R. v. Nicholas (E.S.), (2004) 184 O.A.C. 139 (CA)

• Judge: Abella, Feldman and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 27, 2004
• Jurisdiction: Ontario
• Citations: (2004), 184 O.A.C. 139 (CA)

R. v. Nicholas (E.S.) (2004), 184 O.A.C. 139 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MR.004

Her Majesty the Queen (appellant/respondent on conviction appeal) v. Eli Stewart Nicholas (respondent/appellant on conviction appeal)

(C36906; C36188; C36025)

Indexed As: R. v. Nicholas (E.S.)

Ontario Court of Appeal

Abella, Feldman and Armstrong, JJ.A.

February 27, 2004.

Summary:

The accused was charged with offences perpetrated on three victims, F.G., G.W. and A.U. The accused was convicted of sexual assault and break and enter with respect to F.G. He was acquitted of assault with respect to G.W. The accused was also acquitted of sexual assault with respect to A.U. The accused appealed against his conviction. The Crown appealed against the acquittals.

The Ontario Court of Appeal dismissed the accused's conviction appeal. The court allowed the Crown's appeal against the acquittals and ordered a new trial.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The accused was identified as a "person of interest" with respect to an investigation relating to a particular series of break and enter and sexual assaults - Two police officers attended at his home - The officers asked the accused for permission to obtain bodily samples including blood or saliva for scientific testing that included DNA analysis - The accused obliged - He signed a consent form whose dates were limited to June 23 and August 21 - He provided samples - After analysis, the police learned that the DNA samples obtained from the accused matched DNA found at crime scenes respecting events that occurred on August 21 and September 13, 1999 - The trial judge found that the accused's s. 8 Charter right was breached by the use of the DNA sample in connection with the September 13, 1999, events - The trial judge nevertheless admitted the DNA evidence where the breach was not a serious one - The Ontario Court of Appeal affirmed the decision - See paragraphs 20 to 34, 51 to 53.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was identified as a "person of interest" with respect to an investigation relating to a particular series of break and enter and sexual assaults - Two police officers attended at his home - The accused was just coming out of the bathroom and was wearing a towel - The officers waited while the accused got dressed - It was agreed to use the kitchen to talk - The officers asked the accused for permission to obtain bodily samples including blood or saliva for scientific testing that included DNA analysis - The officers said that the accused was not required to provide samples and could discuss the matter with anybody including a lawyer - The accused said that he understood what he was told - He then signed a consent form, swabbed the inside of his mouth and handed the swabs to the officers - After analysis, the police learned that the DNA samples obtained from the accused matched DNA found at assault, sexual assault and break and enter crime scenes - The accused was arrested and charged - An issue arose as to whether the accused was detained when the police officers attended at his residence - The Crown conceded that if the accused was detained, his s. 10(b) right to counsel was violated - The Ontario Court of Appeal affirmed that the accused was not detained - See paragraphs 6 to 50.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - The Ontario Court of Appeal held that the trial judge erred in excluding similar fact evidence where the evidence was so strikingly similar as to elevate the probative value over the inevitable prejudice - The modus operandi of the intruder in assaulting elderly female victims with disabled husbands, stealing only a small amount of money, and wandering throughout the victims' houses drinking orange juice, as well as the time, geographic location, and pattern of the acts, rendered it objectively improbable that the accused's involvement was the product of coincidence - See paragraphs 55 to 75.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The victim of a sexual assault called 911 ten minutes after the aggressor left - The call lasted 11 minutes - Six hours later, the victim gave an unsworn videotaped statement to the police - The trial judge found that the 911 call was admissible as res gestae and as being necessary and reliable - The videotaped statement was also ruled admissible as necessary and reliable - However, the trial judge exercised his residual discretion and excluded both statements where the accused's right to full answer and defence would be violated since the victim was unable to attend court and could not be cross-examined - The Ontario Court of Appeal affirmed the trial judge's findings respecting admissibility but reversed this ruling on exclusion - In the absence of any evidence indicating how the admission of the statements would actually prejudice the accused and the trial process, having found them to be necessary and reliable, there was no basis for excluding them - See paragraphs 76 to 101.

Evidence - Topic 1722

Hearsay rule - Hearsay rule exceptions and exclusions - Res gestae - Utterances as part of the issue or event - Statements of victim - [See Evidence - Topic 1527 ].

Cases Noticed:

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 92 C.C.C.(3d) 404; 33 C.R.(4th) 147, refd to. [para. 26].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1, refd to. [para. 29].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321, refd to. [para. 30].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405, refd to. [para. 33].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481, consd. [para. 36].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 63 C.R.(3d) 1; 40 C.C.C.(3d) 411, refd to. [para. 36].

R. v. Bazinet (1986), 14 O.A.C. 15; 25 C.C.C.(3d) 273 (C.A.), consd. [para. 37].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), consd. [para. 38].

R. v. Caputo (E.) (1997), 98 O.A.C. 30; 114 C.C.C.(3d) 1 (C.A.), refd to. [para. 40].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113; 174 C.C.C.(3d) 67 (C.A.), consd. [para. 41].

R. v. Blackstock (R.L.), [1997] O.A.C. Uned. 403 (C.A.), consd. [para. 47].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 48].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 321, refd to. [para. 59].

R. v. Harvey (A.W.) (2001), 152 O.A.C. 162; 57 O.R.(3d) 296 (C.A.), affd. (2002), 313 N.R. 190; 180 O.A.C. 254; 169 C.C.C.(3d) 576 (S.C.C.), refd to. [para. 63].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481, consd. [para. 69].

R. v. Fisher (2003), 208 Sask.R. 91; 305 W.A.C. 91 (C.A.), refd to. [para. 74].

R. v. Dakin (W.E.) (1995), 80 O.A.C. 253 (C.A.), consd. [para. 88].

R. v. Clark (1983), 7 C.C.C.(3d) 46 (Ont. C.A.), refd to. [para. 88].

R. v. Khan (1988), 27 O.A.C. 142; 42 C.C.C.(3d) 197 (C.A.), refd to. [para. 88].

R. v. Fleet (E.J.) (2001), 198 N.S.R.(2d) 228; 621 A.P.R. 228; 48 C.R.(5th) 28 (C.A.), refd to. [para. 91].

R. v. Dubois (1997), 118 C.C.C.(3d) 544 (Que. C.A.), refd to. [para. 93].

R. v. R.R. (2001), 151 O.A.C. 1; 159 C.C.C.(3d) 11 (C.A.), affd. (2003), 300 N.R. 230; 169 O.A.C. 180 (S.C.C.), refd to. [para. 93].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 96].

Authors and Works Noticed:

Watt, David, Manual of Criminal Evidence (5th Ed. 2002), pp. 368 to 372 [para. 91]; 479 [para. 65]

Counsel:

Joan Barrett, for the appellant/respondent on conviction appeal;

Anil Kapoor and Sarah Loosemore, for the respondent/appellant on conviction appeal.

This appeal was heard on October 14 and 15, 2003, by Abella, Feldman and Armstrong, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Abella, J.A., and released on February 27, 2004.