COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ivezic, 2020 ONCA 621

DATE: 20201005

DOCKET: M51639 (C66244)

Brown, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Responding Party

(Respondent)

and

Mladen ("Michael") Ivezic

Applicant

(Appellant)

Richard Litkowski and Jessica Zita, for the applicant

Karen Papadopoulos and Frank Au, for the responding party

Heard: September 16, 2020 by video conference

REASONS FOR DECISION

I. OVERVIEW

[1] On June 3, 2018, the applicant, Mladen (Michael) Ivezic, was convicted of first-degree murder. He is appealing his conviction.

[2] A key issue at trial was whether DNA found in a sample taken from under the deceased's fingernails was that of the applicant. The applicant contended that it was not. In the course of extensive arguments on pre-trial and trial motions, the applicant asserted that during the analysis process the authorities planted his DNA and altered DNA records to show a match between the DNA found in the sample taken from under the deceased's fingernail and that of the applicant.

[3] To support this theory, the applicant brought third-party records applications that sought, in part, information about the handling of the DNA sample from the Centre for Forensic Sciences ("CFS") and the National DNA Data Bank ("NDDB"). Amicus helped the applicant to prepare his third-party records applications.

[4] In the third-party records application directed to the NDDB, the applicant sought the production of the original DNA profile data for item 11T3843_6-1MAJ received by the NDDB on May 9, 2011 (the "Item"), which was the sample taken from under the deceased's fingernails. Significant amounts of pre-trial time were devoted to hearing the applicant's third-party records applications. The NDDB was ordered to produce the information about the Item in its possession, which it did.

[5] On his appeal, the applicant maintains that the production made by the NDDB was inadequate. He describes the information that has not been produced variously as "the original DNA profile data" or the "original DNA allele data" for the Item. He steadfastly maintains that the DNA analysis data uploaded to the NDDB on May 9, 2011 was not a match for his DNA and that the uploaded information was subsequently altered to match his DNA.

[6] In furtherance of that position, the applicant moves under Criminal Code s. 683(1)(b)(ii) for an Order directing that Detective Bui, Detective Beveridge (the primary investigating officers) and Kimberly Sharpe (a CFS forensic scientist) attend for cross-examination in support of an application to produce relevant evidence not previously disclosed. More specifically, the applicant contends that the original DNA profile for the Item that was uploaded on May 9, 2011 was never produced during the trial proceedings. He seeks to question the two investigating detectives about their involvement in and knowledge of the early stages of the investigation, and to question the CFS scientist about her involvement with the DNA samples taken from the deceased. If the examinations reveal that the NDDB can provide the original DNA data, then the applicant plans to ask the Court to order its production and grant leave to introduce the produced information as fresh evidence on his appeal.

[7] Detectives Bui and Beveridge did not testify at trial; the applicant did not compel their attendance. Ms. Sharpe did testify and was cross-examined by the applicant for six days.

II. THE GOVERNING PRINCIPLES

[8] The Crown's disclosure obligation on an appeal extends to any information in the possession of the Crown that there is a reasonable possibility may assist the accused in the prosecution of his appeal: R. v. Trotta (2004), 2004 CanLII 60014 (ON CA), 23 C.R. (6th) 261 (Ont. C.A.), at para. 25. In Trotta, this court described, at para. 25, the two links an applicant must establish to obtain disclosure or production in aid of a proposed fresh evidence motion:

(i) the applicant must first demonstrate a connection between the request for production and the fresh evidence he proposes to adduce by showing that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence, either by yielding material that will be admissible as fresh evidence or assisting the applicant in developing or obtaining material that will be admissible as fresh evidence; and

(ii) the applicant must next demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.

Unless the applicant can establish both links, there is no reasonable possibility that the material sought could assist in the prosecution of the appeal and, therefore, no reason for this court to require the Crown to disclose it: Trotta, at para. 25.

[9] To these principles must be added the observations of Sopinka J. in R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, about the circumstance where the Crown denies the existence of material that the defence contends is relevant. In such a case, Sopinka J. stated that "the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant": at p. 743. To establish a basis, the defence may lead or point to evidence or, in some cases, rely on the oral submissions of counsel: at p. 744.

III. ANALYSIS

[10] Consideration of the application must start with an examination of the record to understand what information about the Item the NDDB has already produced.

The NDDB production to date

[11] In 2011, the CFS conducted two tests of the Item. A May 6, 2011 report stated that DNA analysis on the sample revealed DNA attributable to the deceased and that "a major male DNA profile has been determined at 9 STR loci on his right hand fingernail clippings (6-1) and is suitable for comparison". An August 15, 2011 CFS report stated that the Item was tested further.

[12] The CFS uploaded data for both tests to the NDDB. The data about the first test was uploaded on May 9, 2011; data about the second test was uploaded on September 19, 2011.

[13] Appendix "A" to the NDDB third-party records application listed five categories of information for which the applicant sought production. They included: any information about the Item uploaded to the NDDB on May 9, 2011; the "original DNA profile (all alleles) received" by the NDDB for the Item; and the NDDB data logs detailing the initial file creation and all subsequent activity for the Item.

[14] Nordheimer J. (as he then was) heard the pre-trial application on April 18, 2016. A representative from the NDDB, Mr. Jeff Modler, attended. He brought with him the documents about the Item in the possession of the NDDB. Mr. Modler answered questions posed by the trial judge, Crown counsel, the applicant, and amicus.

[15] The applicant confirmed to the trial judge that he was looking for the original information uploaded to the NDDB on May 9, 2011 – in his words, "the specific information about what … numbers were sent to" the NDDB.

[16] Mr. Modler told the court that the NDDB's standard documentation with respect to any DNA sample it receives consists of:

(i) the information sent by the testing laboratory, such as the CFS;

(ii) a disposition report to the submitting laboratory itemizing all the sample information received and whether it met the acceptance criteria;

(iii) a record of what genetic information was entered at each region of interest that was uploaded with a DNA profile; and

(iv) an audit trail record that explains all the actions taken in relation to a particular sample through various submissions received by the NDDB.

According to Mr. Modler, the disposition record does not catalogue the allele cells but identifies the regions of DNA from which the information is received.

[17] During the application hearing, the applicant told Mr. Modler that he was interested in "the actual numbers that are associated with each allele that's uploaded". Mr. Modler stated that the NDDB maintains a record that outlines the genetic information that pertains to the DNA profile and the date it was received by the NDDB. To that response, the applicant replied: "Perfect".

[18] Mr. Modler stated that "all information pertaining to [the Item] is available in the records that are being provided" in response to the third-party records subpoena. He further advised that the NDDB did not have the ability to change a DNA profile.

[19] Mr. Modler also explained how the audit trail showed that on May 9, 2011 the NDDB received from the CFS a DNA profile with information at 10 genetic loci and on September 19, 2011 the CFS uploaded information for 4 additional regions of DNA. He stated there was no indication in the audit trail record that changes had been made to the information originally entered on May 9, 2011.

[20] At the conclusion of the hearing, Nordheimer J. ordered the NDDB to produce to the applicant all the documents brought to the third-party records hearing, which it did.

[21] At a June 22, 2016 pre-trial appearance, the applicant expressed concern that the information produced by the NDDB was not complete. Amicus thereupon made inquiries of Mr. Modler. Following his conversation with Mr. Modler, amicus prepared a memo for the applicant explaining how the records previously provided in fact were responsive to the applicant's request. The memo was filed with the court. Amicus's memo stated, in part, that "Mr. Modler advised that the NDDB has provided records with respect to all the requests set out in the application materials and subpoena." The memo explained that the two documents the NDDB had provided in response to the applicant's request for the information uploaded on May 9, 2011 and "the original DNA profile data (all alleles)" received by the NDDB were the SDIS Specimen Details Report (Short) and the SDIS Specimen Details Report (Long). In his memo, amicus wrote that Mr. Modler had advised that "[t]he NDDB is not capable of generating any other reports." [Emphasis added].

[22] Following the appointment of Nordheimer J. to this court, Goldstein J. assumed responsibility as the trial judge. The applicant renewed his request for more information from the NDDB. Goldstein J. did not see a basis in the record on which to make a further production order.

Application of the general principles

[23] According to the applicant's materials, his present application marks the first step in his effort to adduce as fresh evidence information about the Item that he contends the NDDB possesses but has not disclosed. The applicant brings this application notwithstanding: (i) the explanation given at the third-party records application hearing by Mr. Modler about what information regarding the Item the NDDB possesses; (ii) Mr. Modler's representation to the court that the information he brought in response to the third-party records subpoena constituted all the information in the possession of the NDDB about the Item; (iii) Mr. Modler's subsequent explanation to amicus about which information related to the specific requests listed in Appendix "A" to the applicant's third-party records notice of application; and (iv) his confirmation to amicus that "[t]he NDDB is not capable of generating any other reports".

[24] In support of his present application to obtain further disclosure and examination in respect of the CFS upload of information about the Item to the NDDB on May 9, 2011, the applicant advances three arguments.

[25] First, the applicant points to an article he has found titled "A Simplified Guide to DNA Evidence" that states the DNA analysis process can provide an analyst with a chart called an electropherogram, which displays the genetic material present at each locus tested. Relying on this article the applicant asserts, in effect, that the NDDB must possess an electropherogram for the Item.

[26] We see no merit in this argument. The information provided by Mr. Modler in 2016 to the court and to amicus was clear: the NDDB does not have the capability to generate any records other than those produced. The applicant has not offered any evidence to the contrary.

[27] Second, the applicant points to evidence given at trial by his forensic expert, Ms. Valerie Blackmore. During his examination-in-chief of Ms. Blackmore, the applicant attempted to elicit evidence about a conversation she had with Mr. Craig Carroll of the NDDB. Given the hearsay nature of the evidence sought, the trial judge excused the jury and permitted the applicant to pose some questions to Ms. Blackmore in a voir dire. Ms. Blackmore testified that she had learned from Mr. Carroll that the NDDB maintains an audit trail record for all DNA sample information that it receives. The applicant submits that this evidence suggests the existence of further, undisclosed information at the NDDB about the Item.

[28] We do not accept this submission. Mr. Modler produced the audit trail record for the Item. Ms. Blackmore's testimony does not suggest the existence of some other record.

[29] Finally, the applicant relies on comments made by the trial judge at the end of that voir dire. Upon the completion of the examination of Ms. Blackmore, the trial judge stated that he would "put this aside for the moment because we have a jury, and I'll hear some submissions later". The applicant submits that "for reasons never explained on the record, the court never returned to resolve this ongoing disclosure issue." That unresolved issue, in the applicant's view, provides support for his present request for further disclosure.

[30] We disagree. As stated, Ms. Blackmore did not give any evidence on the voir dire that suggested the NDDB possessed a record about the Item that had not been produced. Further, just before directing the voir dire with Ms. Blackmore, the trial judge informed the applicant that if he intended to attempt to revisit the issue of disclosure by the NDDB he would have to file an affidavit from the person at the NDDB with whom Ms. Blackmore had talked. The voir dire was then held, during which it became apparent that the information Ms. Blackmore had received from Mr. Carroll at the NDDB merely described the type of information already disclosed by Mr. Modler.

Conclusion

[31] Accordingly, on the record before us, the applicant has not established a basis on which to conclude there exists at the NDDB further material that is potentially relevant to a fresh evidence application on this appeal. The applicant has not established the first link required by Trotta.

IV. DISPOSITION

[32] For these reasons, the application is dismissed.

"David Brown J.A."

"Gary Trotter J.A."

"David M. Paciocco J.A."