COURT OF APPEAL FOR ONTARIO

CITATION: Chaudhary v. Ontario (Attorney General), 2013 ONCA 615

DATE: 20131011

DOCKET: C56130

Laskin, Goudge and Feldman JJ.A.

BETWEEN

Amina Chaudhary

Appellant

and

Attorney General of Ontario

Respondent

Alan Young, for the appellant

Robert E. Charney and Frank Au, for the respondent

Heard: September 18, 2013

On appeal from the judgment of Justice M. Dambrot of the Superior Court of Justice, dated September 18, 2012.

By the Court:

[1] The appellant was convicted of first degree murder in 1984. Her appeal to this court was dismissed on August 5, 1986 and leave to appeal to the Supreme Court of Canada was denied on December 7, 1987.

[2] The appellant retained The Innocence Project in 1997. The Project has brought an application to the Minister under s. 696.1 of the Criminal Code for a ministerial review of her conviction on the ground of miscarriage of justice.

[3] On April 19, 2010, the Project commenced an application seeking a broad declaration, which was ultimately framed by Dambrot J. as follows at para 1 :

…it is a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms that upon conviction for an indictable offence punishable by life imprisonment all evidence pertaining to the case that should have been disclosed under R v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, including any evidence and/or information in police investigative file [sic] that would be subject to disclosure under Stinchcombe, be preserved for the lifetime of the offender unless:

i. The offender waives this requirement, or

ii. A Court Order is obtained, upon notice to the accused, allowing for the destruction or other disposition of any or all of the evidence.

[4] The appellant’s submissions relating to evidence preservation were grounded in specific concerns about lost photographs that could have potential relevance for the s.696.1 application. At trial, Dr. Charles Smith, the pathologist who conducted the autopsy on the victim, referred in his testimony to photographs of bruises on the victim’s body. Those photographs were not made exhibits, however, and now they cannot be found. No other evidence from the police file or elsewhere is referred to in the application record before the court.

[5] In his reasons for decision, Dambrot J. explained that a Charter remedy under s. 24(1) could only be ordered if a Charter right of the appellant had been infringed or denied. He then went on to determine whether the inability of the Crown to locate the autopsy photographs infringed the appellant’s s. 7 Charter rights. He concluded at para. 81 of his reasons:

In my view, whatever obligation to preserve evidence survives the exhaustion of appellate remedies, there is no violation of the Charter where the loss or destruction is satisfactorily explained, and no prejudice is occasioned to the appellant.

[6] Dambrot J. noted that as no one on behalf of the appellant had asked to see photographs at all since the trial, it was not surprising that they were now unaccounted for. He observed that by today’s standards, such a loss or destruction of evidence would be unacceptable, but that today’s standards could not be imposed on past events and behaviour. He also concluded that the appellant had not demonstrated any prejudice by the loss of the photos, because on the evidence produced on the application, the photos would not be able to assist the appellant to prove her innocence. As a result, having found no Charter breach based on the loss or destruction of the autopsy photos, Dambrot J. concluded that no remedy under s. 24(1) could be ordered.

[7] In his oral argument in this court, counsel for the appellant accepted the finding of Dambrot J. that his client had not suffered a Charter breach based on the loss of the photographs. His position is that because he seeks a declaration of a general duty on the Crown to preserve evidence post-trial and appeal, rather than any case-specific remedy, he does not need to rely on and therefore does not need to prove a specific Charter breach.

[8] He acknowledged, however, that as a basis for seeking a declaration, he did need to demonstrate that there is an evidence file in this case that must be preserved for use in the s. 696.1 application and that there is a risk the file will be lost in the future. To that end, counsel referred to hair, soil and fabric evidence that was relied on at trial as part of the evidence against the appellant, which could now be tested with modern methods to try to establish the appellant’s innocence.

[9] Without commenting on the procedural submissions set out above, a preliminary problem with the appellant’s position is that neither the notice of application nor the reasons of Dambrot J. refer in any way to any evidence other than the autopsy photographs. To the extent that there is any correspondence in the record that deals with the balance of the evidence from the investigation and the trial, the response from the Crown is that they have two boxes. There is no suggestion that that evidence will not be preserved for this ongoing matter.

[10] Because the appellant does not challenge the findings made by Dambrot J. but now seeks the declaratory remedy on a basis that is not set out in the record and was not the subject of adjudication by Dambrot J., there is no basis for the court to entertain an appeal.

[11] Before concluding his reasons, Dambrot J. made some thoughtful, obiter observations about the issue of post–appeal preservation of evidence, which we endorse as well. He stated at paras 87-88:

Unlike preservation of Stinchcombe material before trial, preservation after appellate rights are exhausted does not give rise to a legal principle that can be identified with sufficient precision to yield a simple a [sic] standard. It would be preferable for there to be a carefully developed legislated scheme, which could then be reviewed by the Courts for Charter compliance

But if there is an obligation on the Crown arising from the Charter to preserve Stinchcombe material after appellate rights have been exhausted, and if the task of developing the response to this issue must fall to the Courts, the response should be developed in a nuanced and incremental manner. Unlike preservation of relevant material before trial, it requires consideration of the differing types of material covered by Stinchcombe, what subsequent use there may be for such material, questions of dangerousness and perishability, and questions of feasibility and cost. In any event, the narrow circumstances of this case do not present the occasion to examine these difficult questions.

[12] The appeal is dismissed. Costs were not requested and no costs are ordered.

Released: “JIL” October 11, 2013

“J.I. Laskin J.A.”

“S.T. Goudge J.A.”

“K.Feldman J.A.”