



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), (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    that could identify the complainant or a witness shall not be published in any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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicholas, 2017 ONCA 646

DATE: 20170810

DOCKET: C56750

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eli Stewart Nicholas

Appellant

Daniel J. Brodsky, for the appellant

Jocelyn Speyer, for the respondent

Heard: May 1, 2017

On appeal from the convictions entered by Justice Tamarin
    M. Dunnet of the Superior Court of Justice, sitting without a jury, on October
    25, 2006, from the convictions entered by Justice Tamarin M. Dunnet, sitting
    with a jury, on November 27, 2006, and from the sentence imposed on June 1,
    2010, with reasons reported at 2010 ONSC 2929.

Trotter J.A.:

A.

introduCtion

[1]

Eli Nicholas was found guilty of breaking into the home of a 68-year-old
    woman and assaulting her by holding a pillow over her face. He was also found
    guilty of breaking into the home of another woman, aged 54, and raping her. He
    was declared a dangerous offender and received an indeterminate sentence.

[2]

Mr. Nicholas appeals, arguing that his
Charter
rights were
    infringed when the police seized a sample of his saliva for DNA analysis. He
    also argues that his right to a fair trial was undermined by the failure of the
    police to preserve relevant evidence. Lastly, Mr. Nicholas appeals his
    indeterminate sentence.

[3]

For the following reasons, I would dismiss the appeals.

B.

the facts

[4]

There is no dispute that the Crown proved the appellants guilt beyond a
    reasonable doubt. The following facts provide context for the discussion of the
    issues raised on appeal.

(1)

The Police Investigation and the Offences

[5]

In 1999, the Toronto police set up a Task Force to investigate a string
    of break-ins and sexual assaults in the Scarborough area believed to be
    committed by the so-called Scarborough Bedroom Rapist.

[6]

A.U. was 68 years old at the time and lived with her husband who was
    physically disabled. She awoke one morning to find an intruder holding a pillow
    over her face. A.U. struggled and the intruder fled. She discovered that $25
    was missing from her wallet. In one of the spare bedrooms, A.U. found an orange
    juice container that was taken from her fridge. The police failed to preserve
    this container for forensic analysis. Consequently, no DNA evidence was
    recovered in relation to A.U.

[7]

The appellant broke into the home of G.W., who was 54. He rummaged
    through the main floor and stole a small sum of money. Brandishing a cordless
    drill he found in the house, the appellant went upstairs to G.W.s bedroom,
    where she was sleeping. The appellant covered her face with a pillow and raped
    her while repeatedly hitting her in the head and face. The appellants semen
    was found in G.W.s vagina.

[8]

While not the subject of this appeal, it is relevant to explain another
    incident. The appellant was also charged with offences in relation to F.G., a
    75-year-old woman. She awoke one night to find the appellant lying on top of
    her. She struggled, and he fled. Twenty dollars was taken from her wallet. An
    orange juice container had been taken from her fridge and left in another room.
    The appellants DNA was found on the container.

(2)

The First Trial and Appeal

[9]

Originally, the appellant was jointly tried in relation to all three
    incidents. He was found guilty of the F.G. offences, but acquitted of the A.U.
    and G.W charges. Both the Crown and the appellant appealed. This court
    dismissed the appellants conviction appeal on the F.G. offences, but allowed
    the Crowns appeal and ordered a new trial on the A.U. and G.W. charges: see
R.
    v. Nicholas
(2004), 70 O.R. (3d) 1 (C.A.), leave to appeal refused, [2004]
    S.C.C.A. No. 225.

[10]

The A.U. and G.W. charges were re-tried separately, but before the same
    trial judge. The trial judge heard two pre-trial motions relating to the two issues
    raised on the appellants current appeal against conviction: an application to
    exclude the DNA sample police obtained from the appellant, and a stay
    application for destruction of evidence. Both applications were dismissed.

[11]

The trial of the G.W. charges proceeded first, without a jury. Based on
    an Agreed Statement of Facts, the appellant was found guilty. The A.U. charges
    proceeded as a judge and jury trial. The appellant was found guilty. Based on
    the G.W. convictions, the appellant was declared a dangerous offender and
    received an indeterminate sentence.

C.

the issues

(1)

The DNA Sample

[12]

The appellant claims that his
Charter
rights were infringed
    when the police seized his DNA during their investigation. This ground of appeal
    relates to the G.W. charges only. As already noted, there was no DNA link to
    the A.U. charges.

[13]

The appellant alleges two breaches: (1) his consent to providing a DNA
    sample was invalid because it was not properly informed, thereby violating s. 8
    of the
Charter
; and (2) he was detained when he provided his sample
    and was not advised of his right to counsel under s. 10(b) of the
Charter
.
    He argues that the DNA evidence ought to have been excluded under s. 24(2). I
    disagree.

(a)

Factual
    Background

[14]

In September of 1999, the police were advised that bodily fluids left at
    the G.W. and F.G. crime scenes generated the same DNA profile. As part of their
    investigation, the police identified persons of interest and asked them to
    provide saliva samples. A person of interest meant anyone who might have
    information concerning the investigation, including witnesses or potential
    perpetrators. If a person of interest agreed to provide a sample, he was asked
    to execute a written consent to the procedure. If the person of interest
    refused, the police would endeavour to surreptitiously obtain a sample from
    items  such as beverage containers or cigarette butts  the individual discarded.

[15]

The police identified over 100 persons of interest. Dozens of men, including
    the appellant, voluntarily provided saliva samples.

[16]

The appellant was identified as a person of interest based on an
    anonymous tip. Two officers went to his residence on September 21, 1999, but he
    was not home. They returned the next day at 10:10 p.m. The police attended at
    that time because the appellant was subject to a recognizance that required him
    to be home between 9 p.m. and 6 a.m., unless in the presence of a surety. At
    the time, the officers did not consider the appellant to be a suspect.

[17]

When the police arrived at the appellants residence, the landlord, who
    also lived on the premises, let them in. He told the police that the appellant
    was taking a shower. He led them to the second-floor landing. The appellant
    came out of the bathroom with a towel around his waist. The officers identified
    themselves and stated their purpose. The appellant asked and was permitted to
    get dressed while the officers stood by.

[18]

The appellant and the officers went downstairs to the kitchen where the
    appellants mother joined them. The police explained to the appellant that he
    was a person of interest. A consent form was read to the appellant twice and
    the officers explained what would happen. The officers audio-recorded this
    interaction.

[19]

The appellant signed the consent form and provided a saliva sample. Among
    other things, the form provided:

You are 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.



I EN Eli Nicholas, have read and understand page 1 and freely
    consent to provide the samples requested for the purpose stated on page 1.

[20]

Before the appellant signed the form, his mother asked the officers
    whether her son should speak to a lawyer first. They said, Its up to him. After
    the appellant provided a sample and answered some questions, the police left.

[21]

I pause here to note that the consent form was inaccurate in one, minor respect
     it omitted the date on which the A.U. offences were committed (June 2, 1999).
    However, the appellant was asked about all relevant dates during the subsequent
    questioning by the police. He could not remember where he was on any of the
    offence dates.

[22]

Returning to the appellants status at the time of the investigation, at
    trial, one of the officers was asked whether the police believed they had found
    the man they were looking for when they left the appellants home with his
    saliva sample. The officer answered:

You know, sir, essentially, Mr. Nicholas was another detail,
    another swab, if you will, nothing more. There was nothing spectacular or
    outstanding about the man in any way that I felt that I would contact the lead
    detective about him.

[23]

Following his arrest on September 25, 2009, the appellant told an
    officer: I voluntarily gave you my sample, man. I didnt do anything. He told
    another officer that he had been cooperative because he had nothing to hide.
    The police executed a search warrant at the appellants home and discovered rap
    lyrics that he had written. The lyrics referred to DNA and solving a murder.

[24]

The appellant testified on the
voir dire
. He was 27 years old.
    He recalled the officers coming to his home on September 22, 1999. The
    appellant identified his signature on the consent form, but could not remember
    the officers explaining why they wanted him to sign it.

[25]

The appellant testified that he did not ask to speak to a lawyer because
    he did not think it would make a difference. He said he was afraid of the
    officers and felt trapped because his recognizance prevented him from leaving the
    house. The appellant felt threatened by the tone of the officers voices and
    their body language. He testified that one of the officers told him that, if he
    did not cooperate, the officers would return. The appellant thought the police
    would use whatever means necessary to get a sample, including violence.

[26]

Dr. Nathan Pollock, a psychologist, was called as a witness by the
    defence. He performed psychological testing on the appellant and studied the
    consent form. Dr. Pollock testified that the appellant had below average
    intellectual abilities. He described the appellant as naïve, suspicious of the
    motives of others, with a strong need for acceptance and approval. In the
    presence of the police that day, the appellant may have perceived threats where
    none existed. Dr. Pollock testified that the appellant would not have been able
    to fully comprehend the document and provide an informed consent.

[27]

In cross-examination, Dr. Pollock identified three possible scenarios in
    relation to the appellants understanding of the consent form: (1) the
    appellant did not realize that he did not understand it; (2) the appellant was
    embarrassed to admit that he did not understand it; or (3) the appellant
    understood it. Dr. Pollock acknowledged that he did not take into account the
    following factors in concluding that the appellant did not understand the form:
    the appellants past experience with the criminal justice system; his decision
    to call a lawyer after his arrest; his rap lyrics; and his statement to the
    police in which he acknowledged giving the sample voluntarily.

(b)

The Trial Judges
    Reasons

[28]

The trial judge admitted the DNA evidence. She provided thorough reasons.
    The trial judge acknowledged that, in
Nicholas
, this court rejected
    the same arguments after the appellants first trial, based in part on the
    appellants failure to testify.

[29]

The trial judge ruled that the appellant was not detained during his
    encounter with the police on the day he provided his sample. She based her
    conclusion on the following nine factual findings: (1) when the police arrived
    at the house, they did not have reasonable grounds to believe the appellant
    committed any of the crimes under investigation; (2) a man with apparent
    authority over the premises, the landlord, let the police into the house; (3)
    the officers agreed to the appellants request to get dressed; (4) the appellant
    was aware of the purpose for which the police were at his residence; (5) the
    tone of the police on the audiotape recording was conversational and
    non-threatening and the applicants responses do not betray any sense of
    intimidation or confusion; (6) had the appellant refused to provide a saliva
    sample, the police would have left, as they had done with other persons of
    interest who refused to cooperate; (7) there was no credible evidence that the
    police threatened the appellant; (8) Dr. Pollocks evidence was of little assistance;
    and (9) the appellants evidence was not credible.

[30]

When the trial judge made her decision on October 23, 2006, she
    was governed by this courts decision on psychological detention in
Nicholas
,
    which relied heavily on
R. v. Moran
(1987), 36 C.C.C. (3d) 225 (Ont.
    C.A.), leave to appeal refused, [1988] 1 S.C.R. xi (note). She also relied upon
    this courts decision in
R. v. Grant
(2006),

81
    O.R. (3d) 1 (C.A.), revd 2009 SCC 32, [2009] 2 S.C.R. 353. The trial judge concluded,
    at para. 87:

In my view, there is nothing about his status
    in the investigation, or in the circumstances surrounding the taking of the
    sample, to conclude that the applicant was either actually or psychologically
    detained at the time he signed the consent and provided the buccal swab sample.
    There was no demand or direction, explicit or implicit, which had any bearing
    on the signing of the consent. Thus, there was no infringement of the
    applicants s. 10(b) rights to counsel.

[31]

On the issue of consent, the trial judge rejected the appellants
    contention that, when he provided his sample, he was a suspect, and not merely
    a person of interest. The trial judge found, at para. 94:

I conclude that the circumstances here do not rise to the
    trigger point. There was nothing, to the knowledge of the police, linking the
    applicant to the A.U. or G.W. crimes or any other crimes under investigation.
    At the time the DNA samples were obtained, the police did not have any
    suspects. To their knowledge, he was another detail, another swab. I also
    find he understood his status in the investigation at that time.

[32]

As to the wording of the consent form, the trial judge said, at para.
    97:

I am of the view that the consent was detailed, informative,
    and sufficient to permit the applicant to cast his mind back to the summer. The
    wording was also sufficient to advise him of the nature of the police conduct
    to which he was being asked to consent, his right to refuse to participate in
    the conduct requested, and the potential consequences of giving the consent. No
    force was used and he was not intentionally misled. The dates in issue were
    specifically mentioned to him and he responded to the questions asked.

[33]

Applying
R. v. Borden
, [1994] 3 S.C.R. 145 and
R. v. Wills

(1992), 7 O.R. (3d) 33 (C.A.), as this court did in
Nicholas
, the
    trial judge found the appellants consent was valid. She reasoned, at para.
    110:

There was nothing in [the appellants] demeanour or in his
    responses to the questions asked by the police to suggest that he did not
    understand what he had been told, including his right to consult a lawyer. The
    police had no reason to assume otherwise. His communications, though brief,
    were responsive and appropriate. There was no outward indication of confusion
    or lack of understanding.

These conclusions were reinforced by the rap lyrics
    found in the appellants bedroom, and by his statements to the police upon
    arrest.

[34]

Despite the appellants valid consent, the trial judge found a s. 8
    breach because the consent form failed to reference the date of the A.U.
    offences. However, she refused to exclude the evidence under s. 24(2) of the
Charter
,
    finding that the breach was inadvertent and technical; the appellants DNA was
    discoverable through discarded samples, especially given that such samples were
    obtained in relation to some of the other persons of interest; and the evidence
    was reliable and crucial to the Crowns case.

(c)

Analysis

[35]

In
Nicholas
, this court found that: (1) the appellant was not detained
    when the police seized his DNA; and (2) he provided a valid consent to the DNA
    sample. As Abella J.A. (as she then was) said, at paras. 45-46:

In view of the trial judges findings and in view of the
    absence of any evidence of psychological compulsion I find no basis for
    disturbing the trial judges finding that Mr. Nicholas was not detained.

The trial judge also found that Mr. Nicholas provided a
    voluntary consent to the DNA sample. I see no basis for disturbing this
    finding.

[36]

Mr. Brodsky argues that this courts decision in
Nicholas
is
    not determinative because the evidentiary record before the trial judge was
    different than it was at the first trial. Importantly, the appellant testified
    on the
voir dire
, whereas he did not to do so the first time around.
    Mr. Brodsky submits that the appellant was not merely a person of interest; he
    was also a suspect. He further argues that the law of detention has developed
    in a way that should affect the outcome of this case.

(i)

Detention

[37]

I acknowledge that the record at the second trial was enlarged by the
    appellants testimony. However, the trial judge rejected his evidence as
    incredible. This finding is entitled to deference and was not challenged on
    appeal. Consequently, the record is essentially the same as the record reviewed
    in
Nicholas
.

[38]

The appellants assertion that he was a suspect when the police visited
    his house to obtain a sample must also be rejected. The finding that the
    appellant was merely a person of interest was available to the trial judge on
    the record before her. Again, deference is the watchword. No reasons were
    advanced for displacing this finding. Moreover, just as an individuals status
    as a suspect versus a person of interest is not determinative in the context of
    the voluntariness inquiry (see
R. v. Pearson
, 2017 ONCA 389, at para.
    19), it is not determinative of the issue of detention. Both suspects and
    persons of interest are capable of being detained, depending on the
    circumstances.

[39]

I agree with Mr. Brodsky that the law of detention has evolved since
    this courts 2004 decision in
Nicholas
, and since the trial judges
    ruling. The Supreme Court addressed psychological detention in the companion
    cases of
Grant
and

R. v. Suberu
, 2009 SCC 33, [2009] 2
    S.C.R. 460. Both cases involved police-citizen encounters on the street, a
    context somewhat removed from the circumstances of the present case. Although the
    principles articulated in these decisions have broader application, the Supreme
    Courts re-statement of the law does not affect the correctness of the trial
    judges conclusions.

[40]

In
Grant
, McLachlin C.J. and Charron J. confirmed the
    long-standing principle that not every police-citizen encounter will amount to a
    detention for
Charter
purposes: see also
R. v. Mann
, 2004 SCC
    52, [2004] 3 S.C.R. 59, at para. 19. They summarized the modern approach to
    psychological detention, at para. 44:

In summary, we conclude as follows:

1.    Detention under ss.
    9 and 10 of the
Charter

refers to a suspension of the individuals liberty interest by a
    significant physical or psychological restraint. Psychological detention is
    established either where the individual has a legal obligation to comply with
    the restrictive request or demand, or a reasonable person would conclude by
    reason of the state conduct that he or she had no choice but to comply.

2.    In cases where there is
    no physical restraint or legal obligation, it may not be clear whether a person
    has been detained.  To determine whether the reasonable person in the
    individuals circumstances would conclude that he or she had been deprived by
    the state of the liberty of choice, the court may consider,
inter
    alia
, the following factors:

(a)       The
    circumstances giving rise to the encounter as they would reasonably be
    perceived by the individual: whether the police were providing general
    assistance; maintaining general order; making general inquiries regarding a
    particular occurrence; or, singling out the individual for focussed
    investigation.

(b)       The
    nature of the police conduct, including the language used; the use of physical
    contact; the place where the interaction occurred; the presence of others; and
    the duration of the encounter.

(c)       The
    particular characteristics or circumstances of the individual where relevant,
    including age; physical stature; minority status; level of sophistication.

[41]

Applying this re-worked framework to the evidence adduced at trial, the
    trial judges reasons remain sound and reflect no analytical error. I point to
    the findings set out in para. 29 above, which support the conclusion that the
    appellant was not detained. As the trial judge concluded at para. 87 of her
    reasons: There was no demand or direction, explicit or implicit, which had any
    bearing on the signing of the consent. And as the Crown notes in its factum,
    the only evidence that suggested that the police controlled the appellants
    movements came from the appellant himself  evidence the trial judge rejected
    in its entirety.

[42]

The uncontradicted evidence of the officers was that obtaining a saliva
    sample from the appellant was simply one of many routine tasks that needed to
    be completed in an expansive investigation. There was nothing exceptional about
    the appellant. The trial judge accepted that, had the appellant refused to
    provide a sample, the police would have left. The encounter, most of which was
    audiotaped, revealed no aggressive or intimidating conduct by the police; nor
    did it expose any confusion or sense of intimidation by the appellant.

[43]

The evidence amply justified the trial judges conclusion that the appellant
    was not detained. Consequently, the police had no obligation to advise the
    appellant of his right to counsel under s. 10(b) of the
Charter
.

(ii)

The Validity of the Consent

[44]

There is no error in the trial judges finding
    that the appellant gave a valid consent to the seizure of his saliva. Given
    that the trial judge rejected the appellants evidence, this courts earlier
    decision in
Nicholas
is a helpful touchstone
    on this appeal. The trial judge applied the same governing authorities (i.e.,
Wills

and
Borden
).

[45]

The appellant understood what he was being asked
    to do when he provided a sample of his saliva. The consent was read to him
    twice. The record reveals no confusion or hesitation on the appellants part.
    In his subsequent interactions with the police, the appellant referred to his
    prior cooperation. The evidence as a whole supports the conclusion that he
    acted on his own free will, with an appreciation of the consequences.

[46]

The trial judge did not err in finding that the
    consent form itself was adequate in the circumstances. This is consistent with Abella
    J.A.s conclusion in
Nicholas
. Moreover, in
R.
    v. Simon
, 2008 ONCA 578,
269 O.A.C. 259, this court
    approved of a similar consent form. A
s Doherty J.A. said, at para. 60:
    the contents of this waiver track very closely the contents of the waiver
    found to be valid in
R. v.

Nicholas
.

[47]

In terms of the trial judges finding that the omission of an
    offence date from the document amounted to a breach of s. 8 of the
Charter
,
    I agree with her finding that it was inadvertent, technical and minor. The
    officers specifically inquired into the appellants whereabouts on June 2, 1999
     the date omitted from the consent form. The appellant understood why the
    officers were in his home and voluntarily consented to providing a DNA sample.
    The evidence was highly reliable and central to the Crowns case against the
    appellant; a case that hinged entirely on identity. The breach did not warrant
    exclusion under s. 24(2) of the
Charter
under the framework that
    existed at the time of trial; nor does it warrant exclusion under
Grant
.

(2)

The Failure to Preserve Evidence

(a)

Background

[48]

As part of their investigation into A.U.s attack, the police seized two
    boxes and an orange juice carton from her home on June 2, 1999. The evidence
    was sent to the police forensic lab and tested for fingerprints. The tests came
    back negative on July 17, 1999. Believing it to be of no further investigative
    value, the police destroyed the evidence.

[49]

The officer responsible for destroying the evidence believed that the
    A.U. matter was an isolated home invasion  not a crime that was serious enough
    to ask a DNA lab to accept the evidence for testing.

[50]

Andrew Greenfield, a forensic scientist who worked for the DNA lab,
    testified that, at the time of the investigation, the lab would likely only
    accept evidence from break-ins that involved assaults, or from an offence that was
    part of a series of break-ins. He testified that the lab would likely have
    accepted the orange juice container for DNA analysis based on the facts of the
    A.U. offences.

[51]

During the application to stay proceedings, the Crown indicated its
    intention to bring a similar fact application to admit the break-in and assault
    perpetrated against F.G., including evidence relating to the orange juice
    container that had also been taken from her fridge, which tested positive for
    the appellants DNA. The Crown sought to introduce evidence of the orange juice
    container (subsequently destroyed) recovered from A.U.s home to buttress the
    cogency of its similar fact application.
[1]

(b)

The Trial Judges
    Ruling

[52]

The Crown conceded a breach of the appellants s. 7
Charter

rights.
    The trial judge accepted this concession. Applying
R. v. Bero
(2000), 151 C.C.C. (3d) 545 (Ont. C.A.), she held that the actions
    of the police amounted to unacceptable negligence, but not gross negligence. She
    determined that a stay was not an appropriate remedy, in part because it was
    speculative whether DNA testing of the container would have yielded evidence helpful
    to the appellant.

[53]

The trial judge also rejected the alternative remedy of prohibiting the Crown
    from relying on the F.G. offences as similar act evidence. Instead, in
    accordance with
Bero
, the trial judge permitted defence counsel to
    cross-examine police witnesses on their negligent destruction of this
    potentially relevant evidence. Defence counsel took full advantage of this
    opportunity and cross-examined the police witnesses extensively on their
    failure to preserve this evidence. The trial judge also instructed the jury on
    the failure of the police to preserve relevant evidence and its impact on the
    Crowns ability to prove the appellants guilt beyond a reasonable doubt.

(c)

Analysis

[54]

On appeal, there is no challenge to the trial judges refusal to grant a
    stay of proceedings. The appellant argues that the trial judge ought to have
    prevented the Crown from adducing evidence of the orange juice container that
    had been destroyed.

[55]

I would reject this submission. The trial judge exercised her remedial
    discretion under s. 24(1) of the
Charter
, crafting a remedy that
    appropriately corresponded to the seriousness of the breach. There is no basis
    to interfere with her decision.

[56]

Section 24(1) of the
Charter
equips courts with the
    power to fashion remedies considered to be appropriate and just in the circumstances.
    In the early
Charter

case of
R. v. Mills
,
[1986] 1 S.C.R. 863
, McIntyre J. observed, in the oft-quoted
    passage, at p. 965: 
It is difficult to imagine language
    which could give the court a wider and less fettered discretion. See also
Ward
    v. Vancouver (City)
, 2010 SCC 27, [2010] 2 S.C.R. 28, at para.
    17.

[57]

The applicable standard of review corresponds with this broad grant of discretion
    under s. 24(1). In
R. v. Bellusci
, 2012 SCC 44, [2012] S.C.R. 509,
    Fish J. articulated the standard in the following way, at para. 17:

It is well established that a trial judge's
    order under s. 24(1) of the
Charter
should
    be disturbed on appeal "only if the trial judge misdirects himself or if
    his decision is so clearly wrong as to amount to an injustice":
R.
    v. Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at para.
    117;
Canada (Minister of Citizenship & Immigration) v.
    Tobiass
, [1997] 3 S.C.R. 391, at para. 87.

Fish J. also adopted the following passage from his
    reasons in
R. v. Bjelland
, 2009 SCC 38, [2009] 2 S.C.R. 651 (dissenting
    in the result), at para. 42:

Appellate courts may interfere with a trial
    judge's exercise of discretion only if the trial judge has erred in law or
    rendered an unjust decision. This is particularly true of remedies granted by
    trial judges under s. 24(1) of the
Charter
, which by its very terms confers on trial judges the
widest
    possible discretion
. [Emphasis in original.]

[58]

The trial judges ruling responded appropriately
    to the police negligence in failing to preserve the orange juice container. The
    remedy was proportionate to the circumstances of the breach, especially in
    light of the reality that it was completely speculative whether DNA testing
    would have yielded any exculpatory evidence. It was possible that any DNA on
    the orange juice container would have matched the appellants DNA recovered from
    the F.G. and G.W. crime scenes, equipping the Crown with another piece of
    highly inculpatory evidence implicating the appellant in the A.U. offences. The
    trial judges ruling was neither wrong, nor was it unjust.

[59]

I would reject this ground of appeal.

(3)

The Appeal against Sentence

(a)

Introduction

[60]

After the two trials that resulted in the convictions on the A.U. and
    G.W. offences, the Crown applied under s. 753 of the
Criminal Code
,
    R.S.C. 1985, c. C-46 to have the appellant declared a dangerous offender and sentenced
    to an indeterminate period of incarceration. The application was brought in
    relation to the G.W. offences (break and enter, sexual assault and fail to
    comply with a recognizance). The appellant was sentenced separately on the A.U.
    offences (an issue that is not part of this appeal).

[61]

The appellant does not challenge the trial judges conclusion that he
    met the definition of a dangerous offender in s. 753. There was ample evidence
    to support this finding. Instead, the appellant argues that he should not have
    received an indeterminate sentence. I disagree. Again, the trial judges order
    was amply supported by the evidence.

(b)

The Predicate
    Offences

[62]

A brief outline of the G.W. offences is set out in para. 7, above. For
    the purposes of this ground of appeal, more detail is required, especially as
    it relates to the impact of the appellants offences. As the trial judge
    explained in her reasons, at para. 7:

G.W. sustained injuries to her face, inner
    thigh and wrist. However, it was the psychological impact that had a
    devastating effect on her life. She developed a post-traumatic stress disorder
    which, according to psychologist Margaret Voorneveld, impacted her ability to
    carry out her daily activities and rendered her unable to continue with her
    employment as an accounting clerk. Medical evidence was adduced that the
    prospect of having to testify at trial caused a total deterioration in G.W.'s
    psychological status and forcing her to testify could result in a complete
    inability to function. As a result of the actions of Mr. Nicholas, G.W.
    sold her home and moved from the Toronto area where she continues to live a
    reclusive existence. [Footnote omitted.]

(c)

The Appellants
    Background and Criminal History

[63]

At the time of the predicate offences, the appellant was 19 years old.
    His father died when he was 19 months old and he was raised by his mother.

[64]

The appellant began acting out at a very young age. When he was three,
    he behaved very aggressively towards other children. At the age of four, a
    psychiatrist recommended that the appellant receive a special class placement.
    When he was ten, he engaged in sexually inappropriate behaviour, including
    exposing himself and making sexually suggestive comments to female students.

[65]

Between the ages of 13 and 24, the appellant accumulated 36 convictions,
    one third of which demonstrated a disregard for court orders and law
    enforcement. He has other convictions for break and enter, assault and drug
    offences.

[66]

As part of the dangerous offender application, the trial judge relied
    upon the A.U. and F.G. offences. When he was arrested for the F.G., A.U. and
    G.W. offences, the police executed a search warrant at the appellants home.
    They discovered a loaded handgun in his bedroom closet.

[67]

The trial judge also relied on another set of offences committed by the
    appellant after he completed his sentence on the F.G. offences, but prior to
    the hearing of his first appeal to this court.

[68]

On Christmas Day of 2002, the appellant broke into another home. He went
    into the kitchen, opened a can of pop and used the bathroom. B.N., a 49-year-old
    woman, saw the appellant standing at the entrance to her bedroom door. As she
    got out of bed, the appellant ran out of the house through the front door. He
    ran around the house and entered again through the back door. This time he was
    confronted by B.N.s husband, who was wielding a two-by-four. The appellant
    fled.

[69]

Footprints in the snow revealed that, over the next 45 minutes, the
    appellant approached a window or door of 35 different homes in the area. When
    the police apprehended him, he punched one officer in the mouth and kicked
    another. As the trial judge said in her reasons, these offences had a profound
    and devastating impact on B.N. and her family. The appellant received a
    sentence of six years imprisonment for these offences.

(d)

Psychological
    Assessments

[70]

The appellant was assessed by a number of professionals leading up to
    his sentencing hearing. Dr. Nathan Pollock, who also gave evidence at the trial
    (see paras. 26 and 27, above), testified that the appellant had below average
    intellectual abilities. He functioned at a grade five to seven level in math,
    and read at a high school level. Dr. Pollock also concluded that the appellant
    showed social adjustment issues, as well as an antisocial outlook with a
    mistrust of authority figures.

[71]

Pursuant to s. 752.1(1) of the
Criminal Code
, the trial judge
    appointed Dr. Phillip Klassen to assess the appellant. The appellant declined
    to be interviewed for the assessment. Based on his review of the voluminous
    materials documenting the appellants life, Dr. Klassen concluded that the
    appellant met the criteria for the diagnosis of anti-social personality
    disorder.

[72]

Dr. Klassen also concluded that the appellant may suffer from a
    paraphilia known as gerontophilic coercive sexual interest  a preference for
    non-consensual sexual interaction with older females.

[73]

In his report, which was filed as an exhibit, Dr. Klassen noted the
    appellants persistent unwillingness to abide by the terms of court orders or
    to seek treatment. He wrote: unfortunately, this gentleman has, more than any
    assessee in recent memory, consistently declined to adhere to the stipulations
    of conditional release, or to access treatment. After administering numerous
    risk-prediction tests, Dr. Klassen testified that the appellant is at high
    risk, if not very high risk, of serious re-offence.

[74]

As the trial judge noted at para. 68 of her reasons, Dr. Klassen concluded
    that the appellant could not be managed in the community because of his poor
    self-disclosure, poor engagement, criminal lifestyle and rapid recidivism.

[75]

The appellant was also assessed by Dr. John Paul Federoff. He too
    considered that the appellant was at high risk to re-offend. Dr. Federoff also administered
    actuarial risk assessment tests. He said that people with the appellants score
    on one test were reported to have re-offended at a rate of 100% within seven
    years, while 52% of people with the appellants score on a sexual-recidivism
    test sexually re-offended within fifteen years.

[76]

Despite the high likelihood of recidivism predicted by the appellants
    risk-assessment scores, Dr. Federoff was more optimistic about managing the
    appellants risk in the community. He recommended sex-drive reducing
    medication, along with other programming for sex offenders in a secure mental
    health facility, followed by a closely supervised outpatient treatment program.

(e)

The Trial
    Judges Ruling

[77]

The trial judge commenced her analysis by observing that the dangerous
    offender provisions were amended after the predicate offences (in 1999) but
    before the sentencing hearing in 2010. Until amending legislation in 2008, a
    sentencing judge had the discretion not to designate an offender as dangerous
    or to impose an indeterminate sentence even though the criteria were met: see
Lyons
    v. The Queen
, [1987] 2 S.C.R. 309, at pp. 338, 362; and
R. v. Johnson
,
    2003 SCC 46, [2003] 2 S.C.R. 357, at para. 26. The
Tackling Violent Crimes
    Act
, S.C. 2008, c. 6, removed this discretion. Applying s. 11(i) of the
Charter
,
    which guarantees the benefit of lesser punishment, the trial judge concluded
    that the application must be dealt with according to the legislation in force prior
    to the 2008 amendments.

[78]

It was not contested (nor was it conceded) by Mr. Brodsky at the
    sentencing hearing that the appellant met all definitions of a dangerous
    offender in ss. 753(1)(a)(ii), (iii) and (b) of the
Criminal Code
. The
    trial judge gave detailed reasons for finding that these definitions were met:
    see paras. 126-35.

[79]

On behalf of the appellant, Mr. Brodsky contended that the trial judge
    should impose a determinate sentence, with or without a long-term supervision
    order (LTSO). The Crown submitted that an indeterminate sentence was
    required.

[80]

The trial judge determined that there was no reasonable possibility of
    managing the appellants risk in the community. Referring to this courts
    decisions in
R. v. Allen
, 2007 ONCA 421, 86 O.R. (3d) 376, at para. 31;
    and
R. v. Little
, 2007 ONCA 548, 87 O.R. (3d) 683, leave to appeal
    refused, [2008] 1 S.C.R. x (note), at paras. 40-41, the trial judge said, at
    para. 140:

There must be evidence of treatability that is more than a mere
    expression of hope and that indicates that the specific offender can be
    meaningfully treated. An offenders amenability to treatment and the prospects
    for the success of treatment in reducing or containing the offenders risk of
    re-offending are critical factors. [Footnotes omitted.]

[81]

The trial judge concluded that the appellant had been consistently
    resistant to any form of treatment or intervention to address his offending.
    This conclusion was at the heart of the trial judges rejection of Dr.
    Federoffs optimism about monitoring the appellant in the community.

[82]

The trial judge concluded her reasons with the following passage, at
    paras. 174-75:

At the present time, Mr. Nicholas presents as
    an untreated, high risk, repeat sexual offender with a demonstrated
    disinclination to improve himself in any way in the face of repeated offers of
    assistance. Should history be the best predictor of his prospects in treatment,
    then, in my view, Mr. Nicholas will leave the correctional system as he entered
    and he will represent a significant risk to the community. There is no reliable
    evidence that he will be different in the future.

Having regard to the principles of
    proportionality and restraint, I am of the view that neither a determinate
    sentence nor a determinate sentence and an LTSO can reasonably be expected to
    reduce the threat to public safety presented by Mr. Nicholas to an acceptable
    level. Taking into account the practical unenforceability of treatment orders,
    the failure of Mr. Nicholas to participate in programs and his negative history
    and attitude, I am not satisfied on the whole of the evidence that there is a
    reasonable possibility of eventual control of the risk in the community.

(f)

Analysis

[83]

The appellant argues that the trial judge erred by failing to impose a
    determinate sentence. Mr. Brodsky submits that the trial judge placed an insurmountable
    burden on the appellant to prove that the proposed community supervision plan
    would succeed. With respect, I disagree.

[84]

In
R. v. Sawyer
, 2015 ONCA 602, 127 O.R. (3d) 686, this court
    described the scope of appellate review in dangerous offender cases. As Tulloch
    J.A. wrote at para. 26:

Appellate review of a dangerous offender
    designation "is concerned with legal errors and whether the dangerous
    offender designation was reasonable":
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. While deference
    is owed to the factual and credibility findings of the sentencing judge, appellate
    review of a dangerous offender designation is more robust than on a
    "regular" sentence appeal:
Sipos
, at paras. 25-26;
R. v. Currie
, [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, at para. 33.

[85]

The trial judge wrote extensive and careful
    reasons justifying her decision to impose an indeterminate sentence. She
    applied the correct analytical framework. She did not misapprehend any of the
    evidence led at the hearing. The trial judges conclusion that the appellants
    risk could not be managed in the community is amply supported by the evidence. The
    appellants string of brazen home invasions reveals a disturbing pattern of
    violent behaviour. Between June 1999 and December 2002, the appellant broke
    into at least four homes, sexually assaulting two of the elderly women asleep
    inside and assaulting a third.

[86]

The appellants actions immediately before the
    assaults  helping himself to drinks from the fridge, using the washroom, and wandering
    around the house  demonstrate a cavalier attitude towards his offending and a
    complete lack of appreciation for the seriousness of his behaviour. Equally
    concerning, the appellant committed these offences even though he knew police
    were on the lookout for the perpetrator.

[87]

Neither custodial sentences nor court orders
    have had any deterrent or rehabilitative effect. To give but one example, the
    appellant broke into B.N.s home less than 48 hours after being released from
    custody for breaching his probation order imposed as part of his sentence for
    the F.G. offences. As the trial judge found, the appellant has consistently
    refused treatment to help manage his risk.

[88]

A sentence that allowed the appellants high
    risk of serious re-offending to be managed in the community would have involved
    an irresponsible leap of faith, one exposing society at large, and women in
    particular, to an intolerably high risk of violent, sexual offending. It would
    have been contrary to the preponderance of evidence adduced at the sentencing
    hearing. The trial judges decision to impose an indeterminate sentence was the
    only realistic option at the time.

[89]

Nothing has changed. The trial judge made her
    decision to impose an indeterminate sentence just over seven years ago. The
    appellant has been incarcerated ever since. No application was made to adduce
    fresh evidence to shed light on the appellants circumstances or any progress
    he may have made while he has been in custody. This is no criticism of Mr.
    Brodsky, who addressed the court on this issue, and acknowledged that he had
    nothing to work with. This tends to confirm the trial judges scepticism about
    the appellants expressed desire to change and to cooperate with interventions
    to reduce his risk of violent recidivism.

D.

conclusion and disposition

[90]

For these reasons I would dismiss the appeals from conviction and
    sentence.

Released:

AUG 10 2017                                              G.T.
    Trotter J.A.

GH                                                              I
    agree E.E. Gillese J.A.

I
    agree Grant Huscroft J.A.





[1]
In its earlier decision in
Nicholas
,
    this court held, at paras. 63-75, that because of numerous similarities between
    the two sets offences, including the orange juice containers, the evidence was
    admissible as similar fact evidence.


