R. v. Johnson (N.)

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Berger, Ritter and Rowbotham, JJ.A.
• Citation: (2010), 482 A.R. 371 (CA),2010 ABCA 230
• Date: 19 July 2010

R. v. Johnson (N.) (2010), 482 A.R. 371 (CA);

      490 W.A.C. 371

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.087

Her Majesty The Queen (respondent) v. Neil Johnson (appellant)

(0803-0303-A; 2010 ABCA 230)

Indexed As: R. v. Johnson (N.)

Alberta Court of Appeal

Berger, Ritter and Rowbotham, JJ.A.

July 19, 2010.

Summary:

In 1995, a seven year old girl was abducted from her bedroom and raped by a white teenager with curly, brown hair. A police investigation was unsuccessful, although DNA evidence excluded several male suspects associated with the residence where the girl was spending the night. In 2000, the National DNA Data Bank of Canada was established. In 2003, DNA samples from the girl's pyjamas and quilt were checked against samples in the Data Bank. The samples matched the accused's DNA profile. The accused had no known connection with the girl, but was 18 at the time of the offence and had brown hair. The accused was charged with kidnapping, aggravated sexual assault and forcible confinement. Unchallenged DNA expert evidence was that the likelihood of the DNA coming from someome other than the accused in the Canadian Caucasian population was one to 890 billion. Although the accused had no male siblings, he had several male blood relatives. The expert testified that the likelihood of the DNA sample coming from them could not be determined precisely, but it would be more likely than the one in 890 billion respecting the general public. The trial judge dismissed the accused's application for a directed verdict of acquittal. The trial proceeded and a jury found the accused guilty. The accused appealed, submitting that the trial judge erred (1) in refusing a directed verdict; (2) by failing to adequately instruct the jury respecting the use of DNA evidence; and (3) by in effect permitting the Crown's DNA expert to give an opinion on the ultimate question of the accused's guilt. The accused argued that a verdict of guilt based solely on DNA evidence was unreasonable.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 4352.2

Procedure - Charge or directions - Jury or judge alone - Scientific evidence (incl. DNA evidence) - In 1995, a seven year old girl was abducted from her bedroom and raped by a white teenager with curly, brown hair - A police investigation was unsuccessful, although DNA evidence excluded several male suspects associated with the residence where the girl was spending the night - In 2000, the National DNA Data Bank of Canada was established - In 2003, DNA samples from the girl's pyjamas and quilt were checked against samples in the Data Bank - The samples matched the accused's DNA profile - The accused had no known connection with the girl, but was 18 at the time of the offence and had brown hair - The accused was charged with kidnapping, aggravated sexual assault and forcible confinement - Unchallenged evidence by the Crown's DNA expert was that the likelihood of the DNA coming from someone other than the accused in the Canadian Caucasian population was one in 890 billion - Although the accused had no male siblings, he had several male blood relatives - The expert testified that the likelihood of the DNA sample coming from them could not be determined precisely, but it would be more likely than the one in 890 billion respecting the general public - The Alberta Court of Appeal held that the trial judge did not err in instructing the jury on the use of DNA evidence - The court rejected the submission that the instructions embodied the "prosecutor's fallacy", whereby the jury would believe that the probability of a random match was equated with the probability that the accused was innocent - Apart from this issue being raised for the first time on appeal, the jury was clearly instructed that they could still maintain a reasonable doubt notwithstanding the DNA evidence - Further, the expert's conclusion that "it is within reasonable scientific certainty that the DNA was deposited by the [accused]" was not equivalent to him saying that the accused was guilty beyond a reasonable doubt and giving a prohibited opinion as to the ultimate issue to be decided by the jury - The jury was properly instructed that it was for them to determine the ultimate issue based on all of the evidence - See paragraphs 34 to 61.

Criminal Law - Topic 4359

Procedure - Charge or directions - Jury or judge alone - Directed verdict of "not guilty" - In 1995, a seven year old girl was abducted from her bedroom and raped by a white teenager with curly, brown hair - A police investigation was unsuccessful, although DNA evidence excluded several male suspects associated with the residence where the girl was spending the night - In 2000, the National DNA Data Bank of Canada was established - In 2003, DNA samples from the girl's pyjamas and quilt were checked against samples in the Data Bank - The samples matched the accused's DNA profile - The accused had no known connection with the girl, but was 18 at the time of the offence and had brown hair - The accused was charged with kidnapping, aggravated sexual assault and forcible confinement - Unchallenged evidence by the Crown's DNA expert was that the likelihood of the DNA coming from someone other than the accused in the Canadian Caucasian population was one in 890 billion - Although the accused had no male siblings, he had several male blood relatives - The expert testified that the likelihood of the DNA sample coming from them could not be determined precisely, but it would be more likely than the one in 890 billion respecting the general public - The Alberta Court of Appeal held that the trial judge did not err in dismissing the accused's motion for a directed verdict of not guilty - There was evidence upon which a reasonably instructed jury could convict - The court rejected the accused's submission that the only evidence against him was the DNA evidence and reliance on it alone was unreasonable - There was other circumstantial evidence (age, hair colour, exclusion of other suspects) - See paragraphs 16 to 33.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific evidence - DNA evidence - The Alberta Court of Appeal rejected the submission that "DNA evidence by itself cannot found a conviction" - See paragraphs 30 to 32.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific evidence - DNA evidence - In 1995, a seven year old girl was abducted from her bedroom and raped by a white teenager with curly, brown hair - A police investigation was unsuccessful, although DNA evidence excluded several male suspects associated with the residence where the girl was spending the night - In 2000, the National DNA Data Bank of Canada was established - In 2003, DNA samples from the girl's pyjamas and quilt were checked against samples in the Data Bank - The samples matched the accused's DNA profile - The accused had no known connection with the girl, but was 18 at the time of the offence and had brown hair - The accused was charged with kidnapping, aggravated sexual assault and forcible confinement - Unchallenged evidence by the Crown's DNA expert was that the likelihood of the DNA coming from someone other than the accused in the Canadian Caucasian population was one in 890 billion - Although the accused had no male siblings, he had several male blood relatives - The expert testified that the likelihood of the DNA sample coming from them could not be determined precisely, but it would be more likely than the one in 890 billion respecting the general public - The accused argued that the DNA evidence could be given no weight where the database did not include his close blood relatives - The Alberta Court of Appeal rejected the argument, stating that "this argument would mean that DNA evidence would never be probative in any case. With the exception of full siblings, everyone has a different set of 'close relatives'. If the database used has to include close relatives of the individual whose DNA has been matched with crime scene DNA, then just about as many databases as there are people on Earth would have to be maintained." - The accused was free to challenge the weight of the DNA evidence on an evidentiary basis (crime scene sample could be from one of his close relatives) - That argument was made and obviously rejected by the jury - See paragraphs 26 to 27.

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - [See Criminal Law - Topic 4352.2 ].

Cases Noticed:

R. v. Hutchinson (C.) (2010), 286 N.S.R.(2d) 331; 909 A.P.R. 331; 251 C.C.C.(3d) 51; 2010 NSCA 3, refd to. [para. 13].

R. v. Mazur (C.J.) (2009), 464 A.R. 347; 467 W.A.C. 347; 2009 ABCA 263, refd to. [para. 13].

R. v. Rhee (D.G.), [2001] 3 S.C.R. 364; 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30; 2001 SCC 71, refd to. [para. 14].

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. 14].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 14].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 15].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 15].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 15].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 30 C.C.C.(2d) 424, refd to. [para. 16].

R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241; 35 C.C.C.(3d) 193, refd to. [para. 16].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126; 123 C.C.C.(3d) 225, refd to. [para. 16].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191; 95 C.C.C.(3d) 385, refd to. [para. 19].

R. v. Bourguignon, [1991] O.J. No. 2670 (Gen. Div.), refd to. [para. 28].

R. v. Baptiste (V.M.), [1991] B.C.T.C. Uned. 928 (S.C.), refd to. [para. 28].

R. v. Lafferty, [1993] N.W.T.R. 218; 80 C.C.C.(3d) 150 (S.C.), refd to. [para. 28].

R. v. Watters, [2000] EWCA Crim. 89, dist. [para. 30].

R. v. Lashley, [2000] E.W.J. No. 644 (C.A.), dist. [para. 30].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 1 S.C.R. 44; 251 N.R. 1; 250 A.R. 314; 213 W.A.C. 314; 2000 SCC 2, refd to. [para. 38].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 51].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43; 148 C.C.C.(3d) 41, refd to. [para. 51].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451; 2 C.C.C.(3d) 365, refd to. [para. 52].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [para. 52].

Khan v. College of Physicians and Surgeons (Ont.) (1992), 57 O.A.C. 115; 9 O.R.(3d) 641; 76 C.C.C.(3d) 110 (C.A.), refd to. [para. 52].

R. v. Karas (L.F.) (2007), 422 A.R. 344; 415 W.A.C. 344; 2007 ABCA 362, refd to. [para. 63].

Counsel:

J.B. Dartana, for the respondent;

M.R. Bloos, Q.C., for the appellant.

This appeal was heard on April 1, 2010, before Berger, Ritter and Rowbotham, JJ.A., of the Alberta Court of Appeal.

The following judgment of the court was delivered by Ritter, J.A., and filed on July 19, 2010.