WARNING

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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rhodes, 2023 ONCA 403

DATE: 20230608

DOCKET: COA-22-CR-0042

Feldman, Thorburn and Coroza JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Dennis Rhodes

Appellant

Dennis Rhodes, appearing by video conference

Dan Stein, appearing as duty counsel

Nicholas Hay, for the respondent

Heard: February 7, 2023 and adjourned for further transcripts and written submissions.

On appeal from the conviction entered on December 13, 2021 and the sentence imposed on March 22, 2022 by Justice Martha Zivolak of the Ontario Court of Justice.

REASONS FOR DECISION

[1] In August 2011, the complainant was a 19-year-old university student alone in her room at around 4:00 a.m. when an intruder broke in wearing a hood and a bandana over his face. He told her “You will do what I say”, but then only wanted to talk. He sat down at the end of the bed and stayed for three hours. The complainant asked him to leave a number of times, but he refused. At one point he asked her if she had marijuana to smoke and if she had cigarette papers to roll. She only had a pipe. He allowed her to get out of bed, put on her robe while he looked away, and go to another room to retrieve the pipe.

[2] He smoked three bowls of marijuana from the pipe. She also took a few puffs. Eventually he agreed to leave.

[3] The trial took place 10 years later after the appellant’s DNA was positively identified on the pipe. The complainant was not able to identify the intruder except she believed he had blue-grey eyes, although she was not certain. The appellant has brown eyes.

[4] The appellant was convicted of three offences: break and enter with intent, disguise with intent and forcible confinement. He was acquitted of sexual assault. He was sentenced to 2 years concurrent on each count minus 566 days of pre-sentence custody, leaving 164 days to be served consecutive to the sentence(s) he was then serving, plus three years’ probation.

[5] The appellant appeals his convictions and his sentence. He was assisted by duty counsel at the hearing and with subsequent written submissions on the conviction appeal.

[6] The oral hearing was adjourned to allow the Crown to order the transcript of the evidence of the complainant. Counsel each provided a factum after receipt and review of the evidence.

[7] The appellant submitted that the verdict was unreasonable because there was no proof that the appellant’s DNA was not placed on the pipe at an earlier date. The complainant’s evidence was that, before the incident, she took the pipe to parties while she was a student and allowed other people to smoke it.

[8] There were four DNA profiles identified on the pipe. Only one was from a male. The complainant was shown a photograph of the appellant that had been taken on July 31, 2017. Her evidence was that she had never seen him before including at the parties where she smoked weed with other people.

[9] The appellant’s theory was that because it was open on the evidence that he smoked the pipe at a party that the complainant attended, it could not be found beyond a reasonable doubt that his DNA was placed on the pipe as the intruder. He also relies on the fact that the complainant said that the intruder’s eyes were bluish grey, while his are brown.

[10] The trial judge rejected these arguments and was satisfied that the Crown had proven beyond a reasonable doubt that the appellant was the intruder. We see no basis to interfere with her conclusion.

[11] The complainant saw the intruder, a male, smoke the pipe. There was only one male DNA profile on the pipe. There was no expert evidence to support a theory that the intruder could have smoked the pipe and left no DNA on it. Nor was there evidence that the appellant had smoked the pipe at the parties. Considering the totality of the circumstances, the trial judge made no error in finding that the male DNA on the pipe came from the intruder. That DNA belonged to the appellant.

[12] The trial judge addressed the eye colour issue. She first noted that the physical description of the intruder by the complainant was very basic, she had a limited opportunity to see his face and the lighting was poor. She next noted that eye colour may not be seen accurately depending on the lighting, and the complainant may have been incorrect in her assessment of the colour of the intruder’s eyes. In that regard, the complainant herself stated that her observation of bluish grey “could be distortion”. The trial judge also noted that people can wear contact lenses that change the appearance of their eye colour. She went on to find, that in any event, the eye colour description did not rule out the appellant as the intruder, as would a missing limb or an extreme height difference, especially in the face of the DNA evidence.

[13] The trial judge’s approach to this issue was appropriate. She considered whether the eye colour evidence was of the nature that could rule out the appellant as the intruder in light of the evidence and concluded that it did not. That conclusion is entitled to deference.

[14] The verdict was not unreasonable. The appeal against conviction is dismissed.

[15] No submissions were made regarding the sentence appeal, which the appellant abandoned at the oral hearing. The sentence appeal is also dismissed.

[16] We thank counsel for their helpful assistance.

“K. Feldman J.A.”

“Thorburn J.A.”

“S. Coroza J.A.”