W A R N I N G

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).

(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.

(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.

(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.

(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.

CITATION: R. v. Simon, 2008 ONCA 578

DATE: 20080808

DOCKET: C39101

COURT OF APPEAL FOR ONTARIO

DOHERTY, GILLESE and EPSTEIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

SHEON SIMON

Appellant

Joseph Neuberger and David Rose for the appellant

Gillian Roberts and Laura Hodgson for the respondent

Heard: January 16 and 17, 2008

On appeal from convictions returned by a jury presided over by Justice C. Marchand of the Superior Court of Justice on September 22, 2000 and an appeal from the finding that the appellant was a dangerous offender made on July 10, 2002.*

DOHERTY J.A.:

I.

[1] The appellant was convicted by a jury of multiple offences arising out of three vicious sexual assaults that occurred between October 1998 and February 1999.[^1] There were a number of similarities among the three assaults and forensic DNA comparisons established that the same person committed all three crimes. In all three attacks, the female victims were abducted by a young black stranger who forced them into a van. He drove the van a short distance, sexually assaulted the victims and then released them. In all three cases, the victims were threatened with death, strangled and sexually violated in various ways. The attacks demonstrated a level of brutality and callousness towards the victims that was remarkable even in the context of a serious sexual assault.

[2] Identity was the sole issue at trial. The Crown relied on expert evidence comparing the appellant’s DNA retrieved from a saliva sample he had given to the police with DNA retrieved from vaginal swabs taken from each of the three victims. The Crown relied on similar evidence comparing the appellant’s DNA sample with DNA found in semen samples taken from two of the three stolen vans. The expert evidence led by the Crown comparing these samples offered potentially very strong evidence that the appellant committed the assaults.

[3] The Crown also led circumstantial evidence capable of connecting the appellant to one or more of the attacks. I do not need to review this evidence. While that evidence was not overwhelming, it did have potential probative value on the issue of identification.

[4] The appellant did not testify and did not call any evidence.

[5] Following the appellant’s convictions, the Crown received the Attorney General’s consent to proceed with an application under Part XXIV of the Criminal Code to have the appellant declared a dangerous offender. During interviews with a psychiatrist conducted for the purposes of the dangerous offender application, the appellant admitted that he had attacked and sexually assaulted the three victims. After a 23-day hearing, it was common ground among the experts that the appellant met the criteria to be found a dangerous offender. The dispute turned on whether, despite the fact that the appellant met the relevant criteria, the trial judge should exercise his discretion and decline to find that the appellant was a dangerous offender. Counsel for the appellant argued that other sentencing alternatives, such as a finding that the appellant was a long-term offender, were more appropriate in the circumstances. The trial judge ultimately determined that the appellant was a dangerous offender and imposed an indeterminate sentence.

[6] The appellant appeals from his convictions and the finding that he is a dangerous offender.

[7] On the conviction appeal, the appellant raises two grounds. First, he contends that his saliva sample was obtained in a manner that breached his rights under the Charter. The appellant argues that the sample and all evidence derivative of that sample, including the expert evidence, should have been excluded from evidence pursuant to s. 24(2) of the Charter. The appellant submits that without the DNA evidence, the Crown’s evidence was incapable of establishing beyond a reasonable doubt that he was the perpetrator of the offences.

[8] The second argument on the conviction appeal arises out of the trial judge’s instructions with respect to the content of the expert DNA evidence called by the Crown. The appellant submits that the trial judge did not adequately review the evidence, particularly the part of the cross-examination that the appellant submits significantly undermined the potential probative force of the expert’s testimony.

[9] On the appeal from the finding that the appellant is a dangerous offender, the appellant submits that this court should revisit its interpretation of the word “satisfied” in s. 753.1 of the Criminal Code as set out in the recent decision of R. v. F.E.D. (2007), 2007 ONCA 246, 222 C.C.C. (3d) 373 (Ont. C.A.). The appellant also takes issue with the trial judge’s findings of fact, particularly as they reflect his preference for the evidence of the Crown expert over that proffered by the defence expert.

[10] I would not give effect to any of the arguments raised by the appellant. I would dismiss the appeal from the convictions and from the finding that the appellant is a dangerous offender.

II. THE CONVICTION APPEAL

(A) The Charter Claim

[11] The appellant maintains that the saliva sample he gave to the police, which they used for DNA comparison purposes, was obtained in violation of his rights under s. 8 of the Charter. The appellant also argues that even if he gave a valid waiver of his s. 8 rights, the saliva sample was obtained in a manner that breached his right to counsel under s. 10(b) of the Charter. The appellant contends that the saliva sample, and all derivative evidence, fall within the reach of s. 24(2) of the Charter. He submits that the sample and the derivative evidence are conscriptive evidence, that their admission into evidence rendered his trial unfair, and that the evidence should therefore have been excluded pursuant to s. 24(2).

[12] The Crown responds that the appellant gave his express, voluntary and informed consent to the taking of the saliva sample by the police. The Crown argues that this consent takes the obtaining of the sample outside of the ambit of s. 8 of the Charter.

[13] The Crown accepts the trial judge’s finding that the police breached the appellant’s s. 10(b) rights before he consented to the taking of the saliva sample. The Crown submits, however, that in the circumstances, the express informed waiver given by the appellant effectively severed any connection between the earlier breach of s. 10(b) and the subsequent giving of the saliva sample. The Crown submits that the sample was obtained in a manner that did not breach the appellant’s s. 10(b) rights.

(i) The Relevant Events

[14] The attacks that ultimately became the subject of these charges against the appellant caused the York and Metro Toronto police forces to form a joint task force (the “Task Force”). On February 5, 1999, about two weeks after the third attack, the Task Force received a tip from an unidentified source indicating that the appellant was the perpetrator of the attacks. The Task Force had received similar tips naming other individuals. When the Task Force received these tips, it took steps to either eliminate the person named in the tip as a suspect or to establish his potential connection to the crimes. One way of doing so was to obtain a sample of that person’s DNA and compare it to the DNA believed to have come from the perpetrator.

[15] On February 8, 1999, members of the Task Force decided to take up physical surveillance of the appellant. The officers hoped to obtain a “throw away” sample of the appellant’s DNA for comparison purposes. By a “throw away” sample, the police meant a sample retrieved from some item, such as a coffee cup, discarded by the appellant. The physical surveillance began on February 9 at the appellant’s high school. Shortly before noon, the appellant was seen entering a van that the police quickly determined had been stolen. The surveillance team lost contact with the appellant after he drove away in the stolen van. The officers returned to the appellant’s school later that afternoon, found the appellant, and arrested him on a charge of possession of a stolen motor vehicle.

[16] The appellant was arrested at 2:45 p.m. At 2:49 p.m., he was given his rights to counsel under s. 10(b) of the Charter and cautioned in respect of the charge of possession of stolen property. The police took the appellant to 32 Division, arriving there at 3:06 p.m. He was once again given his rights under s. 10(b) of the Charter in respect of the possession of stolen property charge.

[17] The officers who arrested the appellant for possession of stolen property were not members of the Task Force. They were, however, in contact with the Task Force on the day of the arrest and were aware that the appellant was a suspect in the sexual assaults investigation.

[18] The members of the Task Force did not have reasonable grounds to arrest the appellant on any charge arising out of the sexual assaults. They did have their suspicions based on the tip and the appellant’s possession of a stolen van on the day of his arrest. Stolen vans had been used in all three sexual assaults. In addition, the appellant matched the very general description of the perpetrator. According to that very general description, the perpetrator was a young black male.

[19] At about 3:15 p.m., some ten minutes after the appellant arrived at the police station, the police, at the appellant’s request, contacted duty counsel on his behalf. The appellant was placed in the cells until about 5:15 p.m. when he spoke to duty counsel for about five minutes. There does not appear to have been any attempt to take a statement from the appellant before he had the opportunity to speak to duty counsel.

[20] At the time he spoke to duty counsel, the appellant was under arrest on the charge of possession of the stolen van. The police had not said anything to him about their investigation into the sexual assaults or their interest in him as a suspect in those attacks.

[21] At 5:20 p.m., after the appellant had spoken with duty counsel, Officers Conroy and Grinton took the appellant into an interview room for questioning. The officers, who were not on the Task Force, wanted to find out where the appellant had left the stolen van he had been seen driving earlier that day. Conroy and Grinton had spoken with the Task Force officers before commencing the interview. They were not asked to question the appellant in connection with the matters being investigated by the Task Force.

[22] Very shortly after the interview started, one of the officers invited the appellant to “help yourself” by telling them where he had left the stolen vehicle. Crown counsel at trial conceded that this was an inducement rendering the rest of the statement involuntary and inadmissible. The appellant then told the police where he had left the vehicle.

[23] Conroy and Grinton terminated the interview and spoke with members of the Task Force. Officers went to the location where the appellant said he had left the van. They found the van at that location and impounded it for further investigation by the Task Force. The appellant remained detained at 32 Division.

[24] The chronology now comes to the crucial interview. At about 8:25 p.m., the appellant was moved to a different interview room. At 8:40 p.m., Constable Hall and Constable Wilcox, members of the Task Force, entered that room. They wanted to obtain the appellant’s consent to the taking of a saliva sample from which the police could obtain his DNA for the purpose of comparing it with the DNA of the perpetrator. These officers had no interest in the stolen van charge on which the appellant had been arrested and was being held in custody. When Hall and Wilcox began their interview with the appellant, they did not tell the appellant that he was a suspect in the Task Force’s investigation or that they were interested in obtaining a DNA sample.

[25] This interview with the appellant was videotaped and a transcript of the interview is available. I will refer to the transcript pages in describing various parts of the interview. The interview with Officers Hall and Wilcox lasted about an hour.

[26] When the interview began at 8:40 p.m., the officers did not tell the appellant that they were investigating the sexual assaults. Nor did the officers advise the appellant of his right to counsel under s. 10(b) in connection with the sexual assaults. There is no mention of the sexual assaults in the first 24 pages of the transcript.

[27] The police began their interview by advising the appellant of the videotape procedure they were using and the reasons for videotaping statements given by persons in custody. The officers next confirmed that the appellant had spoken to duty counsel, again without mentioning that the focus of their questioning would not be on the stolen van but rather on the sexual assaults. The officers then confirmed that the appellant had been treated properly since his arrest, gave him the usual secondary caution and reviewed his personal, academic and employment history.

[28] Officers Hall and Wilcox introduced the topic of the Task Force investigation of the sexual assaults at p. 25 of the transcript. Officer Wilcox gave the appellant a copy of a “public notice” the Task Force had circulated soliciting public assistance in their investigation. The document identified the dates of the assaults, described their location, and indicated that one of the assaults involved an abduction of the victim in a van. The “public notice” described the assailant and requested public assistance.

[29] After the appellant had read the brochure, Officer Hall said to him:

We’re not talking about the vans anymore that anything we talk about this or anything you say about this okay is going to be recorded on the tapes.

[30] In his reasons ([2000] O.J. No. 2839 (S.C.J.)), the trial judge found that the appellant read the notice and became aware that the focus of his interrogation had changed from the stolen van to the sexual assaults. The trial judge said at para. 25:

There is no question in my mind, that the accused, upon reading this public notice must have immediately become aware that the focus of the interview had changed and that the interviewers no longer were addressing the question of stolen vans, but rather, were addressing their investigation in the aforementioned sexual assaults.

[31] I accept the trial judge’s finding that the appellant knew from the time he read the notice that the police questioning would relate to the sexual assaults and not to the stolen van. It is important, however, to appreciate that even after the appellant understood that the focus of the police interrogation had shifted to the sexual assaults, and after he was cautioned in respect of those assaults, he was still not advised of his s. 10(b) rights in respect of the sexual assaults. Instead of advising him of his rights to counsel as it related to the sexual assaults, the officers confirmed that he had spoken to a lawyer after his arrest. However, as the officers well knew, that communication with duty counsel occurred when the appellant understood he was facing charges related to the stolen van and not questioning in respect of the much more serious charges arising out of the Task Force investigation.

[32] Having told the appellant that the subject matter of their interview was the sexual assaults, while at the same time not having advised him of his right to counsel in respect of those matters, Officers Wilcox and Hall carried on with their questioning. At p. 29 of the transcript, Officer Hall asked the appellant directly whether he had committed the sexual assaults. The appellant said that he did not commit those offences. Officer Hall asked “should we believe you when you tell us that?” There followed a two-page exchange in which the officers presented some of their evidence to the appellant and he offered explanations for that evidence.

[33] At p. 31 of the transcript of the interview, Officer Hall again asked the appellant whether he had committed the sexual assaults. The appellant again denied any involvement in the assaults. The officers asked the appellant how he had become aware of the assaults and the appellant offered an explanation. Officer Hall then asked the appellant for a third time whether he had any knowledge of or involvement in the assaults. For a third time, the appellant denied any involvement.

[34] At p. 36 of the transcript, the officers introduced the possibility of the appellant providing a sample of his saliva for DNA purposes. Officer Hall asked:

What would you be prepared to do to like show us that you have no involvement in that?

[35] The officers provided a brief description of the procedures used to obtain a saliva sample. They told the appellant that providing the sample was “strictly voluntary”. There had still been no mention of the appellant’s right to counsel in the context of the sexual assaults investigation.

[36] At p. 37 of the transcript, Officer Wilcox left the interview room and returned a short time later with a consent form and the paraphernalia used to obtain the saliva sample. She read the entire consent form to the appellant. The form began by referring to the three sexual assaults and the dates on which they had occurred. The second paragraph of the form indicates:

We’re seeking permission from you to obtain bodily samples … for scientific testing, including DNA analysis. The samples obtained from you will be scientifically tested and analyzed and compared with other evidence. The purpose of the analysis and comparison is to enable investigators to attempt to positively identify the person responsible for the above sexual assaults and also to enable the investigators to eliminate persons as possible suspects. [Emphasis added.]

[37] The final paragraph as read to the appellant contains the following:

You’re 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. [Emphasis added.]

[38] After reading the entire form to the appellant, Officer Wilcox confirmed that the appellant had spoken to duty counsel earlier in the day. The appellant said that he had spoken to duty counsel, but not “about this stuff”. He asked Officer Wilcox whether he should speak to a lawyer before giving a sample. She responded:

It’s completely up to you. If, if you’re telling me you didn’t do this it’s, it’s completely up to you but you have, you know you have the right to speak to a lawyer right now if you wish okay. And if, we’ll just put in here the answer to the questions. Do you understand what I’ve just read and do you have any questions? [Emphasis added.]

[39] The appellant confirmed that he understood what he had been told and that he did not have any questions. He then asked whether he could speak to a lawyer after he signed the consent. An exchange followed about the availability of a Legal Aid lawyer and who that lawyer might be. Officer Wilcox then told the appellant:

I mean you’re an adult you have freedom of choice right now, okay. Like I say I want to make sure it’s, it’s fully, you consent to this. I’m not, we’re not trying to coerce you if you don’t, you know if you have a problem with it let me know. [Emphasis added.]

[40] The appellant then asked, “what happens if I don’t do it?” The officer replied, “you don’t do it. You, you’re not cleared though, we want to clear you as a suspect.”

[41] The appellant signed the consent and Officer Wilcox took the saliva sample. Officer Wilcox asked the appellant if he had any questions and he replied that he did not.

[42] The interaction between the appellant and the police following the taking of the saliva sample does not require a detailed review. Officers Wilcox and Hall continued to question the appellant. Among other things, they asked him about his whereabouts at the times of the sexual assaults. At 9:40 p.m., Detective Paul Lobsinger, the officer in charge of the Task Force, joined the interview. He questioned the appellant vigorously for about 50 minutes. At one point during the interrogation, the appellant asked Lobsinger why he would give a sample of his saliva to the police if he had committed the sexual assaults. By the end of the interview, Lobsinger believed that the appellant was not the perpetrator. Sometime after the interview with Lobsinger, Wilcox and Hall ended, the appellant spoke briefly with Officers Grinton and Conroy. The appellant initiated this discussion with the officers while they were doing their paperwork. The content of the conversation is not important.

[43] The appellant did not testify and did not call any evidence on the voir dire.

(ii) The Trial Rulings

[44] At trial, the appellant challenged the voluntariness of the statements. The trial judge found that the comments made in the initial interview with Grinton and Conroy after the officers’ inducement, were involuntary and inadmissible. He ruled that the Crown had proved that all of the other statements were voluntary: R. v. Simon (2000), WL 33297166 (Ont. S.C.J.). I do not understand the Crown to rely on the contents of the statements. Voluntariness is not an issue on appeal.

[45] On the Charter motion, the trial judge held that Constables Hall and Wilcox were constitutionally obliged to tell the appellant that the focus of the questioning had changed from the stolen van to the sexual assaults. The trial judge also held that the police were constitutionally obliged to advise the appellant of his s. 10(b) rights in the context of their investigation of the sexual assaults. The trial judge ruled that any of the appellant’s statements up to p. 27 of the transcript of the interview with Constables Hall and Wilcox, the point at which he became aware that the focus of the investigation had changed, were inadmissible pursuant to s. 24(2) of the Charter: R. v. Simon, [2000] O.J. No. 2839 at para. 34 (S.C.J.). The Crown does not take issue with that ruling. As indicated above, the admissibility of the appellant’s statements is not the issue. The real target of the Charter motion and this ground of appeal is the appellant’s saliva sample and the evidence derivative of that sample.

[46] The trial judge held, at para. 37, that the appellant had given an express, informed and voluntary waiver of his Charter rights before agreeing to provide a sample of his saliva to the police for DNA comparison purposes:

I have had an opportunity to observe the accused during these lengthy proceedings and I also had an opportunity to see and hear him in the course of the many videotaped statements that were produced on those voir dires. I have had an opportunity to review the agreed statement of facts revealing a very lengthy experience the accused has with the minions of the law. I have formed an opinion that he is a very highly intelligent and articulate individual and I am more than convinced that the Crown has discharged its onus in satisfying me that “the accused had decided to relinquish his constitutional right with full knowledge of their existence and full appreciation of the consequences of waiving those rights”. I am more than satisfied that “he exercised a right to choose voluntarily and that his decision was informed and that he made a valid and effective choice”. [Emphasis added.]

(iii) Analysis

(a) The Section 8 Claim

[47] There are two distinct but related Charter claims that must be addressed. The first turns on whether the appellant effectively waived his rights under s. 8 of the Charter before providing his saliva sample to the police. The second argument turns on whether in the circumstances that waiver, which was made with full knowledge of the right to speak to counsel before giving the waiver, severed any connection between the providing of the sample by the appellant, and the prior breach of his s. 10(b) rights so that it could not be said that the sample was obtained in a manner that infringed s. 10(b).

[48] Section 8 of the Charter protects individuals against unwarranted state intrusions upon their privacy interests. One of the values animating the right protected by s. 8 is personal autonomy. Personal autonomy, however, also dictates that an individual must be able to waive his or her right to be left alone by the state and to consent to what, absent that consent, would be an unreasonable state invasion of personal privacy. If an individual provides that consent, what would otherwise be a search or seizure, is no longer a search or seizure. The reasonableness standard mandated by s. 8 has no application where the individual has consented to the state intrusion upon his or her privacy: R. v. Dyment (1988), 1988 CanLII 10 (SCC), 45 C.C.C. (3d) 244 at 257 (S.C.C.); R. v. Borden (1994), 1994 CanLII 63 (SCC), 92 C.C.C. (3d) 404 (S.C.C.); R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 at 540 (Ont. C.A.).

[49] The quality of a purported s. 8 waiver must be commensurate with the importance of the right being relinquished. Courts will be slow to infer a waiver, particularly where the individual who is said to have waived his or her s. 8 rights is detained and is the target of a criminal investigation. The Crown bears the burden of demonstrating that any waiver relied on by the Crown is in all of the circumstances an effective and informed waiver of an individual’s s. 8 rights.

[50] The validity of a waiver is a fact-bound inquiry. The factors to be considered have been reviewed in a number of authorities: see, e.g., R. v. Wills, supra, and R. v. Borden, supra. The trial judge was alive to these authorities. The appellant does not suggest that the trial judge misstated the law as it applies to waivers of s. 8 rights. I do not propose to restate the principles to be derived from those well-known authorities.

[51] The trial judge found that the appellant’s waiver of his s. 8 rights met the high standard required by the case law. The appellant has not convinced me that the trial judge made any reversible error in coming to that conclusion.

[52] I start with the obvious. The appellant gave an express written consent to the taking of the sample. This is not a case where the trial judge was asked to infer consent from conduct or to rely on an unrecorded oral waiver. There is nothing ambiguous in the language of the written document. Nor did the police say or do anything that could qualify the contents of the document or render its subject matter ambiguous or unclear.

[53] The consent was also voluntary in the sense that it was the product of the appellant’s own free will. He chose to give the consent. There was no unfair or oppressive police conduct that could negate the appellant’s exercise of his own free will. He knew, because he was repeatedly told, that he did not have to give the sample and he chose to give it.

[54] The appellant’s consent was an informed consent in all meaningful ways. He knew he was a suspect in the investigation of three serious sexual assaults. He knew the police would use the sample by comparing it with the samples connected to the crimes. He knew that if the samples “matched”, they would provide strong evidence that he committed the sexual assaults and that if they did not match, he would be eliminated as a suspect. The appellant was also told exactly how the police proposed to take the sample. In short, the appellant knew what the police wanted, why they wanted it, the jeopardy to which he was exposed, and how the police proposed to take the sample.

[55] The case for the validity of the consent was made stronger by the officers’ indication to the appellant, verbally and in writing, that he could speak to counsel before making the decision as to whether to give the consent requested by the police. The appellant knew when he chose to give the consent that if he wanted to, he could speak to counsel immediately and before deciding whether to give the sample.

[56] The thrust of the appellant’s argument as it relates to s. 8 is directed not at the trial judge’s statement of the applicable legal principles, but rather at the trial judge’s assessment of the evidence. The appellant submits that the trial judge inferred a valid consent based on the trial judge’s observations of the appellant on the videotape, and his familiarity with the criminal investigative process based on his prior experience. The appellant submits that the trial judge should not have drawn these inferences from the appellant’s conduct on the videotape in the absence of any testimony from the appellant.

[57] This submission does not do justice to the trial judge’s reasons. The trial judge relied on what he saw on the videotape to form certain impressions of the appellant. Those impressions were, however, only part of the total evidentiary picture. The evidence that was most germane to the validity of the waiver was not in dispute. That evidence came from the actual exchanges between the police and the appellant as captured on the videotape and the contents of the document that the appellant signed. The real factual dispute arose over whether on the undisputed evidence, the appellant’s apparent consent was in reality a valid and effective consent to the taking of the saliva sample.

[58] The interaction between the police and the appellant captured by the videotape was an important consideration for the trial judge.[^2] Courts have repeatedly urged police forces to use videotaping when questioning suspects. One of the values of videotaping is that it gives trial judges the opportunity to see exactly what happened when statements were made and to see the interaction between the police and the suspect. The videotape provides valuable insights that no mere verbal description of the encounter could provide. I see no reason to limit the use of the potentially valuable insights gained from the videotape to cases in which an accused chooses to testify on the voir dire.

[59] The trial judge did use the videotape to form certain impressions of the appellant and he did use those impressions in coming to his conclusion that the waiver was valid. Indeed, I think he would have fallen into serious error had he not taken into account what he saw on the videotape and the reasonable inferences about the appellant available from looking at the videotape. The trial judge’s findings that the appellant was intelligent and in no way intimidated by his surroundings or by the police questioning were all inferences that could reasonably be drawn.

[60] The appellant has offered no basis upon which this court should interfere with the trial judge’s finding that the appellant gave a valid consent to the taking of the saliva sample. I would add that I agree with the Crown’s observation, that the contents of this waiver track very closely the contents of the waiver found to be valid in R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 182 C.C.C. (3d) 393 at 406-408 (Ont. C.A.).

(b) The Section 10(b) Breach

[61] Officers Hall and Wilcox had a constitutional obligation to advise the appellant at the beginning of the interview at 8:40 p.m. that the focus of the questioning was shifting from the stolen van to the sexual assaults and that the appellant had a right to speak with counsel before being questioned about the sexual assaults: see R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 at 306-307 (S.C.C.); R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 118 C.C.C. (3d) 17 at 27-28 (Ont. C.A.). The officers did neither. Although they eventually made it clear to the appellant that they were concerned with the sexual assaults and not the stolen van, they never expressly told him that he had a right to speak to a lawyer before being questioned about the sexual assaults.

[62] The trial judge correctly held that the officers breached the appellant’s constitutional rights when they failed to advise him of his right to counsel as it related to the sexual assault investigation.[^3] He went on, however, to hold that the appellant’s effective waiver of his s. 8 rights prior to giving the saliva sample rendered the sample admissible. The trial judge did not consider the impact of the prior breach of s. 10(b) on the admissibility of the sample. On the controlling jurisprudence, he was obligated to determine whether there was a sufficient connection between the appellant’s giving of the saliva sample and the s. 10(b) breach to render the sample potentially inadmissible under s. 24(2) of the Charter: see R. v. Wittwer (2008), 2008 SCC 33, 231 C.C.C. (3d) 97 (S.C.C.) rev’g (2007), 2007 BCCA 275, 219 C.C.C. (3d) 449 (B.C.C.A.); R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.); R. v. Caputo (1997), 1997 CanLII 1636 (ON CA), 114 C.C.C. (3d) 1 (Ont. C.A.). I propose to make the assessment mandated by the case law using the trial judge’s factual findings.

[63] It is helpful to begin with the relevant words of s. 24(2):

Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [Emphasis added.]

[64] Evidence is potentially inadmissible under s. 24(2) only if it was obtained “in a manner” that infringed a right or freedom guaranteed by the Charter. If the threshold requirement is met, the ultimate determination of admissibility turns on whether the admission of the evidence could bring the administration of justice into disrepute.

[65] Since R. v. Strachan (1988), 1988 CanLII 25 (SCC), 46 C.C.C. (3d) 479 (S.C.C.), the courts have taken a generous view of the kind of connection needed between the Charter breach and the evidence to satisfy the threshold requirement in s. 24(2). The connection may be temporal, causal, contextual, or a combination of the three: R. v. Wittwer, supra, at para. 21.

[66] On the generous approach favoured in the case law, there is something to be said for the appellant’s submission that the s. 10(b) breach was sufficiently connected to the sample to bring the sample within the reach of s. 24(2). There was a very close temporal connection between the breach and the giving of the sample. Both occurred in the same interview which, by the time the sample was given, had gone on for about 40 minutes. That interview which encompassed both the Charter breach and the giving of the sample was conducted by the same officers in the same place. The officers had the same agenda throughout the interview. They were investigating the sexual assaults and they wanted to obtain the appellant’s consent to the giving of a saliva sample.

[67] The s. 10(b) breach and the giving of the sample must be regarded as part of the “same transaction or course of conduct”: see R. v. Wittwer, supra, para. 21. I think that unless something occurred during that course of conduct which clearly severed the s. 10(b) breach from the taking of the sample, s. 24(2) would be engaged when the Crown sought to introduce the saliva sample and the evidence derivative of that sample.

[68] I would add that despite the close temporal and contextual connection, I see no causal connection. Nothing said or done by the police in the course of their interview subsequent to the s. 10(b) breach affected the appellant’s ultimate decision to provide the saliva sample. Unlike in R. v. Wittwer, supra, at para. 26, there is no evidence that the police knowingly and deliberately used constitutionally tainted information to obtain the appellant’s consent to the giving of the saliva sample.

[69] Ultimately, the sufficiency of the connection between the Charter breach and the subsequent obtaining of the evidence for the purposes of engaging s. 24(2) can only be determined by a case-specific factual inquiry: see R. v. Plaha, supra, para. 47. As Fish J. noted in R. v. Wittwer, supra, at para. 3, the police can, where an interrogation is tainted by a Charter breach, make a “permissible fresh start” by clearly severing their subsequent interrogation from the effect of the earlier Charter breach.

[70] The facts of this case present a somewhat different scenario than the other cases referred to by counsel. Here, the significant evidence is not a statement made by the appellant after a belated police compliance with s. 10(b), but is rather a saliva sample obtained from the appellant under the authority of the appellant’s express consent to the taking of the sample. That consent was given after the appellant was told, both orally and in writing, that he was not required to provide the sample and that he could speak to a lawyer right away and before he made any decision. On the unchallenged evidence, the officers administered a focussed and powerful antidote to their earlier s. 10(b) breach. That antidote targeted a single piece of evidence – the saliva sample.

[71] A determination of whether the police conduct surrounding the waiver effectively disconnected the prior s. 10(b) breach from the giving of the saliva sample requires a consideration of the impact of that police conduct on the purposes underlying the rights created by s. 10(b). The right to counsel exists in large measure to ensure that detained persons are treated fairly. A detained person must be made aware of his or her right to counsel before being questioned by the police so that the detained person might make an informed decision as to whether to speak to counsel and obtain legal advice before potentially incriminating him or herself in response to police questioning. Access to counsel protects detained persons against uninformed self-incrimination.

[72] Insofar as providing the saliva sample is concerned, the purposes underlying s. 10(b) were fully served by the information provided to the appellant before he chose to consent to the giving of the sample. The appellant knew the nature and extent of his jeopardy when he agreed to give the sample. He appreciated the potential for self-incrimination and his entitlement to either refuse outright to provide the sample or to speak to a lawyer before making that decision. Whatever may be said about the appellant’s understanding of his circumstances in the broader context of any statements he may have made to the police, when he consented to the taking of the saliva sample, he had a full appreciation of his right to counsel in regard to the taking of that sample and the potential value of that right to him. The appellant chose to go ahead without speaking to counsel.

[73] I think the comments of Professor Roach in Constitutional Remedies in Canada Aurora: Canada Law 1994 at para. 10.780 apply to the facts of this case:

In determining whether evidence is too remote from a Charter violation, courts should reflect on the purposes and interests that the Charter right violated was meant to protect and not so much on the time elapsed between the violation and the discovery of the evidence. If the purposes of the Charter have been met by subsequent compliance or are not implicated in obtaining the evidence, then the court can safely conclude that the evidence was not obtained in a manner that violated the Charter.[^4] [Emphasis added.]

[74] The express, unqualified and informed consent to the taking of the sample, provided by the appellant when he had full knowledge of his s. 10(b) rights as they related to the providing the sample, drives a wedge between the giving of the sample and the earlier breach of s. 10(b). The informed consent effectively disconnected the decision to give the sample from any potential effect of the prior s. 10(b) breach. It cannot be said that the sample was obtained in a manner that violated the appellant’s rights under s. 10(b) of the Charter. Consequently, the evidence does not pass the threshold inquiry required under s. 24(2) and the s. 10(b) breach cannot justify its exclusion.

(B) The Jury Instructions on the Experts’ DNA Evidence

[75] The Crown called an expert to testify that the appellant’s DNA “matched”[^5] the DNA of the perpetrator and DNA found in the vans. The appellant did not call any expert evidence.

[76] The trial judge chose not to review in any detail the substance of the expert evidence with the jury. He reminded them of counsel’s closing arguments and commended their detailed review of that evidence to the jury. The trial judge also reminded the jury that it should “not be bowled over” by the opinion of the expert. The trial judge went so far as to tell the jury that it was not “safe” to convict on the evidence of an expert alone. All of these instructions inured to the benefit of the defence.

[77] The objection taken on appeal, as it was at trial, stems from the trial judge’s decision not to review the evidence of the expert concerning the statistical likelihood of a coincidental match like the match he had found. No doubt, the trial judge was concerned that the numbers attached to the possibility of a coincidental match by the expert (more than six billion to one) could overwhelm the jury and prejudice the appellant.

[78] The appellant’s complaint arises out of the cross-examination of the expert. He submits that the cross-examination provided a basis upon which the jury could infer that the chances of a coincidental match between the appellant’s sample and those of the perpetrator were far greater than the virtually non-existent possibility that the expert had suggested during his examination-in-chief. The appellant submits that the trial judge was required to review this part of the cross-examination with the jury in the context of assisting the jury in evaluating the probative value of the expert’s evidence that the sample taken from the appellant “matched” the samples left by the perpetrator.

[79] Trial judges do not and should not reargue cases for the Crown or the defence. They are not obliged in their closing instructions to marshal all of the evidence or all of the arguments that could assist one side or the other. The appellant’s complaint has merit only if a review of the relevant part of the cross-examination was crucial to a jury’s proper understanding of the defence position.

[80] I do not think that the impugned cross-examination had the potential dramatic effect suggested by the appellant. The expert, whose evidence was unchallenged by any other expert, made it abundantly clear that the comparison presented to him by counsel on cross-examination represented an entirely different kind of comparison than the one he had made. His was random; the one used by counsel was not. As far as the expert was concerned, counsel was comparing “apples to oranges”. The expert explained at some length why the comparison brought up on cross-examination was of no assistance in evaluating the chances that the matches he identified were coincidental.

[81] Had the trial judge seen fit to go into this area of the evidence with the jury, he would have had to canvass the entirety of the expert’s evidence as it related to this topic, including his evidence as to the invalidity of the comparison relied on by counsel. As there was no expert evidence contradicting the Crown’s expert’s explanation for the invalidity of the comparison, it seems doubtful that the jury would have rejected the expert’s explanation for the invalidity of the comparison. This part of the cross-examination was simply one feature of the evidence. The trial judge could have reminded the jury of this evidence, but his failure to do so does not come close to reversible error.

III. THE DANGEROUS OFFENDER APPEAL

[82] The trial judge gave lengthy reasons for his finding that the appellant was a dangerous offender and his decision to impose an indeterminate sentence. He thoroughly reviewed the evidence in those reasons: R. v. Simon, [2002] O.J. No. 2825 (S.C.J.). I do not propose to repeat or to attempt to summarize the trial judge’s review of the evidence. I adopt that review and rely on it for the purposes of these reasons.

[83] The Crown psychiatrist, Dr. Woodside, and the defence psychiatrist, Dr. Federoff, agreed that the appellant fell within the definitions of a dangerous offender in ss. 753(1)(a)(i) and (ii). Dr. Woodside also testified that the appellant fell within the criteria in s. 753(1)(b). Dr. Federoff disagreed.

[84] The trial judge accepted that even though he had found that the appellant met the criteria for a finding that he was a dangerous offender, the court still had a discretion to decline to make that finding and impose an indeterminate sentence (para. 223). Specifically, the trial judge recognized that although the appellant met the criteria for a finding that he was a dangerous offender, the trial judge could instead find that the offender was a long-term offender and sentence him according to the long-term offender provisions. In so holding, the trial judge anticipated the holding a year later in R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.).

[85] The trial judge set out the long-term offender provisions in s. 753.1. These include the requirement in s. 753.1(c) that the court be “satisfied” that:

there is a reasonable possibility of eventual control of the risk in the community.

[86] The appellant submits that the Crown was obliged to prove beyond a reasonable doubt that there was no reasonable possibility that the risk posed by the appellant could eventually be controlled in the community. The appellant acknowledges that this submission is contrary to the holding in R. v. F.E.D. (2007), 2007 ONCA 246, 222 C.C.C. (3d) 373 (Ont. C.A.).

[87] In R. v. F.E.D., Simmons J.A., for the court, at paras. 44-45, rejected the claim that there was an onus on the Crown to prove beyond a reasonable doubt that there was no reasonable possibility for eventual control of the risk posed by the offender. She did not read the section as imposing an onus on either party stating at para. 50:

In the context of a dangerous offender application, the issue is whether the sentencing judge should exercise the discretion not to declare an offender dangerous after the sentencing judge has found that the offender satisfies the statutory criteria for that designation. As I have explained, the sentence judge may exercise that discretion where he or she is satisfied that the public threat can be reduced to an acceptable level through either the long term offender provisions or a determinate sentence. This is not an issue that requires either party to satisfy a burden of proof; rather, it is an issue for the sentencing judge concerning whether to exercise his or her discretion based on the whole of the evidence adduced …

[88] The stare decisis doctrine imposes important judicial discipline, especially on a large intermediate appellate court that sits in panels of three judges. Mere disagreement with the analysis or the legal conclusion reached by another panel in an earlier case cannot justify overruling that earlier decision. Where a party seeks to have this court overrule an earlier decision of the court, that party must go beyond the merits of the particular decision and demonstrate cogent policy reasons for departing from the stare decisis principle. The appellant has offered no reason for this court to reconsider a decision rendered only a year ago. In any event, I agree with and adopt the reasoning of Simmons J.A. in R. v. F.E.D.

[89] On the authority of R. v. F.E.D., the trial judge did not err in his application of s. 753.1. He was clearly not “satisfied that the very real risk posed by the appellant could eventually be controlled in the community”. This finding finds ample support in the opinion of Dr. Woodside and the conduct of the appellant.

[90] The remaining arguments advanced on this aspect of the appeal challenge the trial judge’s preference for the evidence of Dr. Woodside over that of Dr. Federoff in the areas where their evidence conflicted. Both doctors are recognized experts. This court must defer to the trial judge’s assessment of their opinions absent clear and material factual errors or an unreasonable determination. Neither occurred here.

[91] The trial judge was alive to the differences in the opinions the two experts advanced and carefully considered those differences. For example, while both doctors diagnosed the appellant as suffering from an anti-social personality disorder, Dr. Woodside also opined that he was a sexual sadist with a preference for a non-consenting course of sexual activity. Dr. Federoff was uncertain about whether the evidence demonstrated that the appellant was a sadist or had a preference for non-consenting sexual activity. Their difference of opinions stemmed in large measure from their somewhat different interpretations of the facts underlying the predicate offences. The trial judge spent some 30 paragraphs outlining the differences in the doctors’ opinions and examining the evidence underlying those opinions. His reasons provide ample support for his preference for Dr. Woodside’s diagnosis insofar as it related to sexual sadism and the appellant’s demonstrated preference for non-consensual sexual activity.

[92] I will refer to two additional submissions made on the appellant’s behalf. He argues that because he had never undergone or rejected psychiatric treatment prior to the dangerous offender proceedings, that Dr. Woodside’s opinion that he was untreatable must be taken to be unreasonable. The appellant refers to authorities that he says support the contention that failed or refused treatment is a prerequisite to a finding that a person is essentially untreatable: see R. v. Ryan, 2004 NUCA 2, [2004] N.J. No. 2 at para. 49 (C.A.); R. v. D.L.S., [2002] B.C.J. No. 2569 at para. 92 (C.A.).

[93] Nothing in the language Parliament used in the dangerous offender provisions suggests that failed or refused treatment is a precondition to a dangerous offender designation. The trial judge thoroughly canvassed the evidence relevant to the appellant’s treatment prospects. He was alive to the fact that the appellant had not undergone a previous treatment regime aimed at the problems identified by Drs. Woodside and Federoff. He noted the absence of prior treatment (para. 244) when summarizing Dr. Woodside’s evidence to the effect that the appellant posed a substantial risk to the safety of the community that could not be controlled within the community. Like the trial judge, I see the absence of prior treatment efforts as relevant to, but in no way determinative of, the assessment that the trial judge had to make.

[94] The appellant also submits that in preferring the evidence of Dr. Woodside, the trial judge improperly focussed on the treatability of the appellant rather than the controllability of the appellant in the community at some future time. The two concepts seem to me to be inextricably linked. Absent some kind of effective treatment – and of course I do not suggest a “cure” – it is difficult to see how the appellant could be safely controlled in the community absent what would amount to the equivalent of incarceration.

[95] The appellant’s treatment prospects were addressed at length in the evidence and in counsel’s submissions. The attention paid to his treatment prospects indicates that all parties saw those prospects as a key consideration in determining whether the appellant could eventually be controlled within the community. The trial judge analyzed the future controllability of the appellant in the community in the same terms that it was presented to him in the evidence and the argument. The appellant’s treatability played a key role in this assessment. The trial judge did not err in focusing on treatability when considering the possibilities of effectively controlling the appellant within the community at some future point in time.

[96] I would dismiss the appeal from the finding that the appellant was a dangerous offender and the imposition of an indeterminate term of imprisonment.

IV. CONCLUSION

[97] I would dismiss the appeal from the convictions and from the finding that the appellant was a dangerous offender.

RELEASED: “DD” “AUG 08 2008”

“Doherty J.A.”

“I agree E.E. Gillese J.A.”

“I agree G. Epstein J.A.”

• Pursuant to s. 486(3) of the Criminal Code, an order was made banning publication of anything that might identify the complainants or the witness, R.J.

[^1]: He was also acquitted on a robbery charge arising out of a fourth incident.

[^2]: At one point, the trial judge erroneously indicated that the first interview with Officers Conroy and Grinton was videotaped. This factual error is of no consequence.

[^3]: The trial judge appears to have held that the breach ended when the appellant became aware that the focus of the investigation had changed. I think the s. 10(b) breach continued.

[^4]: At para. 10.710, Professor Roach makes the persuasive argument that in a fact situation like that presented in this case, one could accept that any evidence following the s. 10(b) breach was obtained in a manner that breached s. 10(b) thereby bringing it within s. 24(2). The subsequent compliance with s. 10(b) before the sample was given would be relevant to the question of whether the admission of the sample into evidence would render the trial unfair by virtue of the conscriptive nature of the evidence despite the fact that by the time the appellant provided the sample, he was aware of his right to counsel. I think there is much to be said for this approach, but at least at present, it seems foreclosed by binding authority: see R. v. Wittwer, supra.

[^5]: This trial took place when experts from the Centre of Forensic Sciences still used the word “match”. That term is no longer used.