R. v. B.D.,

• Jurisdiction: Ontario
• Judge: Gillese, Simmons and Blair, JJ.A.
• Neutral Citation: 2011 ONCA 51
• Citation: 2011 ONCA 51,(2011), 273 O.A.C. 241 (CA),266 CCC (3d) 197,[2011] OJ No 198 (QL),273 OAC 241,[2011] O.J. No 198 (QL),273 O.A.C. 241,(2011), 273 OAC 241 (CA)
• Date: 28 October 2010
• Court: Court of Appeal (Ontario)

R. v. B.D. (2011), 273 O.A.C. 241 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JA.030

Her Majesty the Queen (respondent) v. B.D. (appellant)

(C46638; 2011 ONCA 51)

Indexed As: R. v. B.D.

Ontario Court of Appeal

Gillese, Simmons and Blair, JJ.A.

January 20, 2011.

Summary:

The accused, a 47-year old female, was married to a man (the co-accused) who was 21 years old at the relevant time and with whom she had at least three children. The Crown contended that the co-accused was the accused's son. The accused maintained that the co-accused was not her son, but a descendent of Nigerian/Ethiopian royalty.

The Ontario Superior Court, sitting with a jury, convicted the accused of incest and 46 counts of forgery and uttering forged documents. The co-accused was convicted of incest and two counts of uttering forgeries and two counts of fabricating evidence in respect of a family court child protection proceeding. The accused appealed. The co-accused did not appeal.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1404.2

Security of the person - Law enforcement - DNA samples - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused appealed forgery-related charges - She submitted that her s. 7 and s. 8 Charter rights were violated when the police, acting on a tip from a store manager, obtained a warrant and seized various order forms and some of the photocopies that the accused had discarded in the trash can at the store - The Ontario Court of Appeal rejected that ground of appeal - The accused could have no reasonable expectation of privacy in the documentation she left, discarded, in a store frequented by the general public - In addition, there was ample evidence upon which the trial judge could reject the claim that the store manager was acting as an agent of the police in the circumstances - See paragraphs 14 and 15.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused and co-accused were convicted of incest - The accused appealed - The Ontario Court of Appeal dismissed the appeal - Although s. 487.05 of the Criminal Code did not authorize the making of DNA comparisons between samples taken from the targets of the authorizing warrants themselves (the accused and co-accused) in the single-step fashion resorted to, the evidence concerning those comparisons was not excluded under s. 24(2) of the Charter - The police acted in good faith, and the blood sample that was taken from the accused was taken by way of a validly authorized DNA warrant - The s. 8 Charter violation was not in the taking of the sample but in its subsequent use for a purpose not authorized under s. 487.05(1), although the police were not aware of that at the time - Thus, there was no deliberate or egregious police conduct - There was very little impact on the privacy, bodily integrity and human dignity of the accused - Also, the police could have accomplished in two steps that which they mistakenly attempted to accomplish in one - Finally, the DNA analysis evidence was reliable, and pointed clearly to the accused being the co-accused's mother - Depriving the jury of that evidence would risk an error that might compromise the public's interest in having the case adjudicated on the merits - See paragraphs 84 to 91.

Criminal Law - Topic 705

Sexual offences - Particular offences - Incest - The accused had seven children, the eldest of whom was alleged by the Crown to be the father ("Wafi") of her three youngest children - The death of one of those three triggered a police investigation - The police began to suspect incest - They sought and were granted DNA warrants under s. 487.05(1) of the Criminal Code, authorizing the taking of a blood sample from each of the accused and Wafi - The subsequent tests established that the accused and Wafi were the parents of the deceased child, and that the accused was Wafi's mother - The accused and Wafi were convicted of incest - The accused appealed - A substantive ground of appeal was that the trial judge erred by failing to strike down the DNA warrants - The Ontario Court of Appeal dismissed the appeal - Although s. 487.05 did not authorize the making of DNA comparisons between samples taken from the targets of the authorizing warrants themselves (the accused and Wafi) in the single-step fashion resorted to, the evidence concerning those comparisons ought not to be excluded under s. 24(2) of the Charter - See paragraph 9.

Criminal Law - Topic 3072

Special powers - Forensic DNA analysis - Validity of warrant (incl. jurisdiction for DNA sample order) - The accused had seven children, the eldest of whom was alleged by the Crown to be the father ("Wafi") of her three youngest children - The coroner's report on the death of one of those three ("Wafu") had triggered a police investigation - The police were granted DNA warrants under s. 487.05(1) of the Criminal Code, authorizing the taking of a blood sample from the accused and from Wafi - The tests established that the accused and Wafi were Wafu's parents, and that the accused was Wafi's mother - The accused and Wafi were convicted of incest - The accused appealed - She submitted that the police should have obtained a fresh warrant for the use of Wafu's blood sample properly gathered for toxicology testing to determine cause of death, but then used to learn about the accused's DNA - The Ontario Court of Appeal rejected the submission that a parent, in this case the accused, retained a privacy interest in the blood taken from the deceased child's body when the purpose of seizing the blood was to gather genetic information about the parent in furtherance of a criminal investigation concerning the parent - In addition, there was ample evidence to support the trial judge's finding that, in fact, the accused did not have any reasonable expectation of privacy in the dead child's blood - See paragraphs 57 to 61.

Criminal Law - Topic 3072

Special powers - Forensic DNA analysis - Validity of warrant (incl. jurisdiction for DNA sample order) - The accused appealed her conviction for incest - She submitted that two of the pre-conditions for resort to a s. 487.05(1) DNA warrant had not been met; specifically, (1) that the police must have found or obtained the bodily substance referred to in s. 487.05(1)(b) at a place associated with the crime scene, which they did not do; and (2) that the "bodily substance" found or obtained must be that of the target of the warrant sought - The Ontario Court of Appeal disposed of those points in the following manner - It is not a requirement of s. 487.05(1) that the "bodily substance" referred to in paragraph (b) be found or obtained at a place associated with the crime scene - The use of the disjunctive "or" at the end of s. 487.05(1)(b)(iii) of the list of considerations made it clear that the bodily substance need only be found on one of the locations listed, not in all of them - Nor was s. 487.05(1)(b) to be read so narrowly as to confine it to bodily substances of the suspect or target of the warrant in question - An analysis of the wording of s. 487.05(1) bore out the broader interpretation suggested in the case law - See paragraphs 62 to 65.

Criminal Law - Topic 3072

Special powers - Forensic DNA analysis - Validity of warrant (incl. jurisdiction for DNA sample order) - The accused had seven children, the eldest of whom was alleged by the Crown to be the father ("Wafi") of her three youngest children - The coroner's report on the death of one of those three ("Wafu") had triggered a police investigation - They sought and were granted DNA warrants under s. 487.05(1) of the Criminal Code, authorizing the taking of a blood sample from the accused and from Wafi - The tests established that the accused and Wafi were Wafu's parents, and that the accused was Wafi's mother - The accused and Wafi were convicted of incest - The accused appealed - The Ontario Court of Appeal held that s. 487.05(1) authorized the seizure of blood from the accused and from Wafi, in order to perform an analysis comparing their DNA to Wafu's - All the pre-conditions required for a s. 487.05 warrant were met because the Information to Obtain set out reasonable and probable grounds to believe that: (i) a designated offence (incest) had been committed; (ii) a bodily substance (the DNA found in Wafu's blood sample) had been found within the body of the victim of the offence (Wafu), or within the body of a person associated with the commission of the offence (Wafu); (iii) the accused and Wafi were parties to the offence; and (iv) the forensic DNA analysis of the accused's and Wafi's blood would provide evidence about whether the DNA in Wafu's blood "was from" the accused and Wafi - See paragraph 66.

Criminal Law - Topic 3072

Special powers - Forensic DNA analysis - Validity of warrant (incl. jurisdiction for DNA sample order) - DNA analysis of a deceased's child's blood was relevant to a Crown issue regarding an incest prosecution against the accused and the co-accused - The Ontario Court of Appeal was satisfied that for the purposes of a reasonable interpretation of s. 487.05(1) of the Criminal Code, DNA was "a bodily substance" - The broad purpose of the s. 487.05(1) warrant provisions was to permit the compulsory taking of samples of bodily substances from suspects for purposes of comparing those substances with another bodily substance obtained in the circumstances described in s. 487.05(1)(b) with a view to obtaining a match that would advance a criminal investigation against those suspects - In the end result, s. 487.05(1) applied to permit the issuance of the DNA warrants in this case for the purposes of comparing the deceased's child's DNA with that of the accused and that of the co-accused - See paragraphs 67 to 73.

Criminal Law - Topic 3072

Special powers - Forensic DNA analysis - Validity of warrant (incl. jurisdiction for DNA sample order) - DNA warrants authorized the police to take a blood sample from each of the accused and the co-accused (the accused's son) in order to compare their DNA with that of their deceased child ("Wafu") and to determine whether Wafu was the product of an incestuous sexual relationship between the accused and co-accused - At the time the Information to Obtain was presented to the judge, no bodily substance had as yet "been found or obtained" in or from either the accused or co-accused - The DNA expert compared the DNA profiles of the accused and co-accused, and concluded that the accused was the mother of the co-accused - The Ontario Court of Appeal concluded that the comparison was not permitted by s. 487.05(1) - To hold otherwise would require the past-tense words "has been found or obtained" in s. 487.05(1)(b) to be interpreted to mean the future-tense words "may be found or obtained" - "That a bodily substance (a DNA profile) may be found subsequent to the issuing of the warrant sought, is not enough" - See paragraphs 74 to 83.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - A ground of appeal raised by the accused concerned the trial judge's failure to charge the jury on the interconnection between findings of credibility and the doctrine of reasonable doubt, in view of conflicting testimony between the defence and Crown witnesses - The Ontario Court of Appeal stated that "[a]s a general rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence. Different considerations arise, however, when conflicting evidence is presented to the jury on an essential element and the jury is required to make credibility findings with respect to that conflicting evidence" - See paragraph 96.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - A ground of appeal raised by the accused concerned the trial judge's failure to charge the jury on the interconnection between findings of credibility and the doctrine of reasonable doubt, in view of conflicting testimony between the defence and Crown witnesses - The Ontario Court of Appeal stated that there was some uncertainty in the jurisprudence "about whether the W.(D.) requirement extends beyond cases where the accused testifies to those where the accused does not but there is other defence evidence called contradicting the Crown's case and/or conflicting evidence favourable to the defence in the Crown's case (for example, an exculpatory remark in a statement put in by the Crown), and the jury must make credibility findings in that context. This Court has not yet squarely decided that issue" - From a review of the authorities, the court was satisfied that the principles underlying W.(D.) were not confined merely to cases where an accused testified and his/her evidence conflicted with that of Crown witnesses - See paragraphs 105 to 114.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The Ontario Court of Appeal stated that "[w]here on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt ... In that event, they must acquit" - In the case at bar, the court concluded that the charge to the jury was flawed - The charge, when read as a whole, did not properly explain to the jury the appropriate burden and standard of proof in connection with the central credibility finding the jurors were required to make - It was therefore flawed - See paragraphs 114 and 115.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused, a 47-year old female, was married to a man (the co-accused) who was 21 years old at the relevant time and with whom she had at least three children - The Crown contended that the co-accused was the accused's son ("Wafi") - The accused maintained that the co-accused was not her son, but a descendent of Nigerian/Ethiopian royalty ("Prince") - The accused and co-accused were convicted of incest - The accused appealed - A ground of appeal concerned the trial judge's failure to charge the jury on the interconnection between findings of credibility and the doctrine of reasonable doubt - The Ontario Court of Appeal held that it was an error to leave the jurors with the impression that they had to choose between whether the co-accused was Wafi or Prince, based essentially on a contest between the Crown and defence evidence, when all that was required was a reasonable doubt about whether he was Wafi - While the trial judge erred in his charge to the jury with respect to the application of the doctrine of reasonable doubt to the defence evidence, this was "one of those very rare cases where the curative proviso found in s. 686(1)(b)(iii) applies in such circumstances" - See paragraphs 94 to 101.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused, a 47-year old female, was married to the co-accused and they had at least three children - The Crown contended, and the jury accepted, that the co-accused was the accused's son - The accused and co-accused were convicted of incest - On her conviction appeal, the accused sought to introduce fresh evidence, namely, that the police improperly "Crown shopped" regarding the appropriateness of using s. 487.05(1) of the Criminal Code to obtain a warrant for DNA samples - The Ontario Court of Appeal did not admit the fresh evidence or give effect to the argument - The advice the police received was neither particularly relevant to the issues at trial nor dispositive - There was no suggestion that the police misled the issuing justice, and they had no obligation to disclose their discussions to him - "Discussions of this nature, to the extent they involve the giving of legal advice, are privileged" - See paragraphs 11 to 13.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - The accused appealed her conviction for incest - The trial judge erred in law in his instructions to the jury with respect to the application of reasonable doubt - The question remained whether the Crown might rely on the curative provisions of s. 686(1)(b)(iii) of the Criminal Code, namely, if, in spite of the error, "no substantial wrong or miscarriage of justice has occurred" - The Ontario Court of Appeal did not take the authorities to foreclose categorically resort to the curative proviso in all cases where there had been an error relating to the application of the standard of reasonable doubt - However, the court recognized that "in such cases it will be very rare that 'the force of the Crown's case' will be such that the evidence will be so overwhelming that on that evidence a properly instructed jury would necessarily return a verdict of guilty absent the error" - This was one of those rare cases - In the "unusual circumstances", the curative proviso applied, and the conviction stood - See paragraphs 117 to 123.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 12].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 12].

R. v. Sanderson (W.), [2000] O.T.C. 470; 76 C.R.R.(2d) 23 (Sup. Ct.), refd to. [para. 59].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 60].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 60].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 60].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [para. 65].

R. v. L.S.M. (1999), 174 N.S.R.(2d) 286; 532 A.P.R. 286 (S.C.), refd to. [para. 72].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 76].

R. v. D.K., [2010] O.T.C. Uned. 1827; 2010 ONSC 1827, refd to. [para. 80].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 85].

R. v. W.(D.) - see R. v. D.W.

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 94, footnote 6].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 104].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 104].

R. v. Do (T.) et al. (2003), 171 O.A.C. 92; 175 C.C.C.(3d) 176 (C.A.), refd to. [para. 104].

R. v. Edgar (D.J.) (2010), 269 O.A.C. 171; 101 O.R.(3d) 161 (C.A.), refd to. [para. 104].

R. v. Challice (1979), 45 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 106].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 107].

R. v. Parrington (1985), 9 O.A.C. 76; 20 C.C.C.(3d) 184 (C.A.), refd to. [para. 107].

R. v. Chan (1989), 100 A.R. 133 (C.A.), refd to. [para. 107].

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168; 70 C.C.C.(3d) 67 (C.A.), refd to. [para. 109].

R. v. Nagra (H.S.) (1993), 26 B.C.A.C. 81; 44 W.A.C. 81, revd. [1994] 1 S.C.R. 355; 164 N.R. 191; 40 B.C.A.C. 79; 65 W.A.C. 79, refd to. [para. 109].

R. v. Campbell (C.) (1995), 82 O.A.C. 153; 24 O.R.(3d) 537 (C.A.), refd to. [para. 109].

R. v. C.S. (1999), 172 Nfld. & P.E.I.R. 175; 528 A.P.R. 175 (Nfld. C.A.), refd to. [para. 109].

R. v. Haroun (J.), [1997] 1 S.C.R. 593; 209 N.R. 6, refd to. [para. 109].

R. v. C.P., 2003 CarswellQue 2238 (C.A.), refd to. [para. 109].

R. v. Boyer, 2000 CarswellOnt 626 (C.A.), refd to. [para. 109].

R. v. T.L., [2008] O.A.C. Uned. 539; 2008 ONCA 763, refd to. [para. 113].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 118].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 118].

R. v. Pickton (R.W.) (2010), 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 257 C.C.C.(3d) 296; 2010 SCC 32, refd to. [para. 118].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285; 2008 SCC 57, refd to. [para. 118].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 118].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 118].

R. v. Brydon (J.L.), [1995] 4 S.C.R. 253; 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81, refd to. [para. 119].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 119].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 119].

R. v. M.A., [2006] O.A.C. Uned. 529; 214 C.C.C.(3d) 38 (C.A.), refd to. [para. 119].

R. v. Taylor (C.R.) (2001), 143 O.A.C. 351; 54 O.R.(3d) 314 (C.A.), refd to. [para. 119].

Authors and Works Noticed:

Healy, Patrick, Credibility and the Presumption of Innocence (2007), 11 Can. Crim. L. Rev. 217, pp. 220, 221 [para. 109].

Counsel:

Paul S. Lewin and Daniel Stein, for the appellant;

Benita Wassenaar, for the respondent.

This appeal was heard on October 28, 2010, by Gillese, Simmons and Blair, JJ.A., of the Ontario Court of Appeal. In reasons written by Blair, J.A., the Court of Appeal delivered the following judgment, released on January 20, 2011.