R. v. DeJesus, 2010 ONCA 581

CITATION: R. v. DeJesus, 2010 ONCA 581

DATE: 20100909

DOCKET: C46292

COURT OF APPEAL FOR ONTARIO

MacPherson, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nelson DeJesus

Appellant

Timothy Breen and Diana Lumba, for the appellant

Jennifer Woollcombe, for the respondent

Heard and released orally: September 7, 2010

On appeal from the conviction entered on April 7, 2006 by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his conviction for the first degree murder of Lisa Posluns, who was brutally murdered on November 2, 2002 in a building in Yorkville where she had an office. Four months later, the appellant, who had previously worked as a janitor at the building, was charged with her murder.

[2] The only issue at trial was the identity of the killer. On this issue, the DNA evidence was overwhelming. It took two forms.

[3] First, the semen found on Ms. Poslun’s jeans could not be excluded as having come from the appellant, and the probability of it coming from someone else was 1 in 670 billion. In addition, the saliva found on Ms. Poslun’s underwear could not be excluded as coming from the appellant, and the probability of it coming from someone else was 1 in 65,000.

[4] Second, when he was arrested, the appellant was in possession of a knife, knife sheath and handcuffs. DNA profiles were generated from the knife sheath and handcuffs. They matched with Ms. Posluns, with there being virtually no chance of it being anyone else.

[5] The DNA evidence forms the first ground of appeal. The genesis of this evidence was the appellant’s DNA which was on file at the Centre of Forensic Sciences as a result of a police investigation of three charges of sexual assault, one of which resulted in the appellant’s conviction for sexual assault with a weapon in 1995. The appellant does not dispute that the DNA sample was seized as incident to a lawful arrest. At trial, the trial judge made a ruling that the police use of the 1995 DNA evidence, obtained from the appellant’s underwear, did not violate his Charter s. 8 rights to be secure against unreasonable search and seizure.

[6] We agree with the trial judge’s ruling. Once the appellant was convicted of sexual assault with a weapon (indeed he pleaded guilty) his privacy with respect to identifying information was significantly diminished. As Charron J. said in R. v. Jackpine (2006), 2006 SCC 15, 207 C.C.C. (3d) 225 (S.C.C.), at para. 43:

[The appellant’s] identity as a multiple sex offender has become a matter of state interest and he has lost any reasonable expectation of privacy in the identifying information derived from DNA sampling in the same way as he has lost any expectation of privacy in his fingerprints, photograph or any other identifying measure taken under the authority of the Identification of Criminals Act. [Emphasis in original.]

[7] A similar point was made by Feldman J.A. of this court, with respect to fingerprint evidence obtained in relation to a previous offence, in R. v. Dore (2002), 2002 CanLII 45006 (ON CA), 166 C.C.C. (3d) 225 at para. 50:

Once fingerprints have been taken from an individual, it is only the informational component of the fingerprint about which a person can retain any expectation of privacy. When a person continues to be subject to the charge for which the person was arrested, or has been convicted of the charge, then the original basis for obtaining the information disclosed by fingerprints set out by La Forest J. in Beare and Higgins continues and therefore justifies the retention and use of that information on an ongoing basis for law enforcement purposes.

[8] In the present case, the previous information was obtained, via the common law, as an incident to lawful arrest whereas in Dore it was obtained via a statute. We can see no significance in this difference; in both contexts the information has been lawfully obtained and retained by the police.

[9] Finally, at a policy level, we agree with what Ewaschuk J. said in his ruling, namely:

Where the accused’s DNA is lawfully obtained, I find no policy justification in foreclosing the right of the police to use the accused’s DNA for comparison purposes in subsequent unrelated investigations, particularly where the offence in respect of which the DNA was lawfully seized resulted in a conviction.

[10] For these reasons, we would not give effect to the first ground of appeal.

[11] The appellant’s second ground of appeal relates to the trial judge’s charge to the jury on the issue of reasonable doubt.

[12] The trial judge charged the jury that reasonable doubt only applies to the essential matters so that individual items of evidence, including the DNA findings, need not be proven beyond a reasonable doubt. As non-essential facts, he invited them to find these on a balance of probabilities.

[13] Relying on R. v. Quidley (2008) 2008 ONCA 501, 232 C.C.C. (3d) 255 (Ont. C.A.), the appellant argues that, given the prominence of the DNA evidence in proof of identity, the instruction effectively relieved the prosecution of proving the appellant’s guilt beyond a reasonable doubt.

[14] In our view, Quidley is distinguishable. In that case this court found reversible error where the trial judge instructed the jury that the evidence of voice identification and translation accuracy need be proved on a balance of probabilities. The trial judge did not tell the jury that they must consider that evidence, together with all of the other evidence, in determining whether the evidence raised a reasonable doubt about the accused’s guilt. This court found a very serious likelihood that the jury would be confused and would misapprehend the correct standard of proof. However, on that record, the evidence was effectively the only evidence of identity and the court considered it to be almost the same as essential elements. In this case, on the other hand, there was a significant body of evidence relevant to the issue of identity, quite apart from the DNA evidence.

[15] In this case, the trial judge quite properly explained that proof to a certainty was not required; he was entitled to comment upon the evidence; and he properly advised the jury to consider all the evidence cumulatively to determine whether the case was proven beyond a reasonable doubt.

[16] In our view, taking the charge as a whole, the jury would not have misapprehended the correct standard of proof or convicted the accused on a lower standard. The trial judge made very clear that the identity of the murderer was an essential matter that the Crown had to prove beyond a reasonable doubt. We do not give effect to this ground of appeal.

[17] The appeal is dismissed.

“J. C. MacPherson J.A.”

“Paul Rouleau J.A.”

“Karakatsanis J.A.”