ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
(Responding Party)
– and –
P.C. (a young person)
Moving Party (Defendant)
Edward F. Hung and John R. Mann III, for the Moving Party (Defendant)
Susan Ientile and Kevin Stewart, for the Crown
HEARD: September 10 and 11, 2012
MOLLOY J.:
REASONS FOR DECISION
(Pre-Trial Applications and Evidence Rulings)
A. INTRODUCTION
1P.C. is a young person charged with second degree murder in connection with the death of a 20-year-old man named Jin Tao Zhu (“Jin Tao”) on February 14 and 15, 2010. Jin Tao was severely beaten in a park at Ashbridge’s Bay in Toronto over a period of about two hours. The ringleader in the assault was Xiao Ming Cheng (“Allan”), who apparently considered Jin Tao to be a competitor for a girl that he was interested in for himself. Four other young men, of whom P.C. was one, were present at the beating and participated in the assault to varying degrees. P.C. was 15 years old at the time; all of the others were between 18 and 20 years old. After the beating, Jin Tao asked to go home but Allan refused, saying that as soon as Jin Tao’s mother saw him, she would call the police. Jin Tao was therefore taken to Allan’s home. Several of the young men, including P.C., helped Jin Tao into the house as he was too weakened from the beating to walk unassisted. They put him to bed in a second floor bedroom and left him there with Allan. Jin Tao died during the night. According to the pathologist who conducted the post-mortem, Jin Tao died as a result of internal injuries and hemorrhaging caused by blunt force trauma.
2There were a number of pre-trial applications, and a related evidentiary ruling early in the trial. One of the applications sought a ruling on whether the defence of duress can ever be available in a case of homicide. I held that, as a question of law, the defence was available. My written reasons for that decision were released on September 24, 2012.1
3The issues raised on the pre-trial applications include:
whether P.C.’s right to silence was violated as a result of his compelled testimony at the preliminary inquiry for the other accused, rendering the trial unfair;
the admissibility of photographs of P.C.’s hands, taken by the police after his arrest on February 16, 2010; and
the admissibility of forensic evidence as to blood found on the hoodie worn by P.C. at the time Jin Tao was beaten.
4I refused the application for a stay because I found no breach of P.C.’s right to silence. I ruled the photographs of the hands admissible, but excluded the forensic evidence about the blood due to late disclosure of the report. My reasons for these decisions are set out below.
B. STAY OF PROCEEDINGS – RIGHT TO SILENCE
5Apart from P.C., all of the young men who were present at the beating of Jin Tao were adults. They were charged with first degree murder. Because P.C. was under 18 at the time of the offence, he could not be tried together with the other accused who were adults.2 One of the adult accused, who had been more minimally involved than the others, pleaded guilty to aggravated assault. The preliminary hearing for the remaining three adult accused proceeded in the spring of 2011. The Crown issued a subpoena to compel P.C. to testify at that preliminary hearing.
6Counsel for P.C. brought an application in this Court to quash the subpoena. Code J. dismissed that application, for reasons issued on March 23, 2011.3 Essentially, Code J. held that: (1) it was reasonable for the Crown to seek additional evidence for the preliminary hearing, beyond the statements given by the accused to the police; (2) P.C. had relevant and important evidence to provide; (3) the Crown gave an undertaking to examine P.C. only for the purpose of their case against the adult accused and not for the purpose of discovering P.C.’s defences or discovering additional evidence against P.C.; and (4) P.C.’s evidence at the preliminary would be completely protected against subsequent use by s. 13 of the Charter and from derivative use by s. 7 of the Charter. Code J. also noted that the Crown already knew the general nature of P.C.’s defence, being an absence of intent and the defence of duress based on threats by Allan.
7P.C. filed a notice of appeal from the decision of Code J. and sought a stay of his decision until the appeal could be heard. On March 24, 2011, Rosenberg J.A. dismissed the motion for a stay. In a hand-written endorsement, Rosenberg J.A. ruled that: (1) the defence had failed to establish a serious issue to be tried because Code J. correctly held that the Crown had shown a legitimate public purpose for calling P.C. as a witness; (2) there was no irreparable harm because of the protections under the Charter, the Youth Criminal Justice Act, s. 5 of the Canada Evidence Act, the undertaking given by the Crown, and the supervision of the preliminary hearing judge; and (3) the balance of convenience did not favour P.C., particularly in light of the public interest in an expeditious proceeding against the adult accused and the rights of the adult accused to disclosure of the extent to which the evidence of P.C. might incriminate them. Rosenberg J.A. refused to stay the decision of Code J., with the result that P.C. was called as a witness at the preliminary hearing of the adult accused in March 2011. Subsequently, the appeal from the Order of Code J. was abandoned as being moot.
8At the outset of the trial before me, defence counsel sought a stay of these proceedings on the basis that P.C.’s right to silence had been violated by virtue of his compelled testimony at the preliminary hearing and he can no longer have a fair trial.
9Some of the arguments advanced by the defence on this motion duplicate the arguments they already made before Code J. and Rosenberg J.A. without success. There was no infringement of the right to a fair trial merely because P.C. was compelled to testify at the preliminary hearing. The issue before me is not whether the subpoena should have been issued; that has been decided. Rather, the question is whether there was anything arising at the preliminary hearing that now makes this trial unfair. In my view, there was not.
10The defence argues that the decision made by Code J. was predicated on the Crown’s undertaking that “they will only examine P.C. for the purpose of discovering and building their case against the three adults and not for the purpose of discovering P.C.’s defences or discovering additional evidence against P.C.”4 The defence further argues that the Crown breached that undertaking in its questioning of P.C. at the preliminary hearing, that the “horse is now out of the barn,” and that only a stay of the charge will remedy the infringement of P.C.’s rights.
11The Crown did not breach its undertaking. The undertaking was not to examine P.C. “for the purpose” of discovering his defences or additional evidence against him. Crown counsel was scrupulous in keeping her questioning of P.C. within that parameter. Nothing she did was for any purpose other than to elicit evidence against the adult accused.
12In the course of argument before me, defence counsel accepted that the Crown did not deliberately breach the undertaking, but argued that the Crown she was not careful enough in her examination of P.C. with the result that she was able to obtain information the Crown was not entitled to have. Again, I disagree. P.C. was represented by the same counsel throughout. His lawyers were well aware that he would be testifying at the preliminary hearing and had ample opportunity to prepare his evidence and caution him about answering only the question he was asked. Further, P.C.’s counsel was given standing at the preliminary hearing and had the opportunity to object to any questions it considered unclear or improper. This was a task best left to P.C.’s counsel, and was not the responsibility of the Crown.
13One of the examples given by the defence of this “breach” of undertaking by the Crown involved the following exchange:
Q.(by Crown). Okay. What happened next?
A. Then, after I heard what Xiao Ming said to me, I was afraid so I used my palm to hit Jin Tao at the back of his hand.
Q. Okay, I don’t want to ask about what you did. I’m only asking you about what Xioa Ming Chen did, Zhao Hui Chen and Peng Ren did.
14In my view, this is not an example of the Crown failing to take proper care in relation to its undertaking. On the contrary, it is an example of the Crown intervening to prevent the witness from volunteering information about what he himself did, and asking him to restrict his evidence to what the other accused did. She was doing so to protect the rights of the witness. No objection was made by defence counsel at the time. However, after the morning recess, defence counsel raised the issue with the preliminary hearing judge and took the position that incriminating evidence was elicited from P.C. by the Crown. The presiding judge agreed with the Crown’s submission that she had not “elicited” evidence, but rather that the witness had volunteered evidence and she had stopped him from saying anything further. He reminded defence counsel that the witness was protected from any use of this evidence, or derivative evidence, under the Evidence Act and the Charter. In addition, of his own volition, the preliminary hearing judge extended the publication ban in respect of the preliminary hearing until the conclusion of the proceedings against P.C., not merely until the conclusion of the charges against the other accused.
15I do not accept the argument that there was anything improper in what the Crown did. This was the Crown’s witness and she was required to ask non-leading questions. To the extent anything of an incriminating nature was revealed by P.C., it was volunteered by him. Further, given the nature of P.C.’s duress defence, I do not see this evidence as incriminating, but rather exculpatory. In any event, it cannot be used by the Crown against P.C. and the Crown has not attempted to do so.
16The defence further argued that the Crown obtained information about P.C.’s involvement as a result of the cross-examination by some of the defence counsel for the adult accused. I agree that their questioning was not as restricted as that of the Crown. However, there was nothing revealed in the course of that questioning that was not already known to the Crown. The nature of the defence was well-known right from the outset as a result of a statement given by P.C.’s sister and also from testimony at his bail hearing. The Crown was also aware that P.C. would be arguing that he lacked the requisite level of intent. Again, there was nothing at the preliminary hearing that added or detracted from that. The Crown learned nothing new that would be of any assistance in preparing the case against P.C., indeed, nothing new at all. Even if new information had been revealed by P.C., the Crown was not permitted to use it in any way, and did not do so.
17A stay of proceedings to remedy a breach of an accused’s rights or prevent unfairness is only warranted in the clearest of cases. In this case, there was no misconduct by the Crown and no breach of its undertaking. The Crown received no information that assisted in the preparation of the case against P.C. and obtained no advantage as a result of his testimony. Further, there has been no unfairness to P.C. as a result of his testimony at the preliminary hearing. There has been no injury and no wrong, and hence no right to any remedy, much less a stay of proceedings.
C. PHOTOGRAPHS OF P.C.’S HANDS
18P.C. turned himself into the police on the night of February 15, 2010 at which point he was taken into custody. Photographs were taken of the back sides of both hands, showing the knuckles. The Crown sought to tender in evidence one photograph of P.C.’s right hand, and two photographs of his left hand, one of which provided a closer view of the knuckles themselves.
19The Crown alleged that P.C. had played an active role in beating Jin Tao Zhu, notwithstanding the evidence of at least some of the other participants that he had only slapped (or pretended to slap) the victim. The Crown argued that the photographs provided some evidence to support the theory of more active involvement, because the knuckles on both P.C.’s hands, and in particular on his left hand, were swollen, bruised and bloodied, consistent with injuries caused by punching with fists.
20P.C.’s father and sister had both testified that the injuries on P.C.’s hands were caused by his work at a Chinese grocery store, which involved lifting heavy boxes in cold weather. The defence argued that the photographs had little or no probative value, particularly in the absence of expert evidence to interpret them. Further, defence counsel argued that the photographs were prejudicial to the accused because they would sidetrack the jury from the central issue in the trial (which he characterized as whether the presence of the accused at the beating aided the murder) and because the accused would be forced to testify in order to rebut the evidence of the knuckles.
21I recognize that I have a discretion to exclude relevant evidence where its prejudicial effect would outweigh its probative value. I accept the defence argument that this power is to be interpreted more expansively than had previously been suggested in cases such as R. v. Wray,5 and that the more modern approach is a simple balancing of the prejudicial impact as compared to the probative weight, as held by the Supreme Court in R. v. Seaboyer.6
22In Seaboyer, the Supreme Court of Canada referred with approval to the following excerpt from McCormick's Handbook of the Law of Evidence 7:
Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible. But relevance is not always enough. There may remain the question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value. In order of their importance, they are these. First, the danger that the facts offered may unduly arouse the jury's emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered and the counter proof will consume an undue amount of time. Fourth, the danger of unfair surprise to the opponent when, having no reasonable ground to anticipate this development of the proof, he would be unprepared to meet it. Often, of course, several of these dangers such as distraction and time consumption, or prejudice and surprise, emerge from a particular offer of evidence. This balancing of intangibles -- probative values against probative dangers -- is so much a matter where wise judges in particular situations may differ that a leeway of discretion is generally recognized.
23In my view, none of these factors favour excluding the evidence in this case. First, there is nothing about the photographs that would arouse emotions of prejudice, hostility or sympathy. They are simply photographs, against a plain background, showing P.C.’s knuckles. Second, I do not agree with the defence argument that the appearance of the knuckles would send the jury off on a side issue or distract them from the central issues in the case. There were two central issues in the trial: (1) the role played by P.C. in the events leading to Jin Tao Zhu’s death; and (2) the defence of duress. What P.C. actually did is not a side issue; it is a central issue to be decided by the jury. Third, the evidence would consume very little time at trial, even when the defence rebuttal evidence is included in the calculation. Fourth, the defence had known about the evidence from the very beginning, and was prepared to meet it. There was no element of surprise and no unfairness to the defence in the evidence being presented.
24I also do not agree with the defence that the photographs had no probative value. The appearance of P.C.’s hands constituted some circumstantial evidence that the jury was entitled to take into account, along with the other evidence, in deciding what role P.C. played in the events of that fateful night. As long as the jury was properly instructed on the use of circumstantial evidence, there was no danger that this evidence would be misused, or considered to be conclusive as to what role P.C. played in the assault.
25Evidence is not considered prejudicial in this sense merely because it implicates the accused in a way that causes him to feel the need for an explanation. If the evidence is relevant and presents no unfairness to the accused or to the trial, it is not prejudicial. In any event, the defence had other witnesses who could offer the alternative explanation without having to call the accused to testify. Further, since the accused’s main defence was duress, which involves a subjective component, it is hard to see how he could avoid testifying in any event.
26I do not agree that a jury would need expert evidence to be able to interpret the injury on the knuckles before any inference could be drawn. This is something within the normal experience of average people.
27The defence sought to prevent Dr. Rose, the pathologist, from testifying as to her conclusions from her post mortem examination of the hands of Jin Tao Zhu. Based on her report and prior testimony, it was expected that she would testify that there were no marks on his hands consistent with his having defended himself during the course of the beating. She had also testified previously about what she would expect to see on knuckles that had been involved in a fight. The defence argued that this evidence would be unfairly prejudicial to P.C. because the doctor’s description of what knuckles would look like after a fight might be used by the jury to infer that P.C.’s knuckles matched such a description.
28The evidence of the pathologist that there were no defensive type wounds on Jin Tao’s body was highly relevant to the theory of the Crown’s case, which is that this group of young men ganged up on their victim and gave him no opportunity to defend himself. That was part of the Crown’s argument that the mere presence of these young men at the beating assisted Allan’s murder by making it impossible for him to escape or defence himself. I ruled that this was important and relevant evidence for the Crown and was admissible.
29I did not accept the defence position that there is any real danger that the jury would take the evidence of the pathologist about the nature of the injuries on the dead victim’s hands and apply that to the appearance of P.C.’s hands. In my view, any such danger could be averted by an instruction not to do that, which I inserted into that portion of the charge dealing with how the jury could use expert evidence. I therefore, included the following instruction in my charge;
The opinion of an expert is limited to the matter upon which she is asked to express an opinion. You must not extrapolate from Dr. Rose’s opinion to reach a conclusion about something that is not part of her evidence. In particular, her evidence with respect to the appearance of Jin Tao Zhu’s hands is restricted only to his hands as those were the only hands she examined.
30In my view, the evidence of the appearance of P.C.’s hands is relevant. I see no prejudice to the defence that could not be solved by a proper jury instruction. Accordingly, I ruled the evidence admissible.
D. FORENSIC EXPERT EVIDENCE ON BLOOD
31At the time of P.C.’s arrest on February 16, 2010, police seized the hooded sweatshirt he had been wearing on the night of February 14/15. The police sent the sweatshirt to the Centre of Forensic Science (“CFS”), but did not request detailed testing of the stains on it until much later.
32In late June or early July, 2012, P.C.’s lawyers were given notice that a stain on the hood of the sweatshirt was in fact blood. This had been determined by a CFS report dated June 18, 2010. At that time, nothing was known about the source of that blood, and P.C.’s lawyers were not told that any further testing of the sweatshirt was contemplated, although they were advised that the Crown was planning to call evidence with respect to the blood on the sweatshirt.
33In July, 2012, the officer in charge of the case requested CFS to conduct DNA testing on P.C.’s sweatshirt. CFS delivered a report dated September 10, 2012. According to that report, the blood on the hood of the sweatshirt is definitely not from the victim Jin Tao Zhu. The report also disclosed that blood stains were found in three other locations on the sweatshirt: the lower front left panel; the lower front left sleeve; and the upper front left sleeve. The amount of DNA on the front panel was not sufficient for analysis. However, DNA was extracted from both blood stains on the left sleeve. The report found that Jin Tao could not be excluded as the donor of that blood and that the probability that a randomly selected individual unrelated to Jin Tao would coincidentally share the observed DNA profile was estimated to be 1 in 24 trillion.
34A few days before trial the Crown advised defence counsel orally that this report would be forthcoming. However, the report itself was not served on the defence until September 10, 2012, the day the trial was to start.
35Section 657.3(3) of the Criminal Code requires a party intending to call expert evidence to give at least 30 days notice to the other side. Further, the same provision requires the Crown to provide either the expert’s report or a summary of his or her opinion to the defence within a “reasonable period before trial.” The Crown was clearly not in compliance with this provision.
36The Code contemplates that the remedy for non-compliance with this provision will be either ordering the production of the report or relevant particulars and/or granting an adjournment to allow the other side to prepare for cross-examination of the expert.
37In this case, the defence did not want an adjournment. P.C. was 15 years old at the time of the incident giving rise to the charges. He is now 18. At this point, any adjournment of the trial would result in months of further delay, perhaps even up to a year. The Youth Criminal Justice Act stipulates certain overarching principles that must inform the administration of justice for young people. Those include emphasizing “enhanced procedural protections” for the young person and “the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perceptions of time.”8 Adjourning the trial because of the failure of the Crown to provide timely disclosure of its expert report is not consistent with these principles.
38The Crown fairly conceded that an adjournment would not be appropriate in all of the circumstances. However, the Crown argued that the DNA evidence should nevertheless be admitted because the defence had not been prejudiced by the late disclosure.
39I do not agree. Counsel for P.C. advised that if the CFS report had been received earlier, he would have sought permission from legal aid to at least retain an expert to advise on how to effectively cross-examine the Crown’s expert. Further, without consulting another expert, the defence could not determine if there was any basis for calling its own expert evidence on the topic. The defence pointed out that this was the procedure adopted with respect to the Crown’s expert pathologist. In my view, this constitutes actual prejudice to the defence that relates to the fairness of the trial.
40On the other hand, the DNA evidence, while relevant, is not pivotal to the Crown’s case. They have ample evidence of witnesses placing P.C. at the scene of the beating and also assisting in carrying the victim into Allan’s home after the beating. The blood of the victim on P.C.’s sweatshirt may support the Crown’s contention that he played a more active role in the beating, particularly given the location of the blood on the left sleeve of the sweatshirt just above the left knuckles which are more seriously swollen than the right. However, this is by no means determinative, as the victim’s blood could have been transferred to P.C.’s sweatshirt by mere contact when P.C. was helping him into and out of the car and up the stairs in Allan’s house.
41Thus, there is prejudice to the defence as a result of the Crown’s failure to give adequate notice of this evidence and the evidence itself is not crucial to the Crown’s case. In these circumstances, I find it would be unfair to the defence to admit the DNA evidence. The Crown conceded that it would not be proper to admit the evidence of the substance on the hood being blood in light of the expert opinion that it did not belong to the victim.
E. DNA EVIDENCE REVISITED
42I made the rulings with respect to the photographs of the hands and the DNA evidence at the beginning of the trial, prior to selection of the jury. The trial then proceeded. During the course of the defence cross-examination of the forensic services police officer who processed the crime scene where Jin Tao’s body was found, certain questions were asked that caused the Crown to re-open its request to admit the DNA evidence.
43It was common ground at trial that after the beating, Allan, P.C., and the other co-accused persons placed Jin Tao, while still alive, in a second floor bedroom in Allan’s home. It was also common ground that at some time after the early morning hours of February 15th and shortly before noon that same day, Jin Tao died in that room. One of the Crown’s witnesses was D.C. Sandra Komarnisky, a police officer with the Forensic Investigation Services. She testified to the appearance of the room and its contents when the police arrived, and introduced a number of photographs of Jin Tao’s body and various features of the room itself. Although she was not the officer who photographed P.C.’s hands at the police station the next day, by agreement of the defence, those photographs were put in through her.
44On cross-examination, defence counsel attempted to point out a number of inadequacies or gaps in the police forensic analysis of the scene. In the course of that cross-examination, defence counsel asked whether testing was done to reveal the presence or absence of blood on P.C.’s knuckles. He also asked if swabs had been taken of the knuckles and the witness agreed that there had not been any forensic analysis of swabs taken of P.C.’s hands.
45No objection was taken to this line of questioning at the time. However, after reflecting on the matter, Crown counsel asked to re-open the DNA issue. The Crown submitted that the defence had left the jury with a distorted picture of the evidence by suggesting either that the Crown had failed to do a full investigation or that the Crown was withholding evidence about P.C.’s hands that could be relevant to the case. Given that the issue of testing for blood had now been opened by the defence, the Crown sought to introduce the evidence that although P.C.’s hands had not been swabbed for blood residue, his sweatshirt was tested and revealed Jin Tao’s blood in two places on the left sleeve.
46I agree with the Crown’s submission that in these circumstances it was improper for defence counsel to cross-examine in the manner he did, seeking to create an impression with the jury that proper forensic practices by the police would have revealed the absence of the victim’s blood on P.C.’s hands. This is particularly problematic when defence counsel knew that the sleeve of P.C.’s sweatshirt, right above the swollen and injured knuckles of his left hand, was stained with the victim’s blood. It would have been a very logical answer for the police officer to have said they did not swab the hands, but had found blood on the sleeve right above the hands. Likewise, it would have been an appropriate question to explore on cross-examination, but for the fact that the evidence had been excluded at the behest of the defence.
47Three possibilities arose: (1) declaring a mistrial; (2) admitting the DNA evidence in reply; or (3) cautioning the jury about the issue. Neither party wanted a mistrial. The defence undertook not to make an issue of the failure to conduct forensic testing of the hands and suggested that the jury be instructed that this issue was not relevant and that the question should not have been asked. The Crown took the position that the damage had been done and that the only fair remedy was to admit the DNA evidence. Alternatively, the Crown requested a strongly worded caution to the jury.
48The Crown relied upon the decision of the Court of Appeal in R. v. Savojipour.9 Mr. Savojipour was charged with raping and murdering a 16-year-old boy. He admitted to police dismembering the boy’s body and hiding his body parts in various places. However, he told an elaborate tale about how others had killed the boy and he had hidden the body parts only because he was afraid of being blamed. Included in his admissions to the police was the location of where he had buried the boy’s head. The Crown intended to call evidence from a pathologist that the pattern of injuries on the boy’s head was consistent with the head of a hammer found in the accused’s apartment. However, the trial judge found that certain parts of the accused’s statement were obtained in violation of his Charter rights and, as a result, the evidence of the head was excluded. Therefore, when the pathologist testified, great care was taken to avoid any mention of the head. On cross-examination, defence counsel suggested to the pathologist that he had taken oral swabs. This presented an obvious problem for the pathologist who had been instructed not to mention any examination of the head.
49The trial judge in Savojipour accepted the argument of the Crown that there was a real danger that the jury would surmise that the Crown had concealed material evidence or wonder why the Crown had not conducted testing of the head. He further ruled that this resulted in serious prejudice to the Crown that could not be rectified by an instruction to the jury. That decision was upheld by the Court of Appeal on the basis that it restored overall trial fairness.
50The case before me is somewhat different. First, the evidence initially excluded is not as critical to the theory of the Crown’s case as was the evidence in Savojipour. Second, through no fault of its own, the defence was not prepared to address the expert DNA evidence. Therefore, admitting that evidence at this late stage would affect the fairness of the trial. Finally, given the nature of the question asked by the defence and the issues involved, I felt that a strong instruction to the jury would be sufficient to restore trial fairness.
51Accordingly, under the topic “Forensic Evidence,” I instructed the jury as follows:
I am sure you will have realized from your experience over the past couple of weeks that real-life trials are not like what you have seen in dramatized television shows. The same is true of forensic evidence, which is not anything close to as definitive or exotic as what you often see on TV shows such as CSI. Often forensic examination of an item will not reveal anything of relevance. A classic example is that a handgun may have no useable fingerprints on it, even though it was handled by a person not wearing gloves. It is certainly not the case that every time somebody enters a room or touches an item, he or she will leave behind a fingerprint, or DNA, or some other kind of trace evidence. In such cases, the absence of evidence is not proof of the opposite proposition: i.e. it is not proof that the person did not enter the room or did not handle the gun; it is merely an absence of proof that he did.
As I have already instructed you, a reasonable doubt may arise from the evidence, or the absence of evidence, but must not be based on speculation or conjecture. In this case, the Crown placed in evidence the photographs taken of P.C.’s hands at the police station somewhere between 3:00 and 5:00 am on February 16, 2010. Defence counsel cross-examined D.C. Komarnisky if the police took swabs of P.C.’s hands and sent them for forensic analysis. She replied they had not. You should completely disregard this issue. It is a question that should not have been raised. By the time P.C.’s hands were photographed, more than 24 hours had passed since he had been in contact with Jin Tao. In any event, even if there had been blood from Jin Tao on P.C.’s hands, that blood could easily have been transferred when P.C. was helping Jin Tao walk, getting him into the car, or assisting in getting him into the bedroom at Allan’s home. In these circumstances, it would not be reasonable for you to draw any inference from the failure of the police to take swabs of P.C.’s hands.
______________________
MOLLOY J.
Released: October 10, 2012
COURT FILE NO.: YC 11-10000007-0000
DATE: 20121010
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
(Responding Party)
– and –
P.C. (a young person)
Moving Party (Defendant)
REASONS FOR DECISION
(Pre-Trial Applications and Evidence Rulings)
MOLLOY J.
Released: October 10, 2012
Footnotes
- R. v. P.C., 2012 ONSC 5362
- Youth Criminal Justice Act, SC 2002 c.1
- R. v. P.C., 2011 ONSC 1824
- R. v. P.C., supra, note 3, para. 10.
- R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272
- R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577. See also R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525.
- (2nd ed., 1972) at pp. 438-440
- Youth Criminal Justice Act, supra, note 2, ss. 3(1)(b)(iii) and (iv).
- R. v. Savojipour (2006), 2006 CanLII 3458 (ON CA), 79 O.R. (3d) 418, 205 C.C.C. (3d) 533 (C.A.)
