ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

AMINA CHAUDHARY (NEE SARABJIT KAUR MINHAS)

Alan Young , for the Applicant (Responding Party)

Applicant (Responding Party)

• and -

THE ATTORNEY GENERAL OF ONTARIO

Robert E. Charney and Frank Au , for the Respondent (Moving Party)

Respondent (Moving Party)

HEARD: February 21, 2012

M. Dambrot J. :

[ 1 ] The applicant, who was convicted of first degree murder in 1984, seeks a declaration that:

… 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.

[ 2 ] I have been assigned to adjudicate upon this claim, and as a matter of convenience, to hear any preliminary motions in respect of it. This is one such preliminary motion. In support of this application, the applicant has filed four volumes of material, including six affidavits. Each of the affiants is a law student enrolled in the Innocence Project clinical education program at Osgoode Hall Law School. The respondent brings this motion to strike parts of these affidavits, and related parts of the applicant’s Fresh as Amended Notice of Application and Notice of Constitutional Question.

A Few Background Facts

[ 3 ] As I have noted, the applicant was convicted of first degree murder. Her conviction was upheld by the Ontario Court of Appeal, and leave to appeal to the Supreme Court of Canada was denied. The applicant may apply to the Minister of Justice for review on the grounds of miscarriage of justice pursuant to s. 696 of the Criminal Code of Canada , but has not yet done so .

[ 4 ] The scope of the application now before me was originally broader. The applicant sought an order similar to the present one, but in relation to convictions for all offences prosecuted as indictable offences without reference to the available punishment. The application is now limited to indictable offences punishable by life imprisonment. Upon a motion brought by the Attorneys General of Canada and Ontario, Belobaba J. struck the original notice of application with leave to amend if the amended application were confined to the specific facts in this case.

[ 5 ] While I am not certain that the redrafted application precisely meets the terms of the order of Belobaba J., no further objection to it has been taken, and I will read it in a manner consistent with the intention of Belobaba J. In this regard, I note that what Belobaba J. permitted was an application seeking declaratory relief with regard to the applicant’s own case. As he put it, the applicant is entitled to bring an application for a declaration “that the preservation of evidence in a murder case [elsewhere he referred to a “homicide-related offence”] for the lifetime of the offender is a fundamental principle of justice under s. 7 of the Charter . ” I presume that the applicant’s use of the phrase “indictable offence punishable by life imprisonment” should be read to be limited to murder and other homicide-related cases punishable by life imprisonment.

[ 6 ] At the applicant’s trial, the forensic pathologist who prepared the autopsy report of the deceased testified that the deceased sustained a blow to the scalp before being strangled, and that the blow could have rendered the deceased unconscious. While describing the location of the bruise on the scalp of the deceased, the pathologist indicated that there were photographs that might “be better” than his description. Production of these photographs was not requested by the applicant’s counsel, and they were not made exhibits at the trial.

[ 7 ] The applicant now maintains that examination of these photographs by a physician could help to exonerate her. Production was sought from the Crown Law Office-Criminal and the Office of the Chief Coroner. Despite many steps taken to locate these photographs by officials in these offices, the photographs have not been found.

[ 8 ] In the impugned affidavits, the affiants provide second-hand information describing the Innocence Project’s involvement in investigating the possible wrongful conviction for murder of five other persons, two in Ontario, one in British Columbia and two in Nova Scotia. In particular, the affiant discusses the loss of evidence in each case and its alleged impact.

[ 9 ] The Attorney General argues that this evidence is irrelevant and prejudicial, and that the applicant has no standing to raise issues arising from other investigations.

Discussion

The affidavit evidence

[ 10 ] With respect to the five affidavits, the concern raised by the Attorney General is that he should not be placed in the position of having to test the truth or accuracy of allegations raised in them relating to parties who are not before me, and to events that are outside of this province, particularly since the information is second-hand, and because the applicant lacks standing to raise these allegations.

[ 11 ] The applicant says that the Attorney General’s concerns are misplaced. There is no need for him to investigate the facts raised in these paragraphs, because I am not being asked to adjudicate the constitutional claims of these five individuals. Instead, the impugned evidence simply constitutes legislative facts designed to provide the Court with some evidence of the impact of state agencies failing to enact rules for preservation and destruction of evidence.

[ 12 ] The applicant stated the purpose of this evidence most clearly in paragraph 17 of her factum. She said that “this evidence is being tendered for a very limited purpose – to illustrate the types of information/evidence or exhibits which have not been properly preserved in the context of the re-investigation of murder cases.” Mr. Young re-iterated this in oral argument. He said that the evidence is simply intended to show me the types of evidence that can be lost. The applicant emphasized in paragraph 18 of her factum that it will not be necessary to determine whether or not these non-parties have meritorious claims of wrongful conviction, whether or not the loss of evidence made it impossible for them to reinvestigate their convictions, whether or not the requested evidence could potentially lead to exoneration, or whether or not the police or other public officials were at fault in failing to preserve the requested exhibit or evidence.

[ 13 ] In view of this narrow articulation of the basis for the admissibility of the impugned evidence, in the course of argument I asked counsel for the applicant what help this evidence would really be to me, given that there are ample illustrations before me of the type of information and evidence that has not been preserved post-conviction, both in this case and in the reports of various commissions of inquiry, notably those concerned with the wrongful convictions of David Milgaard, Guy Paul Morin, Thomas Sophonow, Steven Truscott and James Driskell. In response to my question, Mr. Young candidly stated, “Not that much.” He said that the evidence has been provided for context, and that it might be helpful, but it is not indispensible.

[ 14 ] I note, however, that it might not be obvious to a reader of the affidavit material that the basis for which the impugned evidence is included is so narrow. A great deal more about some of these cases is recited than would be necessary to accomplish the stated purpose. Despite this, and having regard to the narrow basis advanced for the admissibility of the impugned evidence, I will dismiss that part of the motion asking that parts of the affidavit be struck. But I wish to make clear that I am admitting the evidence for the limited purposes of showing that there are other cases in which persons seeking to be exonerated post-conviction have said that evidence has not been properly preserved, and of showing the types of evidence that they have expressed concerns about. I will neither explore the credibility and reliability of the allegations made in these cases, nor adjudicate upon them in any way. To the extent that the evidence exceeds the bounds of what is necessary to advance the applicant’s stated purpose, I will not consider it. As a result, in my view, the Attorney General need not make the kinds of inquiries about these other cases that have concerned him.

The Amended Notice of Application and the Amended Notice of Constitutional Question

[ 15 ] I turn next to the Attorney General’s request that I strike paragraph 2(e) of the Amended Notice of Application, and the identical paragraph (e) of the Amended Notice of Constitutional Question. These paragraphs give me greater reason for concern than does the impugned affidavit evidence. These paragraphs identify as one of the grounds for this application in the Fresh as Amended Notice of Application, and as one of the material facts giving rise to the constitutional question in the Amended Notice of Constitutional Question, the assertion that “in the past 13 years the Innocence Project has discontinued work on 7 files primarily because of the loss or destruction of exhibits needed for an effective reinvestigation.” The paragraphs continue, in each case, to describe in some detail the loss of evidence in the case of Kevin Campbell, together with the allegation that, as a result, “the Innocence Project is unable to complete a meaningful investigation of Mr. Campbell’s case.” In my view, these paragraphs cannot be understood to simply illustrate the kind of evidence that has not been preserved in other cases. On the contrary, these paragraphs advance specific allegations of the loss or destruction of evidence in other cases, and in particular in Mr. Campbell’s case, that take on constitutional dimension, as separate grounds for the declaration, and as material facts that give rise to the constitutional question. In my view, this is inconsistent with the ruling of Belobaba J.

[ 16 ] In reaching this conclusion, I note that Belobaba J. determined that in order to establish standing to seek the relief she requests under s. 24(1) of the Charter , the applicant must show that her rights have been infringed or denied as a result of the loss or destruction of autopsy photographs in her case. She is not a public interest litigant, and her claim cannot be based on the loss or destruction of evidence in other cases. But that is precisely what the two impugned paragraphs seek to accomplish. As a result, the inclusion of these allegations in the Notice of Application and Notice of Constitutional Question cannot stand. Paragraphs 2(e) of the Amended Notice of Application and the identical paragraph (e) of the Amended Notice of Constitutional Question must be struck.

Disposition

[ 17 ] The motion is granted in part. The impugned portions of the affidavits may remain in the record, subject to the limits on their use that I have outlined. Paragraphs 2(e) of the Amended Notice of Application and the identical paragraph (e) of the Amended Notice of Constitutional Question are struck.

M. DAMBROT J.

RELEASED: March 27, 2012

COURT FILE NO.: CV-10-00401343-0000

DATE: 20120327

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: AMINA CHAUDHARY (NEE SARABJIT KAUR MINHAS) Applicant (Responding Party) - and - THE ATTORNEY GENERAL OF ONTARIO Respondent (Moving Party) REASONS FOR JUDGMENT DAMBROT J.

RELEASED: MARCH 27, 2012