WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. Order restricting publication of evidence taken at preliminary inquiry.—
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: February 20, 2014
Court File No.: Toronto
Between:
Her Majesty the Queen
— and —
Mahmood Ahmad, Mohamed Taha, and Russell Bullock
Before: Justice Nakatsuru
Heard on: December 11, 2013
Reasons for Judgment released on: February 20, 2014
Counsel
M. Passeri — counsel for the Crown
J. Collins — counsel for the accused Mahmood Ahmad
M. McGregor — counsel for the accused Mohamed Taha
B. Moss — counsel for the accused Russell Bullock
NAKATSURU J.:
[1] Introduction
This is a ruling pursuant to s. 540(7) of the Criminal Code. During the course of the preliminary inquiry into charges including attempted murder, the Crown sought to introduce a written report from the Royal Canadian Mounted Police (henceforth "RCMP") that a specimen forwarded by the Center of Forensic Sciences in Toronto, matched a known offender, the accused Russell Bullock, on the National DNA Data Bank.
[2] Ruling
I ruled that this report was credible or trustworthy evidence and therefore admissible. These are the reasons explaining my decision.
A. OVERVIEW AND SUMMARY OF THE FACTS
[3] The Incident
It is not necessary to elaborate at length about the evidence heard to date at this preliminary inquiry. A brief summary will suffice. On the evening of March 19, 2013, three masked men brandishing guns, burst into the complainant's apartment. The men demanded to know the location of his safe. The complainant was made to kneel at gunpoint. While one man unsuccessfully attempted to open the safe, the complainant tried to flee his home. A struggle ensued but he managed to break free. The complainant made it to the door of his immediate neighbour. As he was trying to get the occupant's attention, the complainant was hit in the rib cage with a shot gun blast. Another 9 mm round was fired through the neighbour's door. The assailants turned and fled. The complainant pulled himself through the hallway, bleeding from his wounds, seeking assistance, until finally someone opened their door to help him. He was most fortunate to survive.
[4] Flight and Arrest
After the shooting, there is evidence that a reasonable jury properly instructed could find that the suspects fled the building to a red Mazda driven by Mohamad Taha. The police were quickly summoned to the scene. The Mazda became involved in a collision with a Toronto Transit Commission bus and was later abandoned on a side street near the shooting. Items of clothing were strewn nearby as if discarded by the suspects as they fled on foot. A back pack with some ammunition was also abandoned on the sidewalk. Minutes later, Mohamad Taha was arrested by the police standing outside of the Mazda.
[5] Identification of Mahmood Ahmad
The complainant identified the man who shot him with the shotgun to be Mahmood Ahmad, the brother of a close friend of his. He could not identify the other perpetrators.
[6] Evidence Against Russell Bullock
With respect to Russell Bullock, when it comes to the issue of identity, the Crown's case against him is entirely circumstantial. A key piece of evidence is a jacket found near the Mazda resting on some bushes. The Crown theory is that one of the suspects wore this jacket during the home invasion. More specifically, the Crown alleges that it was Russell Bullock. To prove this, the Crown relies on the presence of gunshot residue and Russell Bullock's blood DNA on the jacket.
[7] Absence of Direct DNA Sample
The Crown called a forensic biologist to provide opinion evidence with respect to the DNA findings. However, this expert conducted no tests on any sample of blood provided by the accused, Russell Bullock. The simple reason for this was that no such sample from Russell Bullock was ever obtained by the police investigators. No DNA search warrant was ever requested by the police in order to obtain a sample from the accused for comparison purposes with the DNA found on the jacket.
[8] Crown's Reliance on RCMP Report
The only explanation offered by the Crown for this oversight was a misunderstanding with the defence as to what was required for the preliminary inquiry. At the end of the day, the defence was not willing to make the concession. The defence had clearly raised identity as a significant issue for this preliminary inquiry. Consequently, the Crown must prove that the DNA found on the jacket was Russell Bullock's DNA based upon properly admissible evidence. The opinion evidence of the forensic expert is wanting in that regard since all he did was rely upon the findings made by Canadian Police Services Information Centre of the RCMP in Ottawa that the sample obtained from the jacket matched that of Russell Bullock, a known offender on the National DNA Data Bank.
[9] Application Under Section 540(7)
In light of these circumstances, the Crown now seeks to have that written report by the Canadian Police Services Information Centre dated May 24, 2013, admitted at this preliminary inquiry as credible or trustworthy evidence pursuant to s. 540(7) of the Criminal Code.
B. ANALYSIS
[10] Relevant Statutory Provisions
The relevant provisions of s. 540 state:
(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.
(8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to in that subsection.
(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7).
[11] Notice Requirement — Defence Argument
First of all, the defence argues that inadequate notice was given by the Crown of his intention to tender the DNA report. I find no merit to this submission. It is true that no precise notice pursuant to s. 540(8) was given to the defence. However, an extensive written notice titled "Notices Pursuant to the Criminal Code and Canada Evidence Act" was provided to the accused. The defence was put on notice that the Crown intended to present various pieces of evidence at the preliminary inquiry. These included various experts, certificates of analysis, and documentary evidence. Relevant to the DNA report is the following notice:
Pursuant to sections 28(1) and 30(7) of the Canada Evidence Act, the prosecutor will adduce into evidence government, business and financial records and documents including but not limited to the records and documents described below:
d. Medical records, DNA Hits and related records.
[12] Notice — Substantial Compliance
In my view, while a different statute, the Canada Evidence Act, was referred to, the spirit of the notice provision in s. 540(8) was fulfilled by this specific notice. In the passage referred to above, the Crown expressly announced his intention to rely on evidence of the DNA matches in a documentary form at this preliminary inquiry, without calling a witness with firsthand knowledge of the matter. That is exactly what the Crown intends to do in this application made pursuant to s. 540(7).
[13] Purpose of Notice Requirement
In R. v. Bouffard (1988), 46 C.C.C. (3d) 116 (Ont. D.C.), Borins D.C.J. (as he then was) noted the various provisions found in the Code where notice was required before the introduction of evidence. In these cases, the notice requirement was intended to advise the opposite party of the intention to introduce such evidence and to ensure that no prejudice arose:
The common features of the above legislation are that they provide a convenient procedure for the introduction of various forms of evidence and that they require the proponent of the evidence to provide the opposite party with either "reasonable notice" or a stipulated period of notice as a condition of the admissibility of the evidence. As the authorities have suggested, the notice requirement is a form of discovery intended to advise the opposite party of the evidence and to provide it with a sufficient opportunity to consider the evidence and to determine an effective way of meeting it at trial.
[14] Application to This Case
In the case at bar, the defence was advised in a timely fashion that the Crown intended to introduce the DNA report in its documentary form. While that intention referred to a different statute, the defence suffered no prejudice from that. Put another way, to accede to the defence argument would be a triumph of form over substance.
[15] Discretion to Dispense with Notice
Lastly on this notice issue, even if the said notice did not fall within the definition of reasonable notice in s. 540(8), that section provides a discretion to the preliminary inquiry judge to dispense with the notice and to "order otherwise": see R. v. Gallant (2009), 2009 NBCA 84, 250 C.C.C. (3d) 29 (N.B.C.A) at para. 52. Given the absence of prejudice and the ability of the defence to apply to cross-examine any witness pursuant to s. 540(9), I find that a particularized s. 540(8) notice to be unnecessary in the circumstances of this case.
[16] Credibility and Trustworthiness Threshold
The second issue that must be determined is the question of whether the DNA report meets the threshold requirement under s. 540(7) as credible or trustworthy evidence. I find that the DNA report to be credible or trustworthy in the circumstances of the case for the following reasons.
[17] The Francois Test
The jurisprudence has emphasized the fact specific inquiry that needs to be conducted under this test. In Ontario, the leading authority is R. v. Francois (2005), 202 C.C.C. (3d) 147 (Ont. S.C.J.) where Ratushny J. endorsed the case-by-case approach and declined to provide a singular all-encompassing definition to the phrase. That said, she made it clear that although the evidence must have prima facie reliability before it can be admitted under s. 540(7), the threshold test is not concerned with ultimate considerations of credibility or reliability which must be left for the trier of fact at trial. Further, the evidentiary threshold is lower than the tests for admissibility at trial given the preliminary inquiry's limited screening function. It is only when the evidence is such that no reasonable trier of fact properly instructed in law could give proper effect to it would its admission be prohibited by the threshold test.
[18] Liberal Interpretation
This is a large and liberal interpretation of "credible or trustworthy". However, in my opinion, it is a correct one given that it forms a part of the 2004 amendments to the Code designed to streamline, focus, and make more efficient preliminary inquiries. It is in that context that the test must be defined.
[19] Procedural Fairness and Section 540(9)
In my view, there is nothing unfair to such a broad definition. Procedural fairness is provided to the accused under s. 540(9) by allowing the accused to apply to the preliminary inquiry judge to examine or cross-examine "any person" with respect to the information that is admitted. This is not limited to the author of the tendered statement or confined to a single witness. While hearsay statements can be admitted under s. 540(7), the reach of s. 540(9) can extend to the witness who may have direct knowledge of the matter. No exact definition of relevancy or materiality that must be shown by the applicant is found in s. 540(9). It is a broad discretion given to the preliminary inquiry judge when he or she finds it "appropriate" to require a person to give evidence: see R. v. Francois, supra, at paras. 34-35; R. v. P.M. (2007), 2007 QCCA 414, 222 C.C.C. (3d) 393 (Que. C.A.) at paras. 86-87; R. v. Rao (2012), 2012 BCCA 275, 288 C.C.C. (3d) 507 (B.C.C.A.) at para. 71. The exercise of this discretion is only limited by the purposes of the preliminary inquiry which includes a discovery function, the powers specifically given to the preliminary inquiry judge to regulate the proceedings, and the overarching Parliamentary intent to streamline the inquiry.
[20] The DNA Report and the National DNA Databank
Let me now address the DNA report. In my opinion, it is credible or trustworthy in the circumstances of this case given the legislative framework that exists for the creation and maintenance of the National DNA Databank and for the evaluation of any sample submitted to the databank for comparison purposes. The DNA Identification Act (S.C. 1998, c. 37) is the governing legislation. Pursuant to the provisions of this Act, a National DNA Databank has been created by the federal government and is maintained by the Commissioner of the RCMP. This databank consists of an index of DNA profiles obtained from bodily substances found at a crime scene and an index of DNA profiles obtained from bodily substances obtained under order from convicted offenders. The Commissioner or delegate is under a statutory duty to conduct a proper forensic DNA analysis before a profile is entered into the national databank. When a sample is submitted for comparison purposes, the Commissioner or delegate is required to compare the sample with profiles existing in the databank and if it already exists or is similar, that fact along with the information in that profile can be communicated to the law enforcement agency or laboratory.
[21] Application to Russell Bullock's Case
This is what occurred in Russell Bullock's case. His DNA profile in the databank matched the bodily substance found on a jacket discarded at the scene. The DNA report generated by the RCMP is both credible and trustworthy. It comes from an official institution charged under statute to maintain a reliable national DNA databank and to make reliable comparisons of samples submitted to it. The expert forensic biologist called by the Crown has already testified to the science of DNA analysis. While there is always the potential for human error, in the circumstances of this case, it is hard to conceive of any evidence more credible or trustworthy than this DNA report.
[22] Conclusion and Fairness
For these reasons I find this evidence to be admissible under s. 540(7). To ensure fairness to the accused, if he chooses, I will entertain any application by him pursuant to s. 540(9) to examine or cross-examine any witness with respect to the DNA report.
Released: February 20, 2014
Signed: "Justice S. Nakatsuru"