COURT FILE NO.: CV-10-00401343-0000 DATE: 20120918

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

AMINA CHAUDHARY (NEE SARABJIT KAUR MINHAS) Applicant

• and -

THE ATTORNEY GENERAL OF ONTARIO Respondent

Counsel: Alan Young, for the Applicant Robert E. Charney and Frank Au, for the Respondent

HEARD: April 23, 2012

M. DAMBROT J.:

[1] The applicant, who was convicted of first degree murder in 1984 under the name Sarabjit Minhas, 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] The declaration sought by the applicant is a broad one. But in her original Notice of Application and Notice of Constitutional question, the applicant had proposed a declaration worded even more broadly. The applicant then sought 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 offence prosecuted as an indictable offence all evidence and exhibits pertaining to the case be preserved for the lifetime of the offender, unless (1) the offender waives this requirement, or (2) a Court Order is obtained, upon notice to the accused, allowing for the destruction of any or all of the evidence.

[3] On a motion to strike brought by the respondent, and by the Attorney General of Canada, who was then also a respondent, Belobaba J. struck the Notice of Application, with leave to amend. (See Chaudhary v. Canada (Attorney General), 2010 ONSC 6092, 263 C.C.C. (3d) 537.) He stated, at paragraph 15 of his decision:

I agree with the federal and Ontario AG's that the phrase "all evidence and exhibits pertaining to the case" is so imprecise and ill-defined as to be completely unworkable. The declaration sought would include every conceivable piece of investigative material or evidence relating to the commission of any indictable offence (including hybrid offenses), whether or not made an exhibit at trial and whether or not relied upon by the police or the Crown. It would include anything found at a crime scene, any property relating to that crime, and, indeed, the crime scene itself - regardless of whether the police, the Crown or the accused even considered the particular item of evidence relevant or not.

[4] He continued, at paragraph 17:

In my view, the declaration being sought by the applicant is much too encompassing and much too undefined for either meaningful guidance or judicial manageability. For me, this alone provides sufficient reason to conclude that the declaration as currently worded has no chance of success. When one adds to this the fact that the proposed declaration would apply the life-time evidence preservation standard even to hybrid offenses that are prosecuted as indictable offenses, one is satisfied beyond any doubt that no reasonable judge would ever grant this relief. The proposed application has absolutely no chance of success and should be struck.

[5] He concluded, at paragraph 28:

… In my view, an amended declaration would survive a motion to strike if it was confined to the facts in Chaudhary - such as, and this is only an example, 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 a homicide-related offence all evidence pertaining to the case that should have been disclosed under Stinchcombe be preserved for the lifetime of the offender, unless (1) the offender waives this requirement, or (2) a Court Order is obtained, upon notice to the accused, allowing for the destruction or other disposition of any or all of the evidence." [Emphasis in original]

[6] Subsequent to the decision of Belobaba J., the applicant filed a Fresh as Amended Notice of Application in which she sought the present proposed declaration. The respondent then brought a motion before me to strike parts of affidavits filed by the applicant and related parts of the applicant’s Fresh as Amended Notice of Application and Notice of Constitutional Question. In my reasons, (see 2012 ONSC 1936, [2012] O.J. No. 1542) I stated, at paragraph 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.

[7] I intend to read the reference in the proposed declaration to be limited to homicide cases punishable by life imprisonment.

BACKGROUND

[8] As I have noted, the applicant was convicted of first degree murder in 1984. Her conviction was upheld by the Ontario Court of Appeal on August 5, 1986 (see R. v. Minhas (1986), 1986 144 (ON CA), [1986] O.J. No. 745, 29 C.C.C. (3d) 193), and leave to appeal to the Supreme Court of Canada was denied on December 7, 1987 (see [1987] S.C.C.A. No. 370, 36 C.C.C. (3d) vi.).

[9] The applicant retained the Innocence Project in 1997, and the Innocence Project commenced this application on April 19, 2010, and filed its Fresh as Amended Notice of Application on February 11, 2012.

[10] On July 11, 2011, the Innocence Project filed an application on behalf of the applicant for Ministerial review of her conviction pursuant to s. 696.1 of the Criminal Code R.S.C. 1985, c. C-46.

The Evidence at Trial

Evidence implicating the applicant in the murder

[11] Rajesh Gupta, the deceased, was eight years old and lived with his father and mother in Scarborough. On February 3, 1982, he left home at about 8:45 a.m. to walk to school. He did not arrive at the school and was never seen alive again. Shortly after 4:10 p.m. that day a truck driver discovered the deceased's body lying in the snow in the centre part of a turning circle on a dead end street. He died as a result of strangulation with a ligature.

[12] The evidence against the applicant included evidence of motive, evidence of opportunity, forensic evidence, circumstantial evidence of her presence outside of the home of the deceased at the time when he disappeared, forensic evidence, and evidence of admissions. I will describe this evidence only briefly.

[13] I begin with motive. Vijay Gupta was the uncle and brother by adoption of the deceased. Vijay Gupta and the applicant had had a sexual relationship for several years. Their families objected to their keeping company and were opposed to their marriage. It was the position of the Crown that the applicant killed the deceased boy from motives of revenge. It is not necessary for me to explain the evidentiary basis for this position in these reasons.

[14] Next, opportunity. On the day the deceased was killed, a neighbour of the deceased's family observed a green Honda Civic automobile parked on the opposite side of the street between her house and the Gupta residence with a person seated in the driver's seat. She first saw the car at 8:30 a.m. and noticed that it was still there at 8:40 a.m. The applicant owned a green Honda Civic automobile that corresponded with the description of the automobile observed near the deceased's home by the neighbour.

[15] Next, the forensic evidence. On the day of his death, the deceased was wearing a red and white toque and an orange coloured scarf. Four red acrylic fibers were found on the passenger seat of the applicant's car which were similar to the red acrylic fibers in the deceased's toque. Three pale orange acrylic fibers, which were similar to the pale orange acrylic fibers in the yarn of the deceased's scarf, were also found in the car; one in the front passenger seat and the other two in the cargo area of the vehicle. Two white acrylic fibers, which were similar to the white acrylic fiber found in both the toque and the scarf, were also found in the car. In an interview with the police on April 8, 1982, the applicant said that no person other than herself had driven or used her car since January 1, 1982.

[16] In addition, debris found in the deceased's clothing was similar to debris from the area of the garage where the applicant parked her car. Given the nature of the debris, the chance would be low that a random sample of soil and debris from any other location would be similar to this particular sample.

[17] Finally, admissions. Vijay Gupta testified that in a telephone conversation on May 12, 1982, after he told the applicant that the way she acted that day at lunch made him think she did it, the applicant replied, "Yes, I did it. What are you going to do?" He further testified that on May 17, 1982, after having sexual intercourse with the applicant at a motel, she expressly admitted killing the deceased boy.

[18] Police officers also testified that upon her arrest, the applicant made utterances to them that could readily be understood to be admissions of guilt.

[19] The applicant did not testify.

[20] On appeal, Martin J.A. was obviously of the view that the Crown’s case was strong. In dismissing the appeal despite errors made by the trial judge, he stated, “The cogency of the admissible evidence against the appellant was such that I am completely satisfied that the verdict would necessarily have been the same if the errors considered cumulatively had not occurred.”

The Alleged Violation of the Applicant’s Right not to be Deprived of her Liberty Except in Accordance with the Principles of Fundamental Justice Guaranteed by [Section 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[21] In this application, Ms. Chaudhary, supported by the Innocence Project, raises genuine concerns about the need for meaningful and uniform evidence retention standards in the post-appeal stage of a criminal prosecution. However, Ms. Chaudhary is not challenging the validity of a government law or regulation in this application. Rather, her application has been brought under Rule 14.05(3)(g.1) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, which allows "a remedy under the Canadian Charter of Rights and Freedoms." More specifically, she seeks a remedy under s. 24(1) of the Charter. But before she is entitled to a remedy under s. 24(1), she must establish that her rights under the Charter have been infringed or denied. She is not a public interest litigant.

[22] In an effort to satisfy this prerequisite, Ms. Chaudhary has attempted to demonstrate that her rights under s. 7 of the Charter, as described in her proposed declaration, were infringed when Ontario lost or destroyed certain autopsy photographs. For that reason, it is necessary to examine the evidence concerning these photographs.

[23] I have already noted that the victim in this case died as a result of strangulation with a ligature. There was no dispute about this. Dr. Charles Smith, who conducted the autopsy in this case, testified that he observed the mark of a ligature around the neck of the victim. But counsel for the applicant at trial raised the question of whether the applicant was strong enough to have strangled the deceased.

[24] In response, the Crown called evidence that although the applicant was unable to use her left hand for a time after being stabbed in 1980, she had fairly well recovered the use of her hand by the end of 1981. In addition, the Crown adduced the evidence of a police officer who testified that on June 1, 1982, while conducting surveillance on the applicant and Vijay Gupta seated in a car, he observed the applicant seize Gupta by the throat, push him up against the side of the car, grab his hair, smash his head against the glass and punch Gupta with both hands.

[25] The evidence of the assault by the appellant on Gupta was adduced by the Crown to show that the appellant had the physical ability to strangle the deceased and to overcome the appellant's contention that she had a disability in her left hand which rendered it impossible for her to kill the deceased.

[26] In addition, Dr. Smith testified that that the deceased had a bruise on his scalp that was 2.5 to 3 centimetres in diameter. The injury was recent, and was consistent with having been caused by a blow from a blunt instrument. Dr. Smith said that the blow that caused this injury was sustained prior to strangulation, and that it was significant, and while it would not necessarily have rendered the deceased unconscious, it could have.

[27] In examination-in-chief, when Dr. Smith was describing the location of the bruise on the victim’s scalp, the trial Judge interjected, “You are indicating about halfway back along the skull.” Dr. Smith replied, “Yes. We have photographs of that which might be better than my description.” No one took Dr. Smith up on his offer to produce the photographs. In particular, counsel for the applicant did not ask to see the photographs at that time, or have them entered as exhibits.

[28] Once again, on appeal, the applicant raised no concern about the photographs. Indeed, the applicant raised no issue about the bruise on the victim’s head. On the contrary, the applicant took the position that in view of the evidence that the applicant had the use of her hand at the time of the killing, and the evidence of the pathologist that the strangling could be accomplished with one arm, the whole question of whether the applicant was strong enough to have strangled the deceased was no longer in issue. Admittedly this may have been a tactical position. It permitted the applicant to argue, unsuccessfully as it turned out, that the evidence of her assault on Vijay Gupta should not have been admitted, because its prejudicial effect outweighed its probative value. Nonetheless, the continued indifference of the applicant on appeal to the need for production of the photographs is telling.

[29] What has changed?

[30] First, in 1997, the applicant retained the Innocence Project, which began seeking information, exhibits and evidence pertaining to the applicant’s conviction from the Toronto Police Services, the Office of the Chief Coroner, the Crown Law Office Criminal, and the Centre for Forensic Sciences.

[31] Second, in 2005, Dr. Barry McLellan, who had recently become the Chief Coroner for Ontario, ordered a review of 45 child autopsies in which Dr. Smith, the pathologist in this case, had concluded the cause of death was either homicide or criminally suspicious. The coroner's review found that Smith made questionable conclusions of foul play in 20 of the cases.

[32] Third, on April 19, 2007, the Chief Coroner announced a review of criminally suspicious and homicide cases where Dr. Smith conducted autopsies or gave opinions. This case was included in that review. Dr. Milroy conducted the review.

[33] Fourth, on January 9, 2008, Dr. Milroy confirmed that the cause of death of Rajesh Gupta was ligature strangulation.

[34] Fifth, on January 10, 2008, the Innocence Project asked Dr. Milroy to re-examine Dr. Smith’s conclusion about blunt force trauma to the victim.

[35] Sixth, on February 12, 2008, Dr. Milroy agreed to conduct a second review of the Gupta file. However on March 21, 2008, he noted that he had not seen the photographs of the bruise, but would be happy to examine them if they could be found. He also suggested asking an experienced pediatric emergency room physician how likely a blow causing the particular bruise was to cause a decrease in consciousness, although he “was not aware of any literature that helps on the risk from a specific blow.”

[36] Seventh, on February 19, 2009, the Innocence Project was advised that the efforts to locate the autopsy photographs were unsuccessful, and “exhausted.”

[37] Finally, on December 2, 2011, as part of this application, Dr. Milroy was examined under oath. He stated that in the absence of photographs, he could not confirm the size of the bruise. But, he said, it is very difficult to say whether a bruise of the size described by Dr. Smith would or would not have rendered someone unconscious with any statistical validity. He went on to say that even if he had the missing photographs, he could not tell how likely a blow causing the particular bruise in the photographs would be to cause a decrease in consciousness, or unconsciousness. He said that he was not aware of any accurate way of determining from a photograph of a bruise that an individual blow would be more or less likely to cause unconsciousness. He was unaware of any literature that suggests that it can be assessed whether one bruise would cause unconsciousness or not. He acknowledged that his earlier suggestion that a pediatric emergency room physician be consulted was “speculative.” Finally, he acknowledged that even if he had the autopsy photographs of the bruise he would not be able to contradict Dr. Smith’s statement that the blow the deceased sustained could, but would not necessarily have rendered the victim unconscious.

Retention Policies: Then and Now

[38] On the record before me, it is impossible to know what happened to the autopsy photographs from the date that Dr. Smith testified in his examination-in-chief at trial in 1984 that “we have them available,” presumably meaning in the courtroom, until February 19, 2009, when the Crown notified the Innocence Project that the photographs could not be found. Specifically, we do not know when or why they cannot be found. In considering whether or not the loss of the photographs violates s. 7 of the Charter, it would be helpful to know what retention policies existed at the time of the loss. Since the time of the loss cannot be determined, it is useful to examine the retention policies in place throughout that 15-year period with respect to autopsy photographs.

[39] I begin by noting that in post mortem examinations for homicides and suspicious deaths, photographs are prepared by the police service that attends the post mortem examination, and copies are provided to the pathologist.

[40] As a result I will outline the pertinent policies applicable to both, beginning with the policies of the Toronto Police Service (“TPS”).

[41] Beginning in 1980, the TPS has established various schedules for retention of records in its possession. Neither the 1980 schedules, nor the successor 1992 schedules addressed the retention of autopsy photographs, which was left to the discretion of the Unit Commander of the Homicide Squad. The retention of all photographs forming a part of a homicide investigation, including autopsy photographs, is currently governed by City of Toronto By-law 689/2000, which establishes a schedule of retention periods for records of the TPS. By-law 689-2000 came into effect on October 5, 2000. While this schedule is somewhat impenetrable to me, I am assured that in homicide cases, all photographs must be retained permanently.

[42] I turn next to the pathologist. It is difficult to know with certainty what policies existed for pathologists throughout this period of time, because the Ontario Forensic Pathology Service (“OFPS”) and the office of Chief Forensic Pathologist were created only in July 2009, pursuant to the Coroners Amendment Act, S.O. 2009, c.15, which was proclaimed in force on July 27, 2009. Prior to that date, the Chief Coroner was responsible for the retention policies and practices of pathologists. The Chief Forensic Pathologist now has those responsibilities. Nonetheless, Dr. Michael Pollanen, the Chief Forensic Pathologist, has done his best to provide this history in an affidavit filed on this application.

[43] Prior to 1994, the Office of the Chief Coroner (“OCC”) had no written policy concerning the retention of records associated with Coroner’s investigations. While pathologists were required to complete a post mortem report and provide a copy of it to the investigating coroner, they were not required to submit photographs with the report. Typically, pathologists would store their files, including any photographs at the office or hospital where the post mortem examination was conducted. If the post mortem examination was conducted at the Provincial Forensic pathology Unit, the pathologist’s file would be stored there. The length of time that the photographs and other records were retained was left to the pathologist’s professional judgment.

[44] On November 7, 1994, the Chief Coroner issued Memorandum #627, requiring that all reports and materials generated by investigating coroners and pathologists for the purpose of a coroner’s investigation should be retained for ten years following the death of the individual, and longer in extraordinary cases upon consultation with the OCC. I note that OCC itself retained Coroners investigation case files for 25 years prior to January 1996, and 50 years thereafter. These files would contain the post mortem report, but not photographs.

[45] On April 17, 1998, Memorandum #627 was replaced by Memorandum #98-03, which required pathologists to retain paraffin blocks, slides and reports for 50 years in cases of homicide or criminally suspicious deaths. This memorandum apparently remained in effect until July 2009.

[46] The OFFPS created the Ontario Pathology Service Practice Manual for Pathologists in October 2009. The Manual includes a code of ethics, practice guidelines for post mortem examinations, a system of peer review and a pathologist register protocol.

[47] Section 2.4 of the Manual requires that all external evidence of injury be photographed at post mortem examinations, as well as specified uninjured areas of the body. Section 1.4 of the Manual requires that photographs derived from a pathologist’s examination must be provided to relevant parties in a death investigation or court proceeding. Finally, while section 1.23 requires that pathologists’ reports, notes and diagrams be retained indefinitely in homicide and suspicious death cases, there is no specific retention policy for photographs. Such a policy is under development.

[48] To summarize, from 1984 to 2000 there was no retention policy in place in the TPS. Since 2000, autopsy photographs in homicide cases must be permanently retained. With respect to copies of homicide photographs provided to a pathologist by the police, there has never been a retention policy in place.

[49] Given the age of this case, it is most likely that the autopsy photographs were lost or destroyed prior to 2000, when no pertinent retention policy was in place.

ANALYSIS

[50] While many issues were raised in this application, I will begin by considering whether the applicant has established that her rights under s. 7 of the Charter were infringed when the province lost or destroyed certain autopsy photographs. As I have already noted, a finding of a Charter breach is a prerequisite to the Charter remedy sought pursuant to s. 24(1) of the Charter.

WAS THERE A CHARTER BREACH?

[51] This discussion must begin with a consideration of the disclosure and preservation obligations on the Crown developed in the Charter caselaw to date. The applicant divides these obligations into two categories: pre-conviction and post-conviction. In my view, the second of these categories conflates two distinct periods that must be examined separately. I would instead divide these obligations into three periods: the period before conviction; the period after conviction but before appeals are exhausted; and the period after appeals are exhausted.

The Duty to Disclose Relevant Information Before Conviction

[52] In 1991, seven years after the applicant was convicted, and four years after her application for leave to appeal to the Supreme Court of Canada was dismissed, the Supreme Court addressed the issue of disclosure. It concluded, in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, that when a person is charged with an indictable offence, the Crown has a duty to disclose all relevant information in its possession in a timely fashion, including what the Crown intends to introduce into evidence, and what it does not. This duty applies whether or not the information is inculpatory or exculpatory.

[53] Relevant information refers to any information that there is a reasonable possibility may assist the accused in any aspect of the exercise of the right to make full answer and defence: R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, 96 C.C.C. (3d) 225 at para. 30 and R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, 122 C.C.C. (3d) 1 at paras. 20-21.

[54] This obligation to disclose is a continuing one, and must be completed when additional information is received. A breach of the obligation to disclose impedes the right to make full answer and defence, one of the principles of fundamental justice protected by s. 7 of the Charter. There is no requirement for an accused to demonstrate prejudice. The extent of the prejudice suffered by the accused is not a consideration to be addressed when determining if s. 7 has been breached. It is considered only at the remedy stage of the Charter analysis (see R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, S.C.J. No. 12.)

The Duty to Preserve Relevant Evidence Before Conviction

[55] The Supreme Court first recognized that the Crown's duty to disclose all relevant evidence in its possession gives rise to an obligation to preserve relevant evidence in R. v. Egger, 1993 98 (SCC), [1993] 2 S.C.R. 451, S.C.J. No. 66. The Court addressed the issue more fully in 1997 in R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, S.C.J. No. 30. In La, the Court held that when the prosecution has lost evidence that should have been disclosed the Crown has a duty to explain what happened to it. If the explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. In determining whether or not the Crown’s explanation is satisfactory, the main consideration will be whether or not reasonable steps were taken to preserve it. In addition, the relevance that the evidence was perceived to have at the time must be considered, since the police cannot be expected to preserve everything on the chance that it will be relevant in the future. The greater the relevance of the evidence, the greater the degree of care that will be expected. Lost evidence will only amount to a breach of s. 7 if there is no satisfactory explanation for the loss of evidence, or if actual prejudice to the right to make full answer and defence as a result of the loss is shown.

The Duty to Disclose Relevant Information Before Appeals Are Exhausted

[56] In R. v. Trotta (2004), 2004 60014 (ON CA), [2004] O.J. No. 2439, 190 C.C.C. (3d) 199 (Ont. C.A.), Doherty J.A. stated, at paragraph 22, that he could “see no reason why the Crown's disclosure obligations should not continue through the appellate process. The protection of the innocent is as important on appeal as it is prior to conviction.”

[57] Nonetheless, Doherty J.A. recognized at paragraph 23 of the Court’s judgment that although the nature of the Crown’s disclosure obligation remains unchanged on appeal, its boundaries can no longer be described by reference to the presumption of innocence or the right to make full answer and defence. Instead, the Crown’s disclosure obligation on appeal must recognize and give full value to an accused's broad rights of appeal and the rationale underlying those rights. It must extend to any information in the possession of the Crown that there is a reasonable possibility may assist the accused in the prosecution of his or her appeal. An appeal from this judgment to the Supreme Court of Canada was allowed (2007 SCC 49, [2007] S.C.J. No. 49, 225 C.C.C. (3d) 97), but on the basis of fresh evidence, and without reference to the post-conviction disclosure issue.

The Duty to Preserve Relevant Evidence Before Appeals Are Exhausted

[58] There is scant consideration of this issue in the cases. It seems apparent to me, however, that there is an obligation to preserve the trial exhibits that are not dangerous or perishable pending appeal if these are in the hands of the Crown. Similarly, the Crown is obliged to preserve relevant information in its possession that is not dangerous or perishable pending appeal. This includes information that was in the possession of the Crown before trial, and information that comes into the possession of the Crown after conviction. I note that if this is a constitutional right, it might be lost if the person convicted did not commence an appeal until sometime after the appeal period had expired (see R. v. Tammie, 2004 BCCA 18, [2004] B.C.J. No. 40).

The Duty to Disclose Relevant Information After Appeals Are Exhausted

[59] The Crown’s duty to disclose relevant information to the accused before trial flows from the presumption of innocence, and the right of an accused to make full answer and defence, which is a principle of fundamental justice protected by s. 7 of the Charter. The Crown’s duty to disclose relevant information to an appellant pending appeal no longer relates to the presumption of innocence, but flows from an appellant’s rights of appeal and the rationale underlying those rights. Once appellate rights are exhausted, disclosure can no longer advance the pursuit either of full answer and defence, or of any right of appeal. But that can hardly be the end of the matter.

[60] At the core of the Crown’s duty to make disclosure is the fundamental principle that the innocent must not be convicted or punished. It falls squarely within the duty of Crown counsel as it is understood in Canada that evidence tending to exonerate a person convicted of a crime that comes to the attention of the Crown even after all appellate rights have been exhausted must be disclosed. This flows from the well-accepted principle that “prosecuting counsel should regard themselves rather as ministers of justice assisting in its administration than as advocates.” (See the judgment of Locke J. in Boucher v. the King, 1954 3 (SCC), [1955] S.C.R. 16.) I have no doubt that this is a constitutional principle, although I need not decide that issue in this case. But if I am right that such a duty exists, it is nonetheless much narrower than the duty to disclose before trial, or even during the appellate process. It is focused on true innocence, not on building a defence.

The Duty to Preserve Relevant Evidence After Appeals Are Exhausted

[61] At last, I come to the basis of the Charter violation alleged by the applicant: an asserted duty on the Crown to preserve evidence after all appeals are exhausted. It follows from what I have said under the last heading that in my view, the Crown has an obligation to preserve evidence that comes into its possession after appellate rights are exhausted that tends to exonerate a person convicted of a crime, and that this may well be a constitutional principle. But that is not what is in issue here. What the applicant asserts is a preservation obligation in relation to Stinchcombe material – relevant evidence that was in the possession of the Crown before conviction that was, or should have been disclosed.

[62] This claim has a broad sweep – it includes many types of evidence that logically call for different treatment. At one extreme is human tissue that is often determinative of the issue of guilt or innocence. The case for preservation of such evidence is very high. Human tissue may yield new information as science progresses over time. Sometimes it yields information that is at odds with what it was said to yield at trial.

[63] But the applicant’s claim also includes material in the possession of the Crown that appears to have no more than marginal relevance. Often the Crown has no reason even to consider the relevance of such material absent a request by the accused for disclosure before trial. Not infrequently, such evidence is the fruit of a separate investigation. To make the failure to preserve such evidence a violation of the Charter as the applicant would have it serves only to trivialize the right she advances.

[64] Another category of evidence that would be caught by the applicant’s claim is documentary evidence. In some fraud and Competition Act, R.S.C. 1985, c. C-34, cases the volume of seized documents numbers in the hundreds of thousands of documents or even more. Frequently, the documents are not preserved even before trial. They are often scanned electronically and returned before trial. To imagine a constitutional obligation on the Crown to preserve the originals in perpetuity is an absurdity. Even to require the preservation of the scanned documents has little point when the documents belong to and have been returned to the accused, and where the accused has been provided with the same electronic version of the documents as the Crown has retained. Whatever might be said for a right of disclosure of evidence, it is hard to justify a right to repeated disclosure.

[65] There is scant caselaw relating to this issue. I will refer to the few cases I am aware of shortly. Whatever constitutional rights may exist to have the Crown preserve Stinchcombe material after appellate rights have been exhausted must be developed in a nuanced and incremental manner. It requires consideration of the differing types of material covered by Stinchcombe, what subsequent use there may be for such material, questions of dangerousness and perishability, and yes, even questions of feasibility and cost. The narrow circumstances of this case hardly present the occasion to examine these difficult questions.

Has the Applicant Established that her Rights under s. 7 of the Charter Were Infringed When the Crown Lost or Destroyed Certain Autopsy Photographs?

[66] I am aware that it appears to be tautological to attempt to determine whether or not there was a Charter violation in this case based on the failure to preserve evidence after the applicant’s appellate rights were exhausted without first determining whether or not the Charter imposes an obligation on the Crown to preserve Stinchcombe material at that point in time. But as will be seen, in this case, the task is possible.

[67] The applicant has attempted to demonstrate that her rights under s. 7 of the Charter were infringed when Ontario lost or destroyed autopsy photographs showing the size and location of a bruise on the victim’s scalp. It is important to begin by recounting what is known about these photographs.

[68] The first chronological reference to the photographs in the record is at trial, in 1984, when Dr. Smith volunteered, while testifying, that he had photographs of the bruise that might be better than his description. Counsel for the accused said nothing. He expressed no surprise about the existence of the photographs. He did not ask to see them. From that moment in time there followed a twenty-four year silence. Only in 2008 did counsel for the applicant ask for production of the photographs.

[69] The only reasonable assumption that I can draw from the record is that the autopsy photographs of the bruise on the victim’s scalp had been disclosed to the applicant before trial, and that there was nothing about the images of the scalp bruise in them that differed in any way from Dr. Smith’s description of them at trial. It is true that this trial took place approximately seven years before the decision in the Supreme Court of Canada in Stinchcombe. But pre-trail disclosure of the results of the autopsy in homicide cases, including autopsy photographs, was not a novelty in Ontario even in 1982, whether accomplished by the voluntary act of Crown counsel, or through cross-examination at the preliminary inquiry. The non-reaction of counsel for the applicant when the photographs were mentioned could only mean that he was not taken by surprise by the reference to photographs, and despite the apparent importance of the issue, he saw no advantage in having them produced.

[70] As a result, what is complained of here is the failure to preserve autopsy photographs that had been disclosed to the accused before trial, or that in any event were available to the applicant to examine at trial, which the applicant expressed no interest in at trial or for the next twenty-four years, and which apparently were of little or no significance. What is more, there is no evidence of where the photographs were during those twenty-four years, or when they were lost or destroyed. The record does not even disclose whether the photographs were in the possession of the pathologist at the time of the trial, or in the possession of the police. In light of the evidence that in post mortem examinations for homicides and suspicious deaths, photographs are prepared by the police service that attends the post mortem examination, and copies are provided to the pathologist, it is likely that the photographs were in police custody at the trial, and remained in police custody until they were lost or destroyed.

[71] In all of these circumstances, assuming that there is some sort of duty on the Crown to preserve Stinchcombe material after appellate rights are exhausted, that duty was not breached here. Whatever the contours of such a right might be if it exists, the loss or destruction of the autopsy photographs of the bruise on the scalp of the victim in this case falls short. What caselaw there is on the issue supports this conclusion.

[72] I begin with R. v. Tammie, 2004 BCCA 18, [2004] B.C.J. No. 40. In that case, on March 1, 1990, the accused was convicted of murder in the course of a sexual assault. On May 26, 1999, more than nine years later, the British Columbia Court of Appeal granted him an extension to file his notice of appeal. On October 19, 1999, the Court of Appeal ordered a new trial. Prior to his new trial, the accused sought disclosure of hair samples seized from the bedclothes in the room where the victim was murdered. He also sought disclosure of certain vaginal swabs that had not been used in evidence at the first trial, and had been destroyed a year and a half after the appeal period from the first trial had expired. The trial judge concluded that the loss or destruction of these exhibits did not give rise to either an abuse of process or to a breach of the accused's s. 7 Charter rights. The loss or destruction had been adequately explained, the loss and/or destruction was not due to unacceptable negligence on the part of the Crown, police or the court, and the accused was not prejudiced.

[73] On further appeal ([2004] B.C.J. No. 40, 2004 BCCA 18), the Court held, at paragraph 33:

The hair samples and slides were lost or destroyed some time after the appeal period from the first conviction had expired, apparently through inadvertence. The trial judge gave considered reasons for dismissing the stay application and in my view there are no grounds on which this Court could disturb her conclusion.

[74] In R. v. Kociuk, 2009 MBQB 154, 241 Man.R. (2d) 155, the accused was tried in 2010 for a first degree murder committed in 1984. At trial, his counsel sought disclosure of 1984 police surveillance notes created in an investigation of the accused's involvement in a 1984 robbery. The accused was convicted of that robbery charge, and served his sentence. At the time the surveillance notes were made, the accused was not a suspect in the murder and there was no reason for the police to have kept those notes subsequent to the accused's conviction and completed sentence. Accordingly, the trial judge concluded that at the time, the police would not have “perceived a duty to either disclose or preserve the notes in question.” (Kociuk at para. 36.)

[75] On appeal (2011 MBCA 85, 278 C.C.C. (3d) 1), the Court stated, at paragraph 40:

The trial judge was satisfied with the explanation offered for the missing surveillance notes. Those missing notes were not taken during the course of investigating the accused for this murder and it was understandable and reasonable, once he was found not to be a suspect in the murder, that the surveillance notes would follow the robbery file, not the murder file. The trial judge accepted that there was no longer any reason for the police to still have those notes 20 years later. Again, I see no error in the trial judge's ruling.

[76] The Court also accepted a finding by the trial judge that the accused had failed to establish that any prejudice flowed from the loss of the notes.

[77] On further appeal to the Supreme Court of Canada (2012 SCC 15, [2012] S.C.J. No. 15, 281 C.C.C. (3d) 1), the Court dismissed the appeal for the reasons of the majority of the Court of Appeal of Manitoba.

[78] To like effect, see R. v. M.B., 2009 ONCJ 446, [2009] O.J. No. 3960.

[79] Admittedly, these judgments are not directly on point. In each of them, the issue concerning lost or destroyed evidence from an earlier proceeding that is relevant in a later proceeding, and the court applied the approach established in La. Here there is no subsequent proceeding. The issue arises simply in the context of a person convicted of a crime, whose appellate rights are exhausted, and who wishes to establish her innocence. As a result, she says that the simple loss or destruction of relevant evidence violates s. 7 of the Charter, whether or not there is a satisfactory explanation, and whether or not there is prejudice. I find it impossible to adopt this approach.

[80] The proper approach where an accused claims that the failure to preserve material in the possession of the Crown results in a breach of a Charter right, as explained in La, and the significance of the Crown’s explanation and of prejudice in the analysis, are neatly summarized in R. v. F.C.B., 2000 NSCA 35, [2000] N.S.J. No. 53 at paragraph 10:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.

(3) 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.

(4) 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.

(5) 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 that should be taken to preserve it.

(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) 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.

(9) 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 a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

[81] Assuming that the Crown’s obligation to preserve evidence after the exhaustion of appellate remedies, I can see no principled basis to place the bar for a Charter violation for a breach of this obligation lower when the applicant faces no on-going criminal jeopardy than when the applicant does face on-going jeopardy. If there is no absolute right to preservation before trial, there can hardly be an absolute right to preservation after appellate remedies have been exhausted. Such a lowering of the bar would assist the applicant in this application, but it simply lacks any logical foundation. In my view, whatever obligation to preserve evidence survives the exhaustion of appellate remedies, there is no violation of the Charter where the loss or destruction is satisfactorily explained, and no prejudice is occasioned to the applicant.

[82] In this case, the application fails on both prongs.

[83] With respect to an adequate explanation, it is not surprising that after 24 years of silence and disinterest on the part of the applicant, the Crown was unable to identify the date of or reason for the loss or destruction of autopsy photographs that were relevant in a trial that took place seven years before Stinchcombe and nine years before Egger. Once leave to appeal to the Supreme Court of Canada was denied on December 7, 1987, there was no reason for the police to have thought that they needed to keep track of or preserve the autopsy photographs. No policy existed at that time to make them think otherwise. And after so many years of silence, it is not surprising that no police officer today can fill in the blanks. While this might not pass muster for an adequate explanation for the loss or destruction of evidence today, it would be wrong to impose today’s expectations on conduct that took place 25 years ago, prior to any of the Charter jurisprudence on disclosure and preservation, and at a time when no policy existed that required more.

[84] As for prejudice, the applicant has shown none. On the contrary, it seems plain that the autopsy photographs could not assist the applicant in demonstrating her innocence. It must be remembered, first of all, that Dr. Smith said no more than that the blow that caused this injury to the scalp of the victim was sustained prior to strangulation, that it was significant, and while it would not necessarily have rendered the deceased unconscious, it could have. This is but one of two explanations in the evidence at trial for the applicant to have had the physical ability to strangle the deceased. Dr. Milroy, whose evidence is relied on by the applicant on this issue, testified that even if he had the autopsy photographs of the bruise he would not be able to contradict Dr. Smith’s statement that the blow the deceased sustained could, but would not necessarily have rendered the victim unconscious.

[85] As a result, I conclude that there was no violation of any Charter right that the applicant may have had as a result of the loss or destruction of autopsy photographs, and she is entitled to no remedy under s. 24 of the Charter.

OTHER ISSUES

[86] In argument, the Attorney General argued that the applicant’s request for a declaration was not justiciable, not only because her s. 7 claim is not made out on the facts, but also because it is moot, and because it requires a retroactive application of Stinchcombe. The Attorney General also argued that even if there was a violation of s. 7, I should not grant the requested declaration because the retention policies in place today are not before the Court for consideration, and the applicant has no standing to challenge them. In view of my disposition of the first issue, I need not consider these arguments. But I will say one thing.

[87] In my view, even if there was a Charter violation in this case, the declaration sought by the applicant is not a remedy that I would consider to be appropriate and just in the circumstances. I agree with the Attorney General that the declaration sought by the applicant is not an attractive solution to the problem of post-appeal preservation of evidence. Unlike preservation of Stinchcombe material before trial, preservation after appellate rights are exhausted does not give rise to a legal principle that can be identified with sufficient precision to yield a simple a standard. It would be preferable for there to be a carefully developed legislated scheme, which could then be reviewed by the Courts for Charter compliance.

[88] But if there is an obligation on the Crown arising from the Charter to preserve Stinchcombe material after appellate rights have been exhausted, and if the task of developing the response to this issue must fall to the Courts, the response should be developed in a nuanced and incremental manner. Unlike preservation of relevant material before trial, it requires consideration of the differing types of material covered by Stinchcombe, what subsequent use there may be for such material, questions of dangerousness and perishability, and questions of feasibility and cost. In any event, the narrow circumstances of this case do not present the occasion to examine these difficult questions.

[89] The most that would be justified here, had I found a breach of the Charter, would be a declaration in relation to the preservation of autopsy photographs in homicide cases. But given that a permanent retention rule is in place in Toronto for autopsy photographs in homicide cases, such a declaration would be neither necessary nor justified.

DISPOSITION

[90] The application is dismissed. Counsel for the Attorney General advised me that the respondent was not requesting costs, and none are ordered.

M. Dambrot J.

RELEASED: September 18, 2012