Court File and Parties
Peterborough Court File No.: CR-11-00002003-0000 Date: 2017-07-07 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Stanley James Tippett
Counsel: Mark Moorcroft, for the Crown Lydia Riva, for Stanley James Tippett
Heard: At Cobourg on February 13, 14, 2017, and March 28, 29, 2017
Before: D. Gunsolus J.
Endorsement
1In 2009, Stanley James Tippett was convicted in relation to seven offences under the Criminal Code, R.S.C., 1985, c. C-46 including, but not limited to, sexual assault, kidnapping, dangerous driving and flight from police. In that case, the complainant was 12 years of age. Following Mr. Tippett's conviction, Glass, J. declared him to be a dangerous offender concluding that a determinate sentence, coupled with long-term supervision, would not manage Mr. Tippett without risk to the public. He found that the only way to address the problems presented by Mr. Tippett was to place him on an indeterminate sentence, and he did so on October 31, 2011.
2Mr. Tippett is now charged that he, on or between January 23, 2011 and February 15, 2011, at the City of Kawartha Lakes, in the said region, unlawfully and wilfully attempted to obstruct the course of justice by attempting to persuade a witness to provide false evidence, contrary to section 139(2) of the Criminal Code. This charge relates to his 2009 conviction and related appeals.
3Jurisdiction, identity, dates and continuity of evidence were all admitted. An issue arose as to a number of paper exhibits that were relied upon at the first trial of this matter and which, apparently, were misplaced or lost and could not be produced for this trial. The Crown proceeded with and relied upon photocopies of documentation purportedly identical to that of the original lost exhibits.
Crown's Theory of The Case
4Mr. Tippett became acquainted with a fellow inmate, Morgan Thomas Gentle, at the Central East Correctional Centre where both were housed in a segregation unit. Mr. Tippett allegedly began delivering a series of letters to Mr. Gentle within which he asked Mr. Gentle to fabricate evidence to assist Mr. Tippett in appealing his prior convictions. In exchange, Mr. Tippett was going to share with Mr. Gentle damages from the civil case that Mr. Tippett promised would follow his successful appeal. This civil action would be against those who, he alleged, had wrongfully prosecuted him. Mr. Gentle said Mr. Tippett offered him $100,000 for every $1,000,000 he was awarded.
Defence Theory of The Case
5Mr. Gentle, a person with an extensive criminal record of his own, is suggested to have authored the Tippett letters to gain favour with the police and the Crown. He did so, it was argued, hoping for a lenient sentence in relation to an outstanding charge that he was then facing. Mr. Gentle's extensive criminal record dates from 2006 to 2016. Mr. Gentle is said to have befriended Mr. Tippett to gain information upon which he could base the letters he says were authored by Mr. Tippett and which are central to the current charge.
The Letters
6Copies of a series of original letters, which were filed in the first trial of this matter, were filed as exhibits, subject to the defendant's application to stay this charge given the failure of the Crown to produce the original letters. The first trial resulted in a “hung” jury.
7The letters were purportedly written by Mr. Tippett in his own handwriting and handed to Mr. Gentle. A sampling of those letters suggests the following:
a) Mr. Tippett was going to offer Mr. Gentle "a big proposition";
b) Mr. Tippett was "thinking of fabricating a story and having Mr. Gentle tell police that he was at the original scene of the crime and Mr. Tippett was not";
c) Mr. Tippett offered to pay Mr. Gentle "from my lawsuit";
d) If Mr. Gentle was interested, he would provide him with the story which he was then to rehearse and study if "he wanted in";
e) Mr. Tippett provided details to Mr. Gentle that he was to write out and include in a letter to be sent to Mr. Tippett's lawyer, who was assisting him in his appeal;
f) He wrote to Mr. Gentle suggesting that he knew that he would "get my appeal" for sure and I'll be getting millions for all the damages they've done to me. He told Mr. Gentle that he would pay him $100,000 for every $1,000,000 that he (Mr. Tippett) received. He provided details of the fabricated story that he suggested Mr. Gentle was to study and rehearse as much as possible;
g) He provided names and descriptions of people that Mr. Gentle was to refer to in the fabricated story;
h) Mr. Gentle was to tell police that they had it all wrong as Mr. Tippett was not responsible, and he asked Mr. Gentle to "Let me know if this story is all right? I'm hoping it's okay, I tried to make it sound believable as much as possible and to ensure I'm not implicating you in any criminal activity. Study and release this story if you're still in, I know that you're the best person 'cause you've got a lot of insight and information to pull this off!";
i) He provided the name of his lawyer and suggested that Mr. Gentle was to send the fabricated story by way of correspondence to his lawyer;
j) He provided an addressed stamped envelope to Mr. Gentle for that purpose;
k) He later provided the name of his appeal lawyer, together with a phone number, suggesting that Mr. Gentle should first phone the lawyer or write the letter and mail it to his trial lawyer who he told Mr. Gentle had his office in the same suite just down the hallway; and
l) He provided Mr. Gentle with a three page handwritten letter that Mr. Gentle was to send to Mr. Tippett's lawyers.
The Issue
8The question for the court to decide is whether or not Mr. Tippett authored the letters, which counsel acknowledge on their face, disclose an attempt to obstruct justice.
The Evidence
Finger Print Analysis
9Detective Constable Friessen was provided with the original handwritten letters. At the request of the investigating officer, Det. Constable Friessen processed random letters from the package to develop latent fingerprints. This occurred between May 5, 2011 and May 12, 2011. He had access to all of the original letter exhibits in this trial - he analyzed a sampling of them. While some fingerprints were identified as belonging to Mr. Tippett, it was noted that: "DC Friessen has examined the documents and determined there to be a high amount of fingerprint traffic evidence. Due to the amount of fingerprints and lack of trends, conclusions cannot be drawn as to how the various documents were handled." He also noted that a fingerprint analyst cannot comment on when a fingerprint was left on the item and that if even someone touches something, there is no guarantee that would leave a fingerprint on the item.
Morgan Thomas Gentle
10Mr. Gentle is 32 years old, grew up in Peterborough, Ontario and is currently working in Fort McMurray, Alberta. When presented with his extensive criminal record, Mr. Gentle acknowledged it and further acknowledged that he is facing an outstanding assault charge relating to allegations situate in Fort McMurray.
11Mr. Gentle met Mr. Tippett in the unit where both he and Mr. Tippett were housed at the Central East Correctional Centre.
12Mr. Gentle said that he had achieved the status of "cleaner", which granted him much freedom in the segregation unit where Mr. Tippett was also housed.
13As cleaner, Mr. Gentle had daily access to fellow inmates from approximately 6:30 a.m. to 6:30 p.m. It was he who delivered toiletries, paper, pencils and food trays at meal times to all of the inmates in the unit including Mr. Tippett.
14He suggested that other inmates treated Mr. Tippett poorly because he had been convicted of sexually assaulting a young, 12 year old. He described circumstances where they would allegedly throw cups full of urine at Mr. Tippett. He said that he persuaded the others not to do so, because he, Mr. Gentle, would then have to clean up the mess left behind.
15Mr. Gentle said that Mr. Tippett interpreted this as "sticking up for" him and thus began the series of letters. Mr. Gentle denied knowing details about Mr. Tippett's conviction and said that all of the letters which he ultimately handed over to police were authored by Mr. Tippett in his own handwriting. As a result of discussing these letters with a fellow prisoner (Shane Patterson), Mr. Gentle called police and turned over the original letters that he confirmed were authored and delivered to him by Mr. Tippett.
16Mr. Gentle denied being the author of the letters, suggesting that he did not know sufficient details about Mr. Tippett and his crimes to have done so. He denied reading newspaper accounts and denied that Mr. Tippett provided him with sufficient detail that would allow him to write the letters in question.
17He described how Mr. Tippett offered to pay him from his ultimate civil lawsuit. He confirmed the contents of each and every letter and was adamant that they were the product of Mr. Tippett, written by Mr. Tippett and handed over to him by Mr. Tippett.
18Mr. Gentle denied that the police or anyone made promises to him then or since and that he did not receive a reduced sentence in relation to charges that he himself was then facing as a result of co-operating with police by handing the letters over to them. As he said"this was all Tippett, his letters and his plan".
19During cross-examination, Mr. Gentle suggested that he always takes ownership for matters that he is charged with by way of pleading guilty. He was adamant that he did not provide the Mr. Tippett letters to police in order to avoid jail or to obtain a reduced sentence for himself.
20It is to be noted that while Mr. Gentle's criminal record is extensive, a review of this record discloses few, if any, offences of dishonesty. His evidence is not necessarily unbelievable or unreliable in the face of his record, however, it is a factor that must be considered.
21The officer whom he called to turn over the letters to was also the investigating officer in relation to Mr. Gentle's own charges for which he was convicted and for which he ultimately served time.
22Mr. Gentle insisted that he was not offered any deal and did not receive anything, including a reduced sentence, for the charges that he faced as a reward for turning over Mr. Tippett's letters. The court received no direct evidence that Mr. Gentle was rewarded in any way. It was mere speculation suggested by the defence.
Adam Grighuis
23Mr. Grighuis has been employed at the Central East Correctional Centre since 2003 as a corrections officer.
24This witness confirmed the description of the duties of a cleaner as outlined by Mr. Gentle in his evidence. He acknowledged knowing both Mr. Tippett and Mr. Gentle and agreed that he had observed them talking. He further confirmed that Mr. Gentle would have had access to Mr. Tippett a number of times over each day. He noted that the cleaner is free on the unit from about 7:00 a.m. to approximately 6:00 p.m. to 6:20 p.m. and therefore able to interact with other inmates in the unit over that time period.
25This witness never saw Mr. Tippett hand anything over to Mr. Gentle. He did acknowledge that Mr. Gentle showed him documents that he suggested were from Mr. Tippett. After Mr. Gentle's disclosure to him, he contacted his unit manager advising him of the documentation that had been shown to him, suggesting that this was critical information that should be turned over to security.
Cheryl Bird
26Ms. Bird is a security intelligence officer at Warkworth Institution. She produced 33 documents from Mr. Tippett's case management file. She described the nature of the documentation that was to be found in Mr. Tippett's case management file and confirmed that most were standard institutional forms filled out by the inmate in their own handwriting, collected by and submitted by staff. (This documentation was representative of the “known” handwriting used for comparative purposes in the handwriting analytical process).
Hugh Boyd
27Mr. Boyd is the Manager of Court Operations for Lindsay, Peterborough and Cobourg. He acknowledged responsibility for, amongst other things, court filings and the security of exhibits for the Tri-County area. He advised the court that he was told on February 3, 2017 that the original exhibits from the first trial of this matter could not be found in the documentation vault located at the Peterborough Courthouse. He immediately contacted his supervisor and personally checked the secure exhibit vaults in Peterborough, at both the Ontario Court of Justice and the Superior Court of Justice locations. He caused searches to occur in every court location where the Tippett matter has been dealt with including Newmarket, Durham, Peterborough, Lindsay and Cobourg. He also contacted the Peterborough Police, the Crown Attorney's office and the Ontario Court of Appeal to determine whether or not the documentation was in any of those locations. He contacted local trial co-ordinators and requested that they contact judicial officers that may have had contact with the file. He further had individual work areas and offices checked for the documentation and even had the basement areas of the court locations searched. He further attempted to locate the documentation by way of the ICON system in order to obtain names of any court official who may have had contact with the materials. In spite of his search, he has not been able to locate the exhibits. He did confirm that he had not found any evidence of any wilful tampering in relation to the exhibits and that the search for the exhibits remains ongoing. He said that the exhibits would have been put in the secure exhibit vault but could not provide any information as to what happened to them after they were so located. He further confirmed that he did not discover any evidence that the documentation had been wrongfully taken or destroyed.
Scott Rogers
28Officer Rogers is with the Peterborough Police Service and was the officer contacted by Mr. Gentle in relation to the Tippett letters. He acknowledged receiving the original documentation from Mr. Gentle.
29Officer Rogers repeatedly advised that he did not promise Mr. Gentle anything in relation to his co-operation with police by way of disclosing the Tippett letters. He was adamant that he did not speak to the Crown Attorney about Mr. Gentle's charges and did not promise him a break.
30Officer Rogers did confirm that he secured the original letters, as presented to him by Mr. Gentle, in the police detachment secure evidence room. He acknowledged that he himself made photocopies of the documentation and described the way in which he did so by making a copy and comparing it to the original. He said that he personally took the originals from the secure evidence room to the courthouse where the first trial was heard in Peterborough. He was present when the originals were made exhibits in the first trial.
31In cross-examination, this witness would not acknowledge that a person like Mr. Gentle might have assumed that by providing the Tippett letters, he would receive a favour in return, such as a reduced sentence. Even though he told Mr. Gentle that the Crown would be appreciative, he did not feel that this gave, or was intended to give, Mr. Gentle the impression that there might be a deal to be had in relation to the charges that Gentle was facing.
32This officer was adamant that he never spoke to the Crown about Mr. Gentle's case, never made a promise to Mr. Gentle; and never took any steps by way of meeting with the Crown in order to secure a better deal for Mr. Gentle. A review of the transcript of the Gentle-Rogers meeting would suggest that Mr. Gentle's hope for a chance to talk with the Crown directly or through Officer Rogers was never dashed. On the other hand, no actual promise was made.
Jacqueline Osmond
33Ms. Osmond is a forensic document examiner with the Centre of Forensic Sciences in Toronto. She has been employed there for 19 years and was qualified as an expert in the identification of handwriting, hand printing and signatures.
34Ms. Osmond provided the court with the results of her analysis from examinations that she made of handwriting known to be that of Mr. Tippett and the many questioned documents that are alleged to have been written by Mr. Tippett. She conducted one examination in 2012 and another in 2015.
35Of particular assistance to the court was the ability of this witness to review the numbered exhibits which are purported to be true copies of the original exhibits filed in the first trial of this matter which exhibits, of course, are now missing. Ms. Osmond took considerable time to review each and every document and was able to confirm that the lettered copies are identical to those documents presented in the original file, and which she examined. She was able to do so as each photocopy had the case number that the forensics science centre assigned to the Tippett matter, were numbered as a document, and included her initials. Even though there has not been a question raised as to the authenticity of the photocopies produced of the original exhibits, this witness was able to confirm, to this court's satisfaction that the photocopies are true copies of the original exhibits. She was also able to confirm that the copies are what she termed to be "very good photocopies" being clear and a good reproduction that provided clear strokes of the handwriting on the documentation.
36In relation to the 2012 analysis, she was able to confirm that all but three of the letters purportedly written by Mr. Tippett were "probably" written by him.
37This witness also confirmed that although original documentation is always preferred in relation to handwriting analysis, it is possible and is undertaken using photocopies. She said that the Scientific Working Group for Forensic Document Examination Standards recognized the use of photocopies for the purposes of handwriting analysis.
38This witness also confirmed that it would be very difficult for someone to simulate another's handwriting. She explained that in order to do so one must put aside their own life time learned habits and adopt another's habits in the reproduction. She confirmed that it would be extremely difficult for someone to do so unless they had a lot of time. When looking at the extensive writing (in excess of 40 pages) that was before this court, she said that it would be very difficult for anyone to simulate such extensive handwriting.
39As a result of her 2015 analysis, she was able to confirm with "practical certainty" that Mr. Tippett wrote all but three of the letters in question. She explained that practical certainty reflected the fact that in handwriting analysis one cannot conclude with absolute certainty as to the identity of someone's handwriting as that would require a comparison of everyone's handwriting in the world. She did confirm that practical certainty is the highest form of identification that a handwriting analyst can assign.
40This witness was shown Exhibits F, K, L, J, G, P, P1, H, B, N, E, M, C and Q. She indicated that because there were significant similarities in letter form, baselines and proportion and no fundamental differences between the handwriting known to have been undertaken by Mr. Tippett and these exhibits and no signs of simulation, Mr. Tippett was identified by her with practical certainty as the author of the documents in question. In relation to Exhibits A and O, she was unable to identify Mr. Tippett or eliminate Mr. Tippett as the author, because these documents were in cursive writing and she had no sample of Mr. Tippett's known cursive writing with which to compare it.
41In cross-examination, this witness was able to confirm that the documentation that she examined did not show the trademarks of having been simulated by someone else, such as tremors caused by starting and stopping, reversion to one's own handwriting habits and so on. As she put it, they are "naturally written". She confirmed that with such copious amounts of handwriting, it is much harder to maintain simulation. She said it would take an enormous amount of time and skill. This witness did acknowledge the limitations that one must place on handwriting analysis when only copies of originals are used. She acknowledged that if one handwriting analyst had been provided originals and she had been provided only copies that she would feel disadvantaged but not prejudiced.
42I accept her opinion that in all probability, the impugned documentation was written by Stanley Tippett.
Leia Huggins
43Ms. Huggins is an independent contractor who has worked as a forensic document examiner for less than two years. She was permitted to give evidence as a forensic document examiner, although the court noted her limited experience.
44This witness agreed, in relation to most of the impugned letters, that Mr. Tippett "probably wrote" said documentation. She opined that she would have been able to give a more certain conclusion had she not been limited in that she was only provided with electronic copies of the original documentation. This witness also agreed that simulation of another's writing is difficult but not impossible. She acknowledged in cross-examination that it is very rare for someone to be able to falsify another's handwriting. She also gave this opinion in Lesniak v. Tomaszewska, 2016 ON SCSM 67918 and in which she acknowledged that handwriting analysis is not a perfect science. She also agreed that the documentation appeared to have been "fluently written" but refused to give an opinion as to whether said document was written by another person imitating Mr. Tippett's handwriting. She also acknowledged that imitating handwriting would be difficult in this case with such a volume of handwriting but maintained that it would not be impossible.
45Ms. Higgins suggested that without having original documentation, she was prejudiced, in her analysis. She did acknowledge, however, that the use of photocopies is acceptable in handwriting analysis.
46I am satisfied that Ms. Higgins evidence, to summarize it, acknowledged that Mr. Tippett probably wrote the letters in question notwithstanding the above limitation. I accept her opinion that Mr. Tippett, in all probability, wrote the impugned documentation.
Discussion
47Counsel for Mr. Tippett has urged that I approach Mr. Gentle's evidence on the basis that he was an in-custody informer. Counsel presented me with the recommendations from the Moran Inquiry (Kaufman Commission) and specifically referred me to the definition of "in-custody informer". That definition defines such an informer as someone who:
(a) allegedly received one or more statements from the accused,
(b) while both were in custody, and
(c) where the statements relate to offences that occurred outside of the custodial institution.
48The Crown Attorney pointed out that excluded from this definition are informers who allegedly have direct knowledge of the offence independent of the alleged statements of the accused (even if a portion of their evidence includes a statement made by the accused).
49While I agree with counsel for the defence that Morgan Gentle had a motive to co-operate with police, there is no evidence to suggest that Mr. Gentle fabricated evidence. Rather, he took the opportunity to produce letters that were handed to him by Mr. Tippett in the hope of buying himself favour in relation to sentencing for charges that he was then facing. No evidence was presented suggesting that Mr. Gentle had to be induced to turn over the primary evidence. I did not receive any evidence that Mr. Gentle was promised nor given a more favourable sentence as a result of the provision of the impugned letters to police. Mr. Gentle acknowledged that there were discussions in relation to his ultimate sentencing that ranged between 2 - 5 years. However, there was no evidence presented to suggest that, as a result of the production of the impugned letters, he received a more favourable sentence. At best, the court was presented with conjecture. The investigating officer, Officer Rogers, testified he never spoke to the Crown Attorney to obtain a favourable outcome for Mr. Gentle. I have already noted that he never made an actual promise to Mr. Gentle, however, his words clearly could have been interpreted as one.
50I would agree with the Crown that Mr. Gentle does not meet the criteria of an in-custody informer as his evidence reflected a direct knowledge of the alleged offence independent of any statement made by the accused, Mr. Tippett. Mr. Gentle was provided a series of letters which he eventually turned over to police. While his evidence did reflect statements given to him by Mr. Tippett, the bulk of his evidence was in relation to identifying the letters, written by Mr. Tippett. It is further to be noted that the offence that we are dealing with is one of obstructing justice, and indeed, Mr. Gentle provided evidence of his direct knowledge of the offence independent of statements alleged to have been made by Mr. Tippett.
51Out of an abundance of caution, I approach Mr. Gentle's evidence with Vetrovec v. R. in mind knowing that there is always a danger in relying on the unsupported evidence of unsavoury witnesses, and in particular, someone who might to some degree at least, meet the definition of a "jail house informer".
52While Mr. Gentle does not meet the technical definition of a jail house informant, we do have the corroborating evidence of both handwriting analysts. It is also to be noted that the letters are in no way inculpatory, and indeed, were written and designed to be exculpatory to assist Mr. Tippett in appealing his original convictions.
53I also note that while this witness has a substantial criminal record, the record consists primarily of alcohol related offences involving assaults, domestic assaults and breaches of probation. Nowhere is there to be found crimes of dishonesty. Mr. Gentle also confirmed that in response to each and every one of his charges, he has pled guilty. As he has put it, he accepted responsibility for his actions. Again, his evidence is not necessarily unbelievable or unreliable in the face of his criminal record, however, it is a factor that I have seriously considered.
54It is also to be noted that the initial letters received by Mr. Gentle from Mr. Tippett were thanking Mr. Gentle for "sticking up for him" in relation to mistreatment by other inmates. As the Crown queried, why would Mr. Gentle create and author such introductory letters if his goal was to frame Mr. Tippett with a criminal act? One is also left with the question as to why Mr. Gentle would write some 15 letters when one or two would, as Mr. Moorcroft argued, have accomplished defence counsel's theory of fabrication in order to buy favour. While the onus of course remains solely upon the Crown, this does undermine the defence theory.
55Mr. Gentle denied being the author of the letters and pointed out that he did not possess sufficient details about Mr. Tippett and his crimes to have created such detailed letters. He also denied reading newspaper accounts and denied that Mr. Tippett provided him orally with sufficient detail. He was adamant that these letters were the product of Mr. Tippett, written by Mr. Tippett and handed over to him by Mr. Tippett. There is no evidence that would cause me to doubt Mr. Gentle's evidence in this regard. As he said, this was all Tippett, his letters and his plan. Indeed it involves much of Mr. Tippett's life story that only he could know.
56There is incredible overlapping detail in relation to the evidence presented in the original 2009 trial and the detail set out in the impugned letters. Crown counsel took us, painstakingly, through a comparison of the evidence presented in the 2009 trial before Glass J. Such a review discloses extreme, minute detail that only Mr. Tippett could possibly know. There was a publication ban in place in relation to the evidence in that trial. I do not intend to review that evidence in detail, however, there were details relating to time, location, brands of alcohol consumed, dates, street names, individuals names, relationships, Mr. Tippett's family status and his "double life" involving a fiancée and so on. To suggest that Mr. Gentle was able to recall all of this minute detail and reproduce it in such detail in extensive correspondence, defies common sense and logic. The letters also disclosed details about neighbours of Mr. Tippett, the colour and make of vehicles that they drove; related to an individual walking by with his dog who was told to "mind your own business" resulting in the individual walking away and calling his dog. In his evidence before Glass J, Mr. Tippett attributed many statements to individuals only he knew. Only Mr. Tippett could possibly have referenced these statements in the impugned letters in such, almost, microscopic detail.
57This witness also assisted this court with confirmation that the photocopies of the original lost letter exhibits are true and accurate copies. He was asked to review and read each and every letter, and he confirmed the copies to be accurate copies of the original letters given to him by Mr. Tippett.
58There is evidence to corroborate Mr. Gentle's evidence. Both the Crown and defence called witnesses with experience in handwriting and document analysis. Both witnesses confirmed that at the very least, Mr. Tippett probably wrote the letters in question. As a result of being provided original documentation, the Crown's handwriting analyst was able to confirm with practical certainty that Mr. Tippett wrote the letters in question. What is remarkable is that both the Crown and defence witnesses confirmed that it would be indeed rare for someone to be able to simulate the handwriting of Mr. Tippett, especially in circumstances where the letters are so extensive. Evidence was also provided that fingerprints belonging to that of Mr. Tippett were found on at least some of the letters. Such analysis cannot confirm when such fingerprints might have been left on an item. In this case, because of the high amount of fingerprint traffic evidence found on the letters examined, the most Det. Constable Friessen was able to confirm was that, at some point in time, Mr. Tippett had touched the paper upon which the letters were written.
59Ms. Osmond's opinion in relation to the impugned letters was of particular assistance to the court. Though the defence has not questioned the authenticity of the photocopies of the original exhibits, she was able to confirm that the photocopies presented in this trial were true copies of the original exhibits filed in the first trial. She was able to do so as the photocopies included the Centre of Forensic Sciences case number, document number and her initials. Ms. Osmond took considerable time, while giving evidence, to review each and every document in order to confirm this information. This witness also able to satisfy the court that the photocopies are true copies of the original exhibits. In the 2012 analysis, Ms. Osmond was able to confirm that all but three of the letters purportedly written by Mr. Tippett were probably written by him. In her 2015 analysis, because she was provided with originals for comparative purposes, she was able to confirm with "practical certainty" that Mr. Tippett wrote all but three of the letters in question.
60She was able to come to these conclusions because of the significant similarities in letter form, baseline and proportion and the fact that there were no fundamental differences between the handwriting known to have been undertaken by Mr. Tippett and the questioned letters. She was also able to dismiss the possibility of "simulation" as the letters were "naturally written" and did not have the indicia of simulated writing such as tremors caused by starting and stopping or reversion to one's own handwriting habits. She confirmed that with such copious amounts of handwriting, it would be very difficult for someone to maintain such a simulation. She said that for someone to have created such documentation would take an enormous amount of time and skill. This witness was also able to confirm that although original documentation is always preferred in handwriting analysis, it is also possible and acceptable using photocopies. I accept her evidence that while the defence expert was limited to examining photocopies, if she were in the same position while she would feel disadvantaged it would not, in her mind at least, amount to a level of prejudice such that she would be unable to provide an opinion based upon an analysis of photocopies. She said that many of the photocopies were of high quality to the degree that she was able to detect indicia to discount simulation. She did acknowledge that she did have the advantage of seeing the original documentation that the defence analyst did not.
61Ms. Huggins was only able to provide a limited opinion on behalf of the defence as she had photocopies as opposed to original documentation to review. However, she also came to the conclusion that Mr. Tippett probably wrote the letters in question. She also confirmed that indeed it would be the rare case where someone would be able to simulate the letters in question given the copious amount of writing. She maintained, however, that it would not be impossible. Ms. Huggins explained that without originals, she was unable to perform a microscopic analysis and thus the limited opinion.
62The court heard evidence from Mr. Gentle, as confirmed by correctional officer Adam Grighuis that Mr. Gentle had achieved the status of "cleaner" for the unit in which Mr. Gentle and Mr. Tippett and others were housed at the Central East Correctional Centre. This meant that Mr. Gentle was out of his cell from approximately 6:00 a.m. to 6:00 p.m. each and every day. Given the evidence of both handwriting analysts that simulation of another's handwriting in relation to the voluminous extent of the letters written in this matter, Mr. Gentle would not have had the requisite time or opportunity to produce such documentation.
63The court heard that an individual would have to have taken many short periods of time, over a long period of time, to replicate the handwriting and the court heard no evidence of Mr. Gentle undertaking such a task. It defies common sense and logic to suggest that Mr. Gentle could have produced this copious and minutely detailed documentation. As suggested by the Crown, there is no “air of reality” to the suggestion that Mr. Gentle had the ability to write these letters with such extensive detail that was almost identical to the evidence disclosed at the 2009 trial.
64During Mr. Gentle's testimony, he was extremely talkative and acknowledged that he had attention deficit disorder. He did not present as an individual who could recall such minute detail in order to produce the letters in question. He did not present as someone who would have the inclination, ability and patience to undertake the task which both handwriting analysts acknowledged would take great skill, time and would be an accomplishment that is very "rare".
65Handwriting in relation to a disputed document may be proven by a direct comparison with a document that is known to have been written by the person in question. This type of opinion is now expressly permitted by the Canada Evidence Act, R.S.C., 1985, c. C-5, s. 8. A lay witness or an expert witness may provide an opinion as to the genuineness or otherwise of such handwriting by comparing a known sample of the person's handwriting with the disputed writing. The court is also entitled to compare the disputed handwriting with admitted or proved handwriting and act upon its own judgment. Having had the opportunity to undertake my own review of the evidence reviewed by the expert analysts, I agree with their views that Mr. Tippett probably authored the impugned letters: see R. v. Abdi; Thompson v. Thompson (1902, 4 O.L.R. 442 (D.C.); the Honourable Mr. Justice Alan W. Bryant, The Honourable Mr. Justice Sidney N. Lederman & The Honourable Madam Justice Michelle K. Fuerst, The Law of Evidence, 4th ed (Markham: LexisNexis Canada Inc., 2014), at 12.29 - 12.30.
66Handwriting analysis of the impugned documentation is but one piece of evidence. When one considers the demeanour of Mr. Gentle, the minute detail and content of the letters in question, his own acknowledged intellectual limitations, and given the evidence of Ms. Osmond and Ms. Huggins evidence that replication of handwriting is extremely difficult and rare, while no doubt Mr. Gentle had a motive to produce the letters in order to buy himself favour, there is no evidence to suggest that he fabricated the evidence.
67I am satisfied, beyond a reasonable doubt, that the accused wrote the letters in question. Based upon the concessions of defence counsel, such letters amount to an attempt to obstruct justice. Having made this finding, I turn now to the stay application brought by the defence.
Application for Stay
68Mr. Tippett has brought an application for an order granting a stay of these proceedings, or in the alternative, the exclusion of evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms stemming from an alleged violation of the applicant's ss. 7 and 11(d) Charter rights to make full answer and defence.
69The primary grounds argued by the applicant are as follows:
- His right to a fair trial has been violated by the loss of exhibits from his first trial.
- The Crown did not meet its burden to negate unacceptable negligence stemming from the lost exhibits.
- He is prejudiced from the loss of the original exhibits because his forensic document analyst Ms. Huggins, was at an unfair disadvantage when examining the impugned letters.
70There is no issue that the original letters are highly relevant and central to the Crown’s case. This lost evidence, and its potential significance to the defence, has to be assessed in the context of the evidence that was available to the defence.
71The basic principles of the law respecting the impact of lost evidence and when a stay should be granted were summarized in R. v. Bero, at para. 30:
- The Crown has an obligation to disclose all relevant information in its possession.
- The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.
- There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
- If the explanation establishes that the evidence has not been destroyed or lost, owing to unacceptable negligence, the duty to disclose has not been breached.
- In its determination of whether there is a satisfactory explanation by the Crown, the court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care should be taken to preserve it.
- If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused s. 7 Charter rights.
- In addition to a breach because of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, as for example, where evidence is deliberately destroyed for the purpose of defeating the disclosure obligation.
- In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy only if it is one of those rare cases that meets the criteria set out in O'Connor.
- Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.
- In order to assess the degree of prejudice resulting from the loss of evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.
1. Was the explanation of the Crown as presented through Officer Scott Rogers and Mr. Boyd satisfactory?
72Officer Rogers testified that when he obtained the original documentation he returned to his police detachment. There he photocopied each of the originals. He demonstrated how he made a copy and compared it to the original in order to ensure that he had a full set of photocopies of the original documentation. He then secured the originals in the secure evidence room of the Peterborough Police Service. He advised the court that he personally delivered the originals to the first trial and was present as they were introduced as original exhibits.
73All of the original evidence was disclosed to the defence and these originals were available to the defence to examine, cross-examine on and for that matter have a handwriting analysis performed upon. The accused was not put in the position where the original evidence was never disclosed to him.
74No explanation was provided as to why the original documents were not analyzed by an expert for the defence for the purposes of the first trial. As in R. v. Dixon, at para. 55"[T]o do nothing [is]...a lack of due diligence". A request to have photocopies analyzed was not made until midway through this trial. That request was granted and proceedings were adjourned to accommodate the process.
75In his evidence, Mr. Boyd confirmed that subsequent to the first trial, the original exhibits were placed in the limited access secure exhibit vault located at the Superior Court of Justice, 470 Water Street, Peterborough, Ontario.
76Mr. Boyd has been employed by Government Services in excess of 30 years and noted that this was the first time that he had ever heard of exhibits going missing in this fashion. His evidence suggested that all reasonable steps were taken to preserve the original exhibits and the court heard no evidence to suggest otherwise. As in R. v. La, despite the Crown's best efforts to preserve evidence, owing to "frailties of human nature", evidence will occasionally be lost. I am satisfied that in this case the police, Crown and court administration took reasonable steps to preserve the evidence.
77In the result, this is not an abuse of process or an unacceptable negligence case. As in R. v. Labuckas, this inadvertent loss of evidence does not equate to unacceptable negligence.
2. Given the satisfactory explanation provided by the Crown, has the accused's right to make full answer and defence been prejudiced by the loss of the original exhibits?
78At this stage of the inquiry, the onus is on the defendant to establish actual prejudice: R. v J.G.B.; R. v. O'Connor.
79The original documentation was disclosed to and available to the defence at the first trial of this matter. The photocopies presented in this trial, have been confirmed by more than one source to be true copies of the originals and that has not been challenged by the defence in any way.
80Such photocopies amount to "other evidence" available to the defence in order to challenge the credibility of Crown witnesses. As the Crown noted, whether these letters were the originals or photocopies, the defence was able to cross-examine Mr. Gentle on this documentation in the same way: [R. v. Xie, 2006 CarswellOnt 8674 (S.C.)], at paras. 24, 27. Indeed, these photocopies are the "other sources" of information as contemplated in La. Where the absence of an original document is explained and authenticated copies are produced, the copies may be admitted into evidence: R. v. Betterest Vinyl Manufacturing Ltd. (1989), 42 B.C.L.R. (2d) 198. In fact, photocopies are admissible in evidence when relevant and the originals have been lost: R. v. Wayte, (1982) 76 Cr. App. R. 110 CA.
81The rule that a party must produce the best evidence that the nature of the case allows and any less good evidence should be excluded, no longer prevails. All relevant, reliable evidence, not merely the best evidence, is admissible: Kajala v. Noble, (1982), 75 Cr. App. R. 149 (C.A.).
82Provided a witness is called to verify that the copy produced is (a) a true copy of the original; and (b) in the same terms as the original, such evidence is admissible: R. v. Collins, (1960) 44 Cr. App. R. 170 (C.A.).
83The real issue before the court is whether or not the unavailability of the original exhibits for review by the defence document analyst amounts to a degree of prejudice such that the defence was unable to make full answer and defence. The court received no evidence to suggest that an analysis cannot be successfully undertaken by the use of photocopies. Indeed, based upon photocopies, both the Crown's expert and the defence analyst were able to confirm the author of the impugned documentation to probably be Mr. Tippett. The defence was able to, and did rely on such photocopies, notwithstanding having to give a limited opinion because the original documentation was no longer available.
84"Actual prejudice" mean an accused is unable to put forward a defence, and not simply that a loss of evidence has made it more difficult to advance that defence: J.G.B., at para. 8.
85The defence suggests the lost evidence prevented Ms. Huggins from fully analyzing whether the documents were forged. As there was no evidence of any nature whatsoever presented of simulation, this cannot amount to justification to stay these proceedings. Stay is a drastic remedy which is only to be exercised in the clearest and rarest of cases, as otherwise it would undermine society's sense of decency and fair play along with society's interest in having criminal trials determined on merits. Here the accused had all the information and disclosure including an ability to review and have analyzed the original documentation. The copies provided were proven to be true copies of the originals and were available for analysis. The evidence as presented by the defence document examiner suggested that they were unable to confirm that the remote possibility of simulation had not occurred. However, I find that to be nothing more than speculation which is not a foundation for granting a stay. (and is only to be considered at the remedy stage of a section 24(1) Charter analysis, in any event): R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; R. v. Crane, 2013 NLCA 44, 338 Nfld. & P.E.I.R. 344, at para. 24. Indeed, for the defence to establish an infringement of the right to make full answer and defence, an accused must show that there was a reasonable possibility that the failure affected the outcome of the overall fairness of the trial process: R. v. Carosella; La: Bero.
86Here there can be no irreparable prejudice given the fact that there was an alternate source of information in the form of exact photocopies of the original exhibits from the first trial. Evidence provided by the handwriting analysis is not determinative of this case but is corroborating evidence. Given the fact that this alternate evidence was available and was examined by analysts for both the Crown and the defence, a stay would be inappropriate: R. v. Hadjor; R. v. Persichetti, 2004 ONCJ 139, 2004 CarswellOnt 3306; J.G.B. The law does not guarantee perfect justice but rather an accused is to be provided a fundamentally fair trial. While the loss of original documentation may make it more difficult to put forward full answer and defence, actual prejudice occurs only when an accused is unable to put forward his defence. In determining whether actual prejudice has occurred, the court must consider the other evidence that does exist and whether or not such evidence contains essentially the same evidence as the lost evidence. Mr. Tippett had available to him the original documentation for the purposes of the first trial. It was available to be cross-examined on and could have been analyzed by an expert on behalf of the defence for the purposes of the first trial. In addition, we have true, unadulterated photocopies of good quality upon which the Crown's case could be challenged by way of cross-examination. The defence was able to obtain, albeit a limited opinion, by a document analyst. There also exists the evidence from the 2009 trial before Glass J. which could be compared, and was compared, during this trial to the contents of the impugned letters. The court must consider the lost evidence in the context of the rest of the evidence that is available in order to ascertain whether or not there is actual prejudice to the defence. I find no actual prejudice.
87The task of the defence for Mr. Tippett may have been made more difficult because of the missing original documentation, however, there was clearly other evidence available to the defence such that Mr. Tippett's trial could not be rendered fundamentally unfair. As recognized by McMann J. in Xie at para. 23, the impact of lost evidence on trial fairness and prejudice to the accused must not be considered in a vacuum but rather in the context of other evidence that is available to the defence to challenge the credibility of the Crown's case.
88In this case, the Respondent had the benefit of the following:
(1) True, good quality photocopies of the original documentation. (2) This evidence was available in cross-examination in order to challenge the credibility of the Crown witnesses. (3) The evidence was available to be, and was, examined by the defence document analyst. (4) The defence was entitled to and did cross-examine Mr. Gentle who presented the copied letters to the court. (5) The defence was able to and did cross-examine the Crown handwriting analyst by using the photocopies. (6) The trial transcript from the 2009 trial was also available to challenge the content of the documentation in question.
89As in J.G.B., actual prejudice does not occur with the loss of evidence if the loss only makes it more difficult for the accused to put forward his position. Actual prejudice is deemed to occur only when an accused is unable to put forward their defence due to the lost evidence and not simply that the lost evidence made putting forward their position difficult.
90As in J.G.B., the administration of justice is better served by permitting the prosecution to continue in these circumstances rather than by staying the proceedings and thereby effectively acquitting Mr. Tippett. This is not one of those "clearest of cases" which would result in overriding society's interest in having criminal charges determined on merits.
91I agree with Mr. Moorcroft arguing on behalf of the Crown that to stay these charges in these circumstances would bring the administration of justice into disrepute. The defence has not shown it suffered actual prejudice. It must be remembered that the defence application for stay is based upon the fact that original documentation was not available to be examined by its document analyst. After a careful analysis and comparison of the evidence from the 2009 Tippett trial and the impugned letters, one is only able to come to the conclusion, even without the benefit of handwriting analysis, that these letters could not have been authored by anyone other than Mr. Tippett. Only Mr. Tippett could possibly have known the minute detail that is encompassed within the impugned letters. Consideration of a request to grant a stay, is very fact specific. The facts of this case do not warrant a stay.
92The request for a stay is denied.
Summary
99For me to find Mr. Tippett guilty of attempting to obstruct justice, the onus was upon the Crown to prove each of these essential elements beyond a reasonable doubt:
(i) that Mr. Tippett wrote the letters; (ii) that Mr. Tippett's conduct had a tendency to obstruct, pervert or defeat the course of justice; and (iii) that Mr. Tippett intended by such conduct to obstruct, pervert or defeat the course of justice.
100As outlined above, I am satisfied beyond a reasonable doubt that Mr. Tippett authored the questioned letters that were presented in this trial. Given that defence counsel acknowledged that on their face, such letters disclose an attempt to obstruct justice, there shall be a finding that Mr. Tippett did wilfully attempt to obstruct justice by attempting to persuade a witness to provide false evidence, contrary to the provisions of s. 139(2) of the Criminal Code.
101Mr. Tippett's request for a stay is denied.
Justice D. Gunsolus Released: July 7, 2017