Court of Appeal for Ontario

Date: 2004-05-21 Docket: C35495

Re: HER MAJESTY THE QUEEN (Respondent) – and - ALVIN JAMES (Appellant)

Before: ROSENBERG, GILLESE and ARMSTRONG JJ.A.

Counsel: R. Craig Bottomley for the appellant Roger A. Pinnock for the respondent

Heard: May 14, 2004

On appeal from conviction by Justice Patricia R. German of the Superior Court of Justice dated April 18, 1998 and sentence imposed on November 8, 1999.

ENDORSEMENT

[1] In the view we take of this case, it is unnecessary to decide whether the authorizing judge’s failure to give notice to appellant’s counsel would, in these circumstances, deprive the judge of jurisdiction to issue the DNA warrant. Assuming without deciding that the authorizing judge should have required the police to give defence counsel notice of the application and that the failure to do so, in the particular circumstances of this case, led to a loss of jurisdiction, we are satisfied that the evidence would, in any event, be admissible under s. 24(2) of the Charter.

[2] The evidence would inevitably have been discovered and therefore the breach of s. 8 of the Charter would not affect trial fairness. The breach was not serious. The police acted in good faith in informing the authorizing judge of defence counsel’s letter. The police had reasonable grounds for obtaining the warrant and its sufficiency has not been challenged. These were very serious offences and the DNA evidence was essential to prove these offences. We note as well that DNA evidence was instrumental in eliminating another suspect. Exclusion of the evidence would adversely affect the reputation of the administration of justice.

[3] We are also satisfied that the trial judge’s directions concerning the use of evidence of other counts was adequate in the circumstances. When the charge is read as a whole, we are satisfied that there was no risk that the jury would misuse the evidence.

[4] As to sentence, we agree that the trial judge erred in principle in refusing to give two for one credit for pre-sentence custody solely because she believed the appellant required a longer sentence for treatment. It therefore falls to this court to consider the fitness of the sentence. We are satisfied that the sentence of six years in addition to the three and one-half years of pre-sentence custody was fit. The appellant committed six very serious sexual assaults on complete strangers over a two-year period. The appellant threatened the youthful victims with weapons and also confined and robbed the victims. A total effective sentence of thirteen years was within the appropriate range for this conduct.

[5] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

Signed: "Marc Rosenberg J.A." "E.E. Gillese J.A." "Robert P. Armstrong J.A."