Police successfully retrieved abandoned DNA sample left on cup by accused. Accused was arrested and charged with several sexual offences. At trial, accused unsuccessfully brought motion to exclude DNA evidence. Trial judge held the accused’s rights under s. 7 and s. 8 of the Canadian Charter of rights and Freedoms had not been violated. Convicted as charged, accused appealed from his convictions. Majority of Court of Appeal dismissed the appeal, holding that trial judge did not err in concluding that the DNA sample was not obtained in violation of accused’s privacy right. Third judge held that violation of accused’s section 8 rights did occur. However, he concluded that exclusion of evidence would be more likely to bring administration of justice into disrepute than its admission and agreed that appeal should be dismissed. Accused filed a notice of appeal and Crown brought motion to quash notice. Motion granted. Person who is convicted of indictable offence and whose conviction is affirmed by court of appeal may appeal to Supreme Court of Canada on any question of law on which judge of court of appeal dissents. In this case, third judge’s disagreement did not go to result and was better characterized as concurring opinion or opinion concurring in result. Therefore, accused should be entitled to serve and file application for leave to appeal.
R. v. D'Amico (2019), 2019 CarswellQue 2597, 2019 CarswellQue 2598, 2019 SCC 23, 2019 CSC 23, Richard Wagner C.J.C., Rosalie Silberman J., Michael J. Moldaver J., Andromache Karakatsanis J., Clément Gascon J., Suzanne Côté J., Russell Brown J., Malcolm Rowe J., and Sheilah Martin J. (S.C.C.).