ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR093822
DATE: 20120112

B E T W E E N:

Her Majesty the Queen

S. Ferrone, for the Crown

• and -

Asizkpor Dessouza

E. Ghebria

Defendants

HEARD: January 11, 2012

RULING ON MISTRIAL APPLICATION

Ricchetti, J.

The mistrial Application

[ 1 ] The Defence brings this application as a result of the evidence given by Constable Preddie during the course of his cross examination.

The Charges

[ 2 ] Mr. Dessouza has been charged with:

a.Sexual assault on M.G. with a weapon on April 27, 1996; and

b.Uttering a death threat to M.G. on April 27, 1996.

Background

[ 3 ] Ms. G. is the complainant in this case. She was 18 years old at the time of the alleged sexual assault.

[ 4 ] The allegations are that Mr. Dessouza was Ms. G.'s landlord at the time. In the early hours of April 27, 1996 Mr. Dessouza sexually assaulted Ms. G. in his room while holding a knife to her. Mr. Dessouza used 2 condoms during the alleged sexual assault. After the alleged assault, Ms. G. went to the lower level of the apartment. Mr. Dessouza followed her and then threatened her with death if she told anyone. Mr. Dessouza allegedly removed the telephone from the wall and chained all the doors to ensure that Ms. G. couldn't leave. Ms. G. alleges that at some point Mr. Dessouza broke a bottle over his head and threatened to tell the police Mr. Dessouza had done this if she went to the police. There was considerable blood from this wound. After a short while (counsel agree it was between 30 - 60 minutes), Mr. Dessouza went upstairs to get a cigarette. Ms. G. left the apartment. She ran outside, wearing just a nightgown, no shoes, no socks. Mr. Dessouza chased Ms. G.. Ms. G. ran across to a gas station and used a payphone to call 911.

[ 5 ] The police arrived. Shortly thereafter, Mr. Dessouza was arrested for sexual assault. Certain items, including the condoms, were seized by Constable MacNeil while arresting Mr. Dessouza. Constable MacNeil later seized the clothing Mr. Dessouza was wearing that night.

[ 6 ] Ms. G. provided the police with a videotaped statement. Later the same day, Mr. Dessouza's apartment was search pursuant to a search warrant. Photographs were taken and items were seized by Constable Preddie.

[ 7 ] At some point Ms. G. went to the hospital and certain tests were performed on her. The precise time when Ms. G. went to the hospital and which tests were performed has not been identified.

[ 8 ] So far in this trial, as can be discernable from the cross examination, the Defence has:

i. attacked the credibility of Ms. G. based on a significant number of inconsistencies between her evidence at trial, in her videotaped statement to the police and her evidence at the preliminary hearing; and

ii. attacked the lack of corroborative physical evidence to support the events described by Ms. G..

[ 9 ] The Defence has pursued the lack of corroborative physical evidence in two primary areas, which relate to this mistrial application:

i. The lack of blood from the broken bottle wound in the kitchen or elsewhere in the apartment or on Mr. Dessouza's clothing or on Ms. G.'s nightgown, which the Defence contends would have been present if Ms. G.'s version of the events were true; and

ii. The lack of any forensic evidence of sexual intercourse having taken place. Ms. G. went to the hospital after the alleged sexual assault. The exact time she went to the hospital is unknown. Ms. G. had a number of tests done - but she couldn't remember what kind of tests was done. Ms. G. admitted that she had a vaginal aspirate test. It is not known whether a "sexual assault kit" was taken by the hospital. Ms. G. did not know what the police found in the tests.

[ 10 ] Constable MacNeil was not involved beyond the arrest and seizing some items. He didn't know what happened to the items he seized but speculated they may have gone for forensic testing with the Centre for Forensic Sciences (CFS).

[ 11 ] Until Constable Preddie's evidence there was no evidence, one way or the other, that any items seized by any of the officers or the results from a "sexual assault kit" had been sent to CFS.

[ 12 ] The pre-trial disclosure, given some 14 or 15 years ago, included a will say statement from Constable Preddie which stated the items collected "will [or would] be sent to the Center for Forensic Sciences for further investigation." The Defence had assumed the police had done so and continued with that assumption right up until the evidence of Constable Preddie on January 11, 2012.

[ 13 ] The Defence had not asked the Crown for the CFS results prior to trial. Had the Defence done so, the Defence would have known the police had not sent any of the seized items or the "sexual assault kit" (if one exists) to CFS.

[ 14 ] The Defence was told by the Crown that it would not be calling any forensic evidence at this trial. The Defence has not notified the Crown that he proposed to call any expert evidence at trial.

[ 15 ] During the cross examination of Ms. G., the Defence did put to Ms. G. that no sexual intercourse had taken place between Ms. G. and Mr. Dessouza. Ms. G. denied the suggestion. Clearly, this is the theory of the Defence.

The Evidence of Constable Preddie

[ 16 ] The relevant portion of Constable Preddie's evidence, the Crown's last witness, was as follows:

Q. Officer, I have a will state from you that indicates, and maybe you can tell me from personal recollection, the items you seized, the items that you've noted down in the log, they certainly would have been sent for examination to the Centre of Forensic Sciences?

A. No, they were not.

Q. None of the items were sent?

A. No, they were not. Not that I recall.

Q. What about the sex assault kit, was that submitted to the Centre of Forensic Sciences?

A. Not that I recall.

Q. I'm showing you a will state. It's referring to Constable Preddie and gives your — your background and your involvement on that case.

A. That's correct.

Q. Okay. It seems to indicate here, "Sexual assault kit will be submitted to CFS for examination"?

A. That is correct.

Q. Okay. You don't have a recollection of that being done?

A. No. What I recall is that after further conversation there was a issue in regards to the investigation that consent was the issue. So we wouldn't necessarily examine items for DNA or any kind of fluids because once we know that sex had taken place between two people there would be no point to examining the kit and the Centre of Forensic Science wouldn't examine a sexual assault kit once they felt that consent was the overriding issue.

Q. I'm sorry where did you get that impression from?

A. The Centre of Forensic Science.

Q. No, the impression that — that you'd proven that sex occurred between the two of them, where did you get that impression from?

A. From conversations with the investigating officer.

Q. You're — you're referring to Officer Christidis at this point? Is that — is that what the — the look was?

A. That's correct.

Q. When did you have this conversation with Constable Christidis?

A. I don't recall.

Q. So hold on, you recall the specifics of a conversation from Officer Christidis telling you that....

A. No, I don't recall the specifics but what I'm saying is that I don't recall the kit being sent to the Centre of Forensic Science because there was an issue in regards to consent.

MR. GHEBRAI: Your Honour, perhaps I could take the break and I can canvass this issue.

THE COURT: Let's do that. Let's take our morning break. Twenty minutes.

The Defence Mistrial Application

[ 17 ] The Defence submits that:

i. The failure to advise the Defence that the items seized and the "sexual assault kit" (if one existed) were not sent to CFS was a breach of the Crown's disclosure obligation and has prejudiced the Defence. The Defence states in his application "This was not noted in disclosure, nor in any officer notes provided by the Crown. In fact, the only notation speaking to the issue was that items were collected, provided to officer Preddie, and that the items 'were to be sent to CFS for examination". (para 10 of the Mistrial Application)

ii. Officer Preddie "provided the unelicited further commentary that the reason for these items not being sent to CFS was the fact that there was no issue as to whether sex had occurred between the two parties". (para 9 of the Mistrial Application)

The Crown Position

[ 18 ] The Crown submits that either:

i. The hearsay evidence of Constable Peddie can be dealt with by way of a correcting or limiting instruction to the jury at this time and repeated in the Final Charge; or

ii. The evidence is admissible in order to respond to the Defence challenge to the "integrity of the investigation".

[ 19 ] Let me deal with the Crown submission relating to the "integrity of the investigation".

[ 20 ] The Defence had and has not attacked the integrity of the police investigation. The answer from Constable Preddie that the seized items and "sexual assault kit" had not been sent to CFS was a surprise to Defence. Defence was simply attempting to obtain confirmation that the police had done so.

[ 21 ] Defence counsel submits he intended to go to the jury with the submission that the police had taken the seized items and "sex assault kit" and forwarded them to CFS. If anything, the Defence was content with a thorough police investigation because it would assist the Defence's position that, despite forensic testing, there was no forensic evidence to support the complainant's version of events.

[ 22 ] The Defence intended to tell the jury that the Crown has led no evidence regarding the results from the CFS and ask the jury to infer that the reason for this is that the results would not support the Crown's position.

[ 23 ] I have some difficulty with the way in which Defence counsel suggested he would put the matter to the jury. The absence of any positive results from the CFS (even if they had done any testing) would require some evidence that in the circumstances, certain results should or could be expected and, in the absence of those results, the jury could draw certain conclusions. This is particularly true where the accused had 2 condoms on, the exact tests on Ms. G. are not in evidence and the timing when she went into the hospital is not in evidence. Each of these (and perhaps other factors) would have a significant impact on the relevance or importance of any negative results from CFS. Without any evidentiary foundation as to whether, in the circumstances of this case, results should or could be expected and what negative results might mean, any statement to the jury that negative results support the Defence version of events would be mere speculation.

[ 24 ] On the other hand, if the Defence wanted to put to the jury that there is no forensic evidence corroborating that sexual intercourse between Ms. G. and Mr. Dessouza had occurred, that would be proper based on the evidence. In any event, this is an issue which can be canvassed during the pre-charge conference.

The Law

[ 25 ] The law is set out in Justice Ferguson's text, Ontario Courtroom Procedure , 2009 Lexis Nexis at pages 478-479:

There are broad common law powers to declare a mistrial: R. v. Burke, 2002 SCC 55 , [2002] S.C.J. No. 56 , [2002] 2 S.C.R. 857 , 164 C.C.C. (3d) 385 at para. 75 .

In declaring a mistrial the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice.

The test ultimately boils down to whether there is a “‘real danger’ of prejudice to the accused or danger of a miscarriage of justice”: Burke (above) at para. 74.

Declaring a mistrial is a last resort. In R. v. Rose, 1998 768 (SCC) , [1998] S.C.J. No. 81 , [1998] 3 S.C.R. 262 , 129 C.C.C. (3d) 449 , Cory J. stated (at paras. 124–126):

. . . there are two approaches available to a trial judge to remedy unfairness resulting from an improper closing address. First, if a trial judge is of the opinion that an irregularity in counsel’s address has jeopardized the fairness of the trial, then, in most situations, it may be rectified by a specific correcting reference to it in the charge to the jury. This should suffice in most cases. Second, if the trial judge is of the opinion that curative instructions alone will not suffice to remedy the damage, then in those relatively rare situations, the prejudiced party may be granted a limited opportunity to reply . . . the judge should not hesitate to correct errors of counsel in order to preserve the fairness of the trial process.

[ 26 ] Constable Preddie's evidence is hearsay. There is no doubt it is prejudicial. The issue is whether the "real danger" of prejudice to Mr. Dessouza can be overcome by a correcting or limiting instruction to the jury. This requires a consideration of how and to the extent of the prejudice caused by this evidence in this trial.

Analysis

Lack of Crown Disclosure

[ 27 ] This submission has no merit. The Defence counsel made an assumption and, the assumption was wrong.

[ 28 ] The disclosure, which goes back some 14 -15 years, clearly stated that the seized items were to be sent - not had been sent to the CFS.

[ 29 ] When Defence counsel did not receive from the Crown any report from CFS and, if this was as central to the Defence case, as now asserted, one would have expected the Defence to request the Crown to produce a copy of the CFS report - even if the report described what had been received, what had been tested and the negative results.

[ 30 ] In any event, the Defence position that "Throughout the entire proceedings, one of the focal point of the defence cross examination of all witnesses centered around the lack of corroborative forensic evidence being put forward by the Crown" (see para 8 of the Mistrial Application) remains available to the Defence. There continues to be no "corroborative forensic evidence" being put forward by the Crown.

[ 31 ] Further, much of the Defence position remains unaffected by Constable Preddie's evidence. For example, the fact that none of the police officers observed any blood in the kitchen, on Ms. G. or her clothes or on Mr. Dessouza or his clothes remains unaffected whether or not CFS had done any testing of the seized items.

[ 32 ] Defence counsel has not suggested and I can think of no "tactical choices" or cross examination which would have been different if the Defence had known at the beginning of trial that the items seized and the "sexual assault kit" (if one existed) had never been sent to CFS.

Disclosure that Police "knew sex had occurred"

[ 33 ] The Defence submits this prejudices Mr. Dessouza in two ways:

i. That it undermines the Defence position regarding the lack of corroborative forensic evidence by giving the Crown a reason to explain to the jury why the forensic testing was not done; or

ii. That it undermines the Defence position no sexual intercourse had taken place between Ms. G. and Mr. Dessouza by telling the jury the police had concluded that sexual intercourse had taken place.

[ 34 ] Constable Preddie's evidence is improper because it was hearsay evidence and he has no knowledge as to what information the police had regarding whether sexual intercourse had taken place, whether any such information was correct or where such information may have been obtained. Perhaps they simply believed Ms. G.. Perhaps there was other evidence the police relied on.

[ 35 ] Constable Preddie's evidence is simply no evidence as to the reason why the seized items or the "sexual assault kit" was not sent to CFS. He was simply told not to send it to CFS and he did not do so. That evidence was admissible.

[ 36 ] As a result, I conclude that the fact the seized items and "sexual assault kit" were not sent to CFS was admissible and, in any event, this was not prejudicial to Mr. Dessouza's right to a fair trial because:

a) It does not change the fact there is no corroborating forensic evidence to support sexual intercourse between Ms. G. and Mr. Dessouza. That argument remains available to the Defence;

b) even if there had been evidence that the items had been given to CFS for testing, the Defence would not have been permitted to say, without further evidence, to the jury that the absence of results from CFS was evidence that no sexual intercourse had taken place. The Defence would have been left with the same argument as above - there is no corroborating forensic evidence to support sexual intercourse between Ms. G. and Mr. Dessouza. The position of the Defence would not have changed; and

c) There is no right for the Defence to have insisted on forensic testing by CFS of the "sexual assault kit", even if one had been done at the hospital. At para 34 and 35 of R. v. Darwish , 2010 ONCA 124 the court concluded that there was no right on an accused to have a "sexual assault kit" forensically tested.

i. The distinction between the right to the disclosure of the fruits of an investigation and a right to demand an additional investigation is made clear in R. v. Daley , 2008 BCCA 257 .

ii. The British Columbia Court of Appeal unanimously rejected this submission, stating at para. 15:

a. The Crown’s obligation was to disclose what could be inculpatory or exculpatory evidence. It did so. Once the appellant had knowledge of the existence of the kit, it was open to him to have it examined and he could easily have done so. He evidently chose not to.

[ 37 ] The real issue is Constable Preddie's explanation as to why the seized items and "sexual assault kit" were not sent to CFS, namely, that he had been told the police knew sexual intercourse took place between Ms. G. and Mr. Dessouza and that testing is not necessary where consent is the issue.

[ 38 ] This is hearsay evidence from this witness. Whatever the reasons the police may have believed sexual intercourse had taken place, whether Mr. Dessouza's videotaped statement or simply believing Ms. G. or some other evidence, is simply not admissible through this witness. This evidence should not have been given by Constable Preddie.

[ 39 ] The evidence of whether sexual intercourse had taken place goes to one of the essential elements of the case. Ms. G. has already testified to the sexual intercourse. The harm is that Constable Preddie's evidence suggests the police believed sexual intercourse had taken place. There is no indication from Constable Preddie where that belief comes from. In fact, Constable Preddie doesn't even say he believes it, he simply says he was told this by Constable Christidis. Constable Christidis was not going to testify at the trial. Constable Preddie was to have been the last Crown witness.

[ 40 ] The fact the police believed Ms. G. will come as no shock to the jury. The police proceeded to arrest Mr. Dessouza and have continued with the prosecution of this matter. I am not persuaded that much has been "given away" by Constable Preddie's evidence.

[ 41 ] I am not persuaded by the Defence that any prejudice cannot be undone by a limiting or correction jury instruction. The jury will be able to understand the hearsay nature of this evidence and why this is not evidence which the jury can rely at all upon for the truth of whether sexual intercourse had taken place.

[ 42 ] I propose to provide the jury with a "hearsay" instruction going on to make it clear that Constable Preddie's evidence regarding why the seized items and "sexual assault kit" had not been sent to CFS is hearsay evidence and cannot be used by the jury:

a. That sexual intercourse had taken place between Ms. G. and Mr. Dessouza; or

b. that the police believed or had any reasonable or rational basis or reason to believe that sexual intercourse had taken place between Ms. G. and Mr. Dessouza; or

c. for any other purpose in determining whether the Crown has established Mr. Dessouza's guilt beyond a reasonable doubt.

Conclusion

[ 43 ] The mistrial application is denied.

Ricchetti, J.

Released: January 12, 2012.

COURT FILE NO.: CR093822
DATE: 20120112

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN - and – Asizkpor DESSOUZA Defendant

RULING ON MISTRIAL APPLICATION

Ricchetti, J.

Released: January 12, 2012