R. v. Nicholas, 2004 CanLII 13008 (ON CA)
[13] The key portion of the audiotape transcript reads as follows:
Dyck: I'm just gonna read something to you here. It's a consent form, and -- ah I'm just gonna read this. Toronto Police Service is investigating a series of break and enters which have occurred between the twenty-third of June and twenty-first of August Nineteen-ninety-nine, inclusive. During the course of these break and enters female persons have been subjected to either physical or sexual assault. We are seeking permission from you to obtain bodily samples including blood or saliva for scientific testing, including DNA analysis. The samples obtained from you will be scientifically tested and analysed and compared with evidence obtained from the other crime scenes. The purpose of this analysis and comparison is to enable investigators to attempt to positively identify the person responsible for the break and enters, sexual assaults and to also enable the investigators to eliminate the persons as possible suspects. You understand that so far Sir?
Background Noise: (Unintelligible)
Nicholas: Yes
Dyck: 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 wish to discuss this request with anybody including a lawyer and you are free to do so now. Do you understand what I've just read to you sir?"
Nicholas: Yes Sir.
Dyck: Do you have any questions?
Nicholas: No. [page9 ]
[14] Mr. Nicholas's mother, who had come into the kitchen at some point during the interview, then asked the police "[S] houldn't he have a lawyer?" The officers replied that it was "up to him" and told her that Mr. Nicholas had stated that he understood his opportunity to speak "to a lawyer or anyone else for that matter".
[46] The trial judge also found that Mr. Nicholas provided a voluntary and informed consent to the DNA sample. I see no basis for disturbing this finding.
[47] This court in R. v. Blackstock, 1997 CanLII 14495 (ON CA), [1997] O.J. No. 3597 (QL), 30 M.V.R. (3d) 165 (C.A.) at para. 5 held that the Crown "bears the burden of proving an effective consent to the taking of such samples and in many cases, will fail to meet that burden where the police have not expressly told a person that he or she has a right to refuse".
[48] In R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337, 70 C.C.C. (3d) 529 (C.A.), Doherty J.A. listed six factors at p. 353 O.R., p. 546 C.C.C. which the Crown must establish on the balance of probabilities for a finding that an individual waived his or her right to be secure against an unreasonable seizure:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, [1979 CanLII 60 (SCC), [1980] 1 S.C.R. 976] supra, and was not the product of police [page15 ]oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested, and
(iv) the giver of the consent was aware of the potential consequences of giving the consent.
[49] The arguments of defence counsel relate primarily to the last three factors.
[50] The application of the factors in Wills to this case demonstrates that the Crown has established that Mr. Nicholas consented to the seizure of his DNA, at least in relation to the A.U. and G.W. incidents. The police informed Mr. Nicholas twice that they wanted to speak to him about a series of break- ins and sexual assaults. Nicholas was informed that the police were investigating a series of assaults, that he was a person of interest, that the sample would be scientifically analyzed, and that it would be compared with evidence obtained from the crime scenes. The police explicitly told Mr. Nicholas that this comparison was to enable the police to identify the person responsible for the crimes and that the DNA sample could be used in criminal proceedings against him. The consent form stated that the police were seeking permission, and that Mr. Nicholas did not have to provide the sample.
[51] The trial judge found, however, that the use of the sample in the investigation of the September 13, 1999 assault against F.G. breached Mr. Nicholas's Charter right to be secure against unreasonable search and seizure because the consent form did not refer specifically to that date. The appellant submits that he erred in failing to exclude the evidence under s. 24(2).
[52] The trial judge found the police conduct to be, on the whole, beyond reproach. He found the violation not to be a serious one. Moreover, the Crown's evidence was that the police had already successfully obtained discard samples from other individuals who had refused to provide a sample, and planned to obtain discard samples had Mr. Nicholas refused. This formed the basis for the trial judge's conclusion that the evidence was otherwise discoverable.
[53] The trial judge conducted a thorough and well-reasoned s. 24(2) analysis and I see no basis for interfering with his conclusion.
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