, the jury would not have been misled as to the proper standard of proof.

APPEAL from a conviction on a charge of first-degree murder.

R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Stillman, [1997] 1 S.C.R. 607, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1, apld R. v. Lifchus, [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1, consd Other cases referred to R. v. Broyles, [1991] 3 S.C.R. 595, 84 Alta. L.R. (2d) 1, 131 N.R. 118, [1992] 1 W.W.R. 289, 8 C.R.R. (2d) 274, 68 C.C.C. (3d) 308, 9 C.R. (4th) 1; R. v. Feeley (2001), 55 O.R. (3d) 481, 156 C.C.C. (3d) 449 (C.A.); R. v. Hebert, [1990] 2 S.C.R. 151, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; R. v. LaBrecque (2001), 56 O.R. (3d) 97, [2001] O.J. No. 3993 (C.A.); R. v. Rhee (2001), 2001 SCC 71, 158 C.C.C. (3d) 129 (S.C.C.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 10(b), 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 487.01, 487.04-487.09, 487.05

Sharon Levine and Peter Copeland, for appellant. Michal Fairburn, for respondent.

[1] BY THE COURT: -- The appellant appeals from his conviction for first-degree murder. He raises the following four grounds of appeal in support of his bid for a new trial:

(1) The trial judge erred in admitting DNA evidence derived from chewing gum offered to the appellant by the police during his detention in custody and seized by the police without a warrant after the appellant had discarded it.

(2) The trial judge erred in admitting DNA evidence derived from a sample of the appellant's blood obtained by the police pursuant to a DNA warrant under s. 487.05 of the Criminal Code, R.S.C. 1985, c. C-46.

(3) The trial judge erred in admitting into evidence a statement made by the appellant to the police without first holding a voir dire to determine the issue of voluntariness; and

(4) The trial judge failed to properly instruct the jury on the definition of reasonable doubt.

Overview

[2] The deceased, Phuong Tran, was a distant cousin of the appellant. From the beginning of September 1993 to Sunday, November 21, 1993, they shared a one-bedroom apartment in London. Phuong used the bedroom and the appellant slept on a cot in the living room.

[3] At around 2:00 a.m. on Saturday, November 20, 1993, the appellant entered Phuong's bedroom and asked to kiss her, stating that he thought she was beautiful and that he could not control himself. Phuong soundly rejected his advance and the appellant left her room. Ten minutes later, he returned with a knife and threatened to commit suicide unless Phuong promised not to tell anyone about the incident. Phuong refused to make any such promise.

[4] Later that day, family and friends gathered at Phuong's apartment and in the presence of the appellant, Phuong disclosed the appellant's improper behaviour. The appellant admitted that he was ashamed for what he had done and it was agreed that he would move out of the apartment the next day.

[5] Over the course of the following two days (Sunday, November 21 and Monday, November 22), the appellant attempted to gain entry into Phuong's apartment on numerous occasions in order to retrieve his clothing and other personal items. On each occasion, he was refused entry by Phuong. On Monday the 22nd, at around 11:00 p.m., while speaking to a friend on the phone, Phuong stated that the appellant had last been at her door around 9:00 p.m. That was Phuong's last reported conversation with anyone.

[6] On Tuesday, November 23, Phuong failed to attend school and when various friends and family could not reach her by phone, her brother and a friend attended at her apartment just before midnight. Upon entering, they discovered Phuong's lifeless body on the bedroom floor. She was wrapped in a blanket and dressed in clothing that she would not have worn to school. This led the police to believe that she had been killed some time before Tuesday morning. As it happens, no one could account for the appellant's whereabouts between 10:00 p.m. on Monday night and 3:30 a.m. on Tuesday morning.

[7] An autopsy performed on Phuong revealed that she had been sexually assaulted and brutally beaten to death. Among other injuries, a bite mark was found on her face. Seminal fluid retrieved from her vagina was later shown through DNA testing to match the appellant. Given that the appellant and the deceased were not romantically involved, that evidence, along with other circumstantial evidence implicating the appellant in the killing, including motive, opportunity and after-the-fact conduct consistent with guilt, added up to a formidable case against the appellant.

[8] The appellant did not testify at trial. However, in a statement given to the police on the morning of his arrest, he denied killing Phuong and claimed that he was with friends during the time frame within which she was killed.

Ground 1: Admissibility of DNA Results from Chewing Gum

[9] On the morning of November 24, 1993, the appellant was arrested and charged with first-degree murder in connection with the death of Phuong Tran. The arrest came in the middle of a lengthy interrogation of the appellant by the police at the police station (the morning statement). Upon his arrest, the appellant was informed of his s. 10(b) [Canadian Charter of Rights and Freedoms] right to counsel. At that time, he indicated that he did not wish to contact a lawyer and the interrogation continued. [See Note 1 at end of document] Later that afternoon, the appellant changed his mind about retaining counsel. Through miscommunication, two officers who met with him and obtained a written statement, dental impressions and various bodily samples for DNA testing (the afternoon evidence), were not notified of this change. Accordingly, for reasons that need not be detailed, the appellant moved successfully at the outset of his trial to have the afternoon evidence excluded on the basis that it had been obtained in violation of his s. 10(b) right to counsel and that its admission could bring the administration of justice into disrepute. That ruling, which initially took the form of a brief endorsement, was issued on April 19, 1995.

[10] At this juncture, the trial was put over for two weeks to May 3 to enable the Crown to bring a motion to adjourn the trial. The adjournment was being sought because the Crown wished to apply for a general warrant under s. 487.01 of the Code to obtain bodily samples and dental impressions from the appellant.

[11] Prior to the May 3 return date, the police, in consultation with a senior Crown Attorney, formulated a plan to obtain the appellant's DNA. The plan was simple and admittedly designed to circumvent the appellant's refusal, on the advice of counsel, to provide bodily samples. It involved offering the appellant a piece of chewing gum while in the police cruiser en route to and from the courthouse.

[12] On May 3, the plan was put into effect and it worked. The police were able to obtain the appellant's DNA from two pieces of gum which he accepted, chewed and then discarded. The details of the plan and the trial judge's findings in relation to it are found in the trial judge's ruling, dated August 11, 1995, in which, over the objection of the defence, he held that the DNA evidence derived from the gum samples was admissible:

Before application for the warrant was made, investigators conceived and carried out a plan to provide opportunity to obtain epithelial cells from the accused's mouth for DNA analysis. The plan was intended to circumvent the accused's refusal on the advice of counsel to provide bodily samples. Investigators knew the accused was not required to provide such samples and that any consent by him was ineffective unless fully informed.

The plan involved the accused chewing and discarding gum while in custody, either in the detention centre, a police car, or the court house. The ploy was to be implemented incidental to a court appearance on this charge of first degree murder.

Two female police officers were selected to transport the accused in an attempt to create an atmosphere conducive to acceptance of the gum. The officers were to respond if spoken to and were to participate in conversation unrelated to the case. The sliding window into the back seat of the police car was left open for this purpose. Gum was to be offered, officer to officer, accepted, and then offered to the accused. Acceptance by the accused was to be voluntary. The officers were not to suggest, persuade or insist. They were neither to ask for the return of the chewed gum, nor to suggest the accused discard it. If the accused swallowed the gum or put it in his pocket, nothing was to be done. If the gum was discarded, they were to retrieve it.

The toilet bowl in the court house security cell was drained. Paper towelling was placed to catch anything dropped in the bowl. A clean waste basket was placed outside the cell to provide another opportunity for the accused to deposit the gum. I find the following facts:

(1) On May 1, 1995, in the course of transportation by two female uniformed London Police officers in a marked police car from the Detention Centre to the court house for remand on this charge, the accused was offered a stick of chewing gum.

(2) Entirely independent of police suggestion or inducement other than the offer, the accused voluntarily accepted and chewed the gum.

(3) While the accused was in a holding cell, he voluntarily and entirely independent of police action or inducement, discarded the chewed gum in the "dry" toilet bowl.

(4) That gum, which was immediately retrieved with latex gloves and a sterile vial, was submitted for DNA analysis.

(5) As the accused left the cell en route to court, a security constable who was unaware of the plan asked in the course of his normal duty, if he had anything in his mouth. The accused replied that he had "spit it out".

(6) On the return trip to the Detention Centre, the accused was offered and voluntarily and entirely independent of police suggestion or inducement other than the offer, accepted and chewed a second stick of gum.

(7) The accused knew gum was an unauthorized item in the Detention Centre.

(8) Upon arrival at the Detention Centre, the accused voluntarily and entirely independent of police suggestion or inducement discarded the chewed gum in a trash can in the security garage.

(9) That gum was retrieved and submitted for DNA analysis.

(10) The accused removed the gum from his mouth and abandoned it in each instance because of his perception that gum was not appropriate either in court or in the Detention Centre.

(11) Had the accused been detected with gum in the Detention Centre readmission process, he would have been required to dispose of it without penalty.

(12) The police officers presented the opportunity for the accused to unwittingly circumvent his decision not to supply bodily samples. They extended neither encouragement nor persuasion.

(13) The accused did not know chewed gum could provide bodily material suitable for DNA analysis. Had he known, he would not have accepted the gum.

(14) The trick was premised on the accused's ignorance or oversight about possible consequences flowing from abandoning chewed gum.

(15) The gum was not seized pursuant to warrant.

(16) The accused did not consent to the gum being seized.

[13] The trial judge approached the question of admissibility from two perspectives. First, he considered whether the plan and its implementation involved a breach of the appellant's "residual s. 7 Charter protection against self- incrimination". Second, he considered whether the seizure of the discarded gum constituted a violation of the appellant's right to privacy under s. 8 of the Charter. In the end, he concluded that the gum was not obtained in a manner that violated the appellant's rights under either s. 7 or s. 8 of the Charter. Hence, he ruled that the DNA evidence derived from the gum was admissible.

[14] With respect to s. 8, the trial judge found that the police did not need a warrant to seize the discarded gum because, having discarded it, the appellant could no longer claim a privacy interest in it. Accordingly, in his view, s. 8 was not triggered. That analysis, though reasonable at the time, did not find favour with the Supreme Court of Canada in R. v. Stillman, [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321. Writing for the majority, Cory J. stated the following at p. 648 S.C.R., p. 348 C.C.C.:

Thus, where an accused who is not in custody discards a kleenex or cigarette butt, the police may ordinarily collect and test these items without any concern about consent. A different situation is presented when an accused in custody discards items containing bodily fluids. Obviously an accused in custody cannot prevent the authorities from taking possession of these items. Whether the circumstances were such that the accused had abandoned the items and relinquished any privacy interest in them will have to be determined on the particular facts presented in each case.

[15] With her usual candour, Ms. Fairburn for the Crown concedes that in the circumstances of this case, it cannot be argued that in discarding the gum, the appellant relinquished his privacy interest in it. Accordingly, she accepts that the warrantless seizure of the gum by the police constituted a violation of his s. 8 Charter rights.

[16] Nonetheless, Ms. Fairburn maintains that the DNA evidence derived from the gum should be received in evidence under s. 24(2) of the Charter because:

-- the gum was non-conscriptive evidence;

-- the seizure did not interfere with the appellant's bodily integrity, nor did it cause him any loss of dignity;

-- the police were acting in good faith, in consultation with Crown counsel, at a time when the law regarding the reach of s. 8 in cases of abandonment was unclear;

-- that the police could, and no doubt would have retrieved the discarded gum by obtaining a search warrant authorizing its seizure; and

-- given the seriousness of the offence and the importance of the DNA evidence, its exclusion would manifestly bring the administration of justice into serious disrepute.

[17] On behalf of the appellant, Ms. Lavine, subject to one aspect of it, generally accepts the submissions made by Ms. Fairburn in respect of s. 24(2). She takes issue with Ms. Fairburn's characterization of the gum as "non-conscriptive" evidence. In her opinion, the gum should be classified as "conscriptive" evidence because it emanated from the appellant during the execution of a trick orchestrated by the police and it did not exist in a form usable by the state prior to the implementation of the trick. Accordingly, Ms. Lavine submits that the DNA evidence derived from the gum should have been excluded because its admission rendered the trial unfair.

[18] In our view, the resolution of this issue hinges on whether the police improperly elicited the gum samples from the appellant. The trial judge addressed this issue, albeit in the context of a s. 7 Charter inquiry designed to determine whether the trick used by the police amounted to an improper subversion of the appellant's decision, on the advice of counsel, not to provide bodily samples to the police.

[19] The trial judge gave extensive reasons for concluding that the conduct of the police did not subvert or violate the appellant's s. 7 Charter rights. Applying a similar analysis to that endorsed by the Supreme Court of Canada in cases such as R. v. Hebert, [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1 and R. v. Broyles, [1991] 3 S.C.R. 595, 68 C.C.C. (3d) 308, [See Note 2 at end of document] the trial judge's reasons, in their essence, are found in the following passages from his ruling:

State subterfuge does not equate to improper active elicitation. Hebert [supra] did not prohibit deception. State tricks which would effectively deprive the suspect of the constitutional right to choose whether to speak to police must be excluded. Otherwise Hebert reaffirms the investigative right to encourage the suspect by legitimate means to provide evidence.

Is the trick of offering gum to the accused in the expectation that it would be discarded, objectionable as an act of elicitation by the state causing subversion of a constitutional right? Elicitation is considered in R. v. Broyles at page 320 by Iacobucci J. as follows:

In my view, it is difficult to give a short and precise meaning of 'elicitation', but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused as to answer the question, 'Considering all of the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused?

Was the relationship between the two police officers and the accused such that police conduct was causally linked to the accused discarding the chewed gum? The officers carrying out the trick were obviously police. They purported to be nothing else. No unlawful conduct was directed toward the accused or anyone else. The subterfuge involved no active deception, unfairness, threats, promises, or coercion. There was neither inducement nor persuasion apart from making gum available. Nothing was done to actively elicit the accused accepting, chewing, returning or discarding the gum.

Availability of the gum either caused the accused to provide the evidence as the defence contends, or created an opportunity for the accused to provide the evidence as the Crown contends. The fallacy in the former proposition is demonstrated by consideration of the accused's options. He could decline the offer. He could accept the gum to chew later, to present to a friend, to retain, conceal and use for some unauthorized scheme at the Detention Centre, or to chew and swallow as is often done by witnesses.

The ploy is not objectionable. The trick was entirely passive. The passive element was analogous to placing an undercover officer in a cell with an accused for no purpose but to listen, thereby opportunity for the accused to speak to someone is provided. By offering gum, police created opportunity. Whether anything resulted depended on the accused. His actions following acceptance were entirely of his own volition. The choice to accept, chew and discard the gum closely parallel McLachlin J.'s statement in Hebert at page 42:

If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform police.

Police resort to this trick is not disqualified as a dirty trick, one "that shocks the community." DNA evidence has a potential for impactive trial consequences relating to identification. It would be more probable that public consciousness would be shocked if upon a charge of first degree murder no further investigative attempt was made to marshall such significant evidence.

This is no more than police acting, in the words of Finlayson J.A. in Johnston [(1991) 64 C.C.C. (3d) 233 (Ont. C.A.)], in "the duty of the state to continue an investigation into a shocking crime." The accused's declaration that he will not provide bodily samples does not equate to an order restraining further investigative procedures. The accused has no constitutional right to end that phase of the investigation.

[20] In our view, the factors considered by the trial judge in his s. 7 analysis and the findings made by him are determinative of the issue at hand. In short, we agree, for the reasons given by the trial judge, that the trick used by the police to obtain the gum samples was acceptable and it did not amount to an improper subversion of the appellant's decision not to provide bodily samples to the police. Accordingly, we reject the appellant's submission that the gum samples should be characterized as conscriptive evidence.

[21] As for the s. 8 violation which, in light of Stillman, supra, Ms. Fairburn has conceded, we agree, for the reasons outlined by her at para. 16 above, that the DNA evidence derived from the gum samples was properly admissible under s. 24(2).

[22] Accordingly, we would not give effect to this ground of appeal.

Ground 2: Admissibility of DNA Evidence Derived from Appellant's Blood Sample

[23] During the latter part of May and the beginning of June 1995, the parties were busy litigating two issues, one relating to the Crown's application for a general warrant, the other to the admissibility of the DNA evidence derived from the chewing gum. In mid-June, the appellant applied for bail and, on June 30, 1995, his application was dismissed. At that time, it was agreed that the trial would be postponed until November 6, 1995. In the interim, it was expected that the trial judge would deliver his rulings on the aforementioned issues.

[24] On August 11, 1995, the trial judge delivered his reasons on the admissibility of the DNA evidence derived from the chewing gum and the propriety of the general warrant sought by the Crown. As indicated, he found that the gum was obtained in a manner that did not violate the appellant's Charter rights. With respect to the general warrant, he found that it too was proper and that it could be used to obtain the appellant's dental impressions, but only if the authorities did not use force in the process. In other words, without the appellant's compliance, the impressions could not be made.

[25] On July 13, 1995, pending the outcome of the gum and general warrant issues, the DNA search warrant legislation (ss. 487.04 to 487.09 of the Criminal Code) was proclaimed in force. For present purposes, the relevant provision is s. 487.05(1). It reads as follows:

487.05 (1) A provincial court judge who on ex parte application made in Form 5.01 is satisfied by information on oath that there are reasonable grounds to believe

(a) that a designated offence has been committed,

(b) that a bodily substance has been found or obtained

(i) at the place where the offence was committed,

(ii) on or within the body of the victim of the offence,

(iii) on anything worn or carried by the victim at the time when the offence was committed, or

(iv) on or within the body of any person or thing or at any place associated with the commission of the offence,

(c) that a person was a party to the offence, and

(d) that forensic DNA analysis of a bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person

and who is satisfied that it is in the best interests of the administration of justice to do so may issue a warrant in Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1).

[26] In light of this, on August 15, 1995, four days after the release of the trial judge's rulings, the Crown applied for a DNA warrant. In support of the warrant, Detective Constable Goodine of the London police prepared and swore a 32-page affidavit setting out in detail the facts and circumstances surrounding the murder of Phuong Tran, including the finding of seminal fluid in her vagina, the DNA evidence from the chewing gum linking the appellant to that fluid, and other evidence implicating the appellant in the crime. The affidavit also disclosed the trial judge's earlier ruling in which he had refused to admit the bodily samples obtained from the appellant on the day of his arrest due to a breach of his s. 10(b) rights by the police. Insofar as the gum sample was concerned, the affidavit noted that the trial judge's ruling on the "admissibility of the gum is still subject to appeal" and that the blood sample being sought would likely provide more accurate DNA information than that already obtained from the gum sample. In short, the issuing judge was provided with an accurate and detailed summary of the salient facts. Based on this information, the warrant was issued on August 15, 1995 and executed the next day.

[27] At trial, the defence did not contest the validity of the DNA warrant. Rather, the admissibility of the blood sample was challenged on the basis that it was causally linked to the earlier violation of the appellant's s. 10(b) rights. The trial judge, in our view, properly rejected that argument and ruled that the blood sample and the DNA evidence derived from it were admissible.

[28] On appeal, the appellant does not seek to resurrect the causal link argument. Rather, he submits that had the issuing judge known that in addition to violating his s. 10(b) rights, the police also violated his s. 8 rights by seizing the gum sample without a warrant, he would not have issued the DNA warrant because he would not have been "satisfied that it is in the best interests of the administration of justice to do so" under s. 487.05.

[29] With respect, we see no merit in that argument. Assuming, without deciding, that a pattern of wilful and flagrant misconduct on the part of the police could lead a judge to deny a DNA warrant on the ground that it would be contrary to the best interests of justice to do so, this is not such a case. The s. 8 violation, upon which the appellant relies to tip the scales, was not serious. As indicated, the seizure of the gum samples did not interfere with the appellant's bodily integrity, nor did it cause him any loss of dignity. In doing what they did, the police were acting in good faith on the advice of senior Crown counsel at a time when the law of abandonment and its relationship to s. 8 of the Charter was at best uncertain. In these circumstances, it is fanciful to think that the issuing judge would not have issued the warrant had he known of the s. 8 violation. Accordingly, we would not give effect to this ground of appeal.

Ground 3: The Admissibility of Appellant's Statement to the Police

[30] On the morning of November 24, 1993, following the discovery of Phuong Tran's body in her apartment, the police transported the appellant to the police station for questioning. The appellant was not under arrest and according to the police, he went willingly.

[31] At the station, the appellant was interviewed from 7:29 a.m. to 11:33 a.m. (the morning statement). At 10:19 a.m., as a result of information gathered by other police officers, the appellant was arrested for first-degree murder, cautioned and informed of his s. 10(b) right to counsel. After indicating that he understood his rights and that he did not wish to speak to counsel, the interview continued until 11:33 a.m.

[32] In a pre-trial motion, the admissibility of the morning statement was challenged on the basis that it had been obtained in a manner that violated the appellant's s. 10(b) rights. The trial judge rejected that submission and the appellant is not pursuing it on appeal. Rather, he submits that the trial judge erred in admitting the morning statement without holding a voir dire to determine the issue of voluntariness.

[33] The morning statement was audiotaped and transcribed. In typewritten form, it comprises some 261 pages. With respect to the issue of voluntariness, it appears from the record that no one adverted to it until the investigating officer had completed reading most of the morning statement into the record in the presence of the jury. At that time, when the officer was at p. 255, defence counsel (not Ms. Lavine or Mr. Copeland) noticed, presumably for the first time, a comment made by the investigating officer to the appellant namely, that if he [the appellant] did not wish to tell his side of the story, he was going to be taken "down to the cells now". Upon hearing that comment read out in open court in the presence of the jury, defence counsel asked that the jury be excused. She then made this submission to the trial judge:

[Defence Counsel]: Yes, Your Honour. The area of concern that I have with respect to the last portion that Sergeant Carter was reading to us and I understand when we did the voir dire -- or I should say when [co-counsel] basically conducted the voir dire with respect to the admissibility of things and one of them was the statement, that was concentrated on was the issue under the Charter of Rights and Freedoms. What was not canvassed to my understanding, and I believe I was here but it was a while ago, was the voluntariness of the statement. Now, up to now I haven't had concerns about the voluntariness of the statement. That certainly was canvassed in terms of -- well, at the motions that Mr. Nguyen went in the police cruiser, but he went voluntarily and he was free to leave, et cetera.

But now what we have in this particular portion of the statement, as I see it, is "If you don't want to tell me your side of the story then I'm going to lead you down to the cells". In other words, that may be interpreted, in my respectful submission, as a threat. "You're going to stay incarcerated unless you tell me your side of the story". So the continuation of the statement from then on, in my submission, with respect to voluntariness may not be admissible.

[34] This interchange was followed by a discussion amongst the parties and the trial judge as to whether the issue of voluntariness had not already been dealt with in the context of the trial judge's comprehensive s. 10(b) ruling. Upon reviewing that ruling, the trial judge realized, to his surprise, that it had not. He then gave the following ruling in response to defence counsel's request for a voir dire to determine the issue of voluntariness:

[Defence counsel], on the strength of that sentence as I understand your argument to be, I am unable to conclude that it is a threat within the context of Ibrahim [[1914] A.C. 599]. It seems to me to be equally compatible with the interpretation that "If you haven't any more to say, your side of the story, the interview is over, you are an arrested man and the place for you is in the cell" and I view it in that context.

[35] The trial continued and the officer completed reading in the remainder of the morning statement. The jury was then excused for a recess and the trial judge made the following remarks:

THE COURT: [Defence counsel] just with respect to the point you raised about the voluntariness, I had, as this statement was read in, considered different things. On page 71, I made the notation just for my own benefit, defence not introducing character evidence, Crown is leading the evidence and so on that I just, for my own reference. At page 77 I saw -- or no, excuse me. 88, I saw a reference to the death penalty and I thought the usual instruction to the jury about that not being relevant to their considerations perhaps ought to be reinforced.

At page 94, and this is just an example of something I found continued at different times throughout the questioning. It's really close to what you picked up. "If you continue to lie like this, there's nothing for you". I wondered how close that was to inducement or something and -- but I obviously decided it wasn't as I let the matter go, but at 90 -- at 103, again, at the top of the page, "You're not doing yourself any good". I was thinking in the same terms in that context. But the reason I draw this to your attention is if there are matters that arise from this transcript that require special instruction, I'll be grateful to counsel for the assistance that I get in that respect.

Finally, just as a generality, through the reading of the statement, I was conscious of the confrontational tone, "I don't believe you, and I don't believe you for this reason and that reason", and I can't think of the two case names. One of them is Ward and the other one is a companion that's always associated with it and begins with it, it begins with M, but it's the psychological breaking down of the accused and I thought this was confrontational, but it wasn't any psychological breaking down and the proof of the pudding is he didn't break down.

[36] In oral argument, Mr. Copeland for the appellant fairly conceded that when defence counsel first raised the issue of voluntariness with the trial judge, her submission that "up to now [p. 255 of the transcription] I haven't had concerns about the voluntariness of the statement" amounted to a belated admission of voluntariness in respect of everything that proceeded the impugned comment at p. 255. We see no reason to question that concession. Accordingly, there is no basis for questioning the admissibility of the morning statement up to p. 255. In that regard, we find it reassuring that despite defence counsel's failure to raise the voluntariness issue in a timely fashion, the trial judge made it clear, in his subsequent remarks reproduced above, that he had been alive to the issue of voluntariness as the statement was being read-in and despite some tentative reservations, he did not consider voluntariness to be a problem. The trial judge was uniquely positioned to make that assessment and we see no reason to question his conclusion.

[37] With respect to the remainder of the morning statement, that is, from p. 255 to the end, we think that in light of defence counsel's objection, the trial judge should have conducted a voir dire to determine whether the impugned comment about returning the appellant "to the cells now" amounted to a threat. That said, to the extent the failure to hold a voir dire amounted to error, we are satisfied that the error was harmless and that the verdict would necessarily have been the same even if the balance of the statement following p. 255 had been excluded.

[38] In so concluding, we acknowledge that in his closing address to the jury, Crown counsel referred to two answers given by the appellant after the alleged threat at p. 255 and he invited the jury to infer from those answers that the appellant must have killed Phuong Tran because he knew, prior to the information being disclosed, that she had been beaten to death. There are however, two reasons for treating the matter as one of harmless error.

[39] First, the answers to which the Crown was referring do not, in our view, bear out the inference suggested by the Crown and this would have been obvious to the jury. In effect, Crown counsel was inviting the jury to speculate, something the trial judge warned against in his charge.

[40] Second, even if the jury did consider the appellant's answers as indicative of knowledge and hence guilt, this was but a small item in an otherwise overwhelming circumstantial case against the appellant. Without it, the verdict of the jury would inevitably have been the same. Accordingly, we would not give effect to this ground of appeal.

Ground 4: Definition of Reasonable Doubt

[41] The charge in this case predated R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1. Accordingly, the impugned instruction must be viewed in that context.

[42] Before defining the term reasonable doubt in his charge, the trial judge provided the jury with clear instructions on the presumption of innocence and he explained that the burden of proof rested with the Crown and it never shifted. He then defined the term reasonable doubt as follows:

What is reasonable doubt? It's rarely possible to prove anything with absolute certainty so the burden of proof on the Crown is only to prove guilt beyond reasonable doubt. When I speak of reasonable doubt I use the words in their ordinary, natural meaning, not as a legal term having some special connotation. A reasonable doubt is an honest and a fair doubt based upon reason and common sense. It's a real doubt, not an imaginary or frivolous doubt that we might conceive to avoid the unpleasant responsibility of having to convict someone.

[43] Importantly, because the case against the appellant rested entirely on circumstantial evidence, the trial judge, on no less than three separate occasions, instructed the jury that in order for the Crown to meet its burden, they had to be satisfied beyond a reasonable doubt that the appellant's guilt was the only reasonable inference to be drawn from the proven facts. One such instruction is found at pp. 1459 and 1460:

. . . In circumstantial evidence, the additional uncertainty is whether the correct inference has been drawn. Those inferences must not be guesses. They must not be speculation. They must be rational inferences based on proven facts.

With respect to circumstantial evidence, the Crown does not discharge the burden of proof beyond reasonable doubt unless you are satisfied beyond reasonable doubt that the only reasonable inference to be drawn from the proven facts is the guilt of the accused.

[44] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449, at p. 265 S.C.R., p. 543 C.C.C., Iacobucci J. for the majority observed that when appellate courts are called upon to review "a pre-Lifchus jury charge", they "must examine it to make sure that it was in substantial compliance with the principles set out in that case". When the instructions in this case, considered as a whole, are measured against that yardstick, we are satisfied that the "substantial compliance" test has been met.

[45] Manifestly, in light of Lifchus and its progeny, the trial judge should not have told the jury that they were to consider the words reasonable doubt "in their ordinary, natural meaning, not as a legal term having some special connotation". Moreover, he should have made it clear that the criminal standard of proof was substantially higher than the civil burden of proof. In our view however, those deficiencies are overcome by the fact that the charge as a whole was fair, balanced and otherwise error-free, it properly linked the criminal standard of proof with the presumption of innocence and it contained three separate specific instructions on the high onus the Crown must meet to discharge its burden in a circumstantial case. [See Note 3 at end of document] In these circumstances, we are confident that the jury would not have been misled as to the proper standard of proof. (See R. v. Feeley (2001), 55 O.R. (3d) 481, 156 C.C.C. (3d) 449 (C.A.) per MacPherson J.A. for the majority and R. v. Rhee (2001), 2001 SCC 71, 158 C.C.C. (3d) 129 (S.C.C.). Accordingly, we would not give effect to this ground of appeal.

Conclusion

[46] The appellant received a fair trial and the verdict of first degree murder was eminently reasonable on the evidence properly admissible against him. Indeed, in our view, it was inevitable. To the extent that the trial judge erred in his s. 8 Charter analysis in relation to the chewing gum and in his failure to hold a voir dire on the issue of voluntariness with respect to the tail end of the appellant's morning statement, the errors were harmless and occasioned no substantial wrong or miscarriage of justice. Accordingly, we would uphold the conviction for first-degree murder and dismiss the appeal.

Appeal dismissed.

Notes

Note 1: Before us, the appellant does not raise a Charter challenge to the admissibility of the morning statement. He does, however, submit that it should not have been admitted into evidence because it was not proven to be voluntary.

Note 2: Both cases involve statements made to undercover police officers or police agents and each focuses on the detainee's right to silence under s. 7 of the Charter.

Note 3: The specific instruction on the burden to be met in a circumstantial case is a factor that distinguishes this case from R. v. LaBrecque (2001), 56 O.R. (3d) 97, [2001] O.J. No. 3993 (C.A.).