SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 11203
DATE: 2013/07/05

RE: Her Majesty the Queen

• and -

Bryan Robinson

BEFORE: Justice J. N. Morissette

COUNSEL:
T. Zuber, for the Crown
P. Squire and Ms. Yves, for the accused

HEARD: June 17th to 20th, 2013

RULING ON APPLICATION UNDER

SECTIONS 8 AND 24(2) OF THE CHARTER

1The applicant seeks to have evidence of blood excluded as a result of a breach of section 8 of the Charter.

2The applicant was involved romantically with Theresa Wilson. She moved into his home that he rented at 734 Exeter Road in September of 2010. On November 27th, 2010, the applicant reported Theresa Wilson missing since November 24th, 2010.

3On November 25th, 2010, Danielle Thompson (Thompson), an employee of the Best Western Hotel, sitting in her car smoking a cigarette before her shift started was approached by Reneka Zager (Zager), unknown to Thompson, asking for a cigarette and crying. Thompson observed a split bottom lip and a bump on Zager’s head. Zager wanted a ride to the hospital, but Thompson brought her in the restaurant of the hotel and called the police.

4Constable Melanie Thomas (Thomas) was dispatched to the hotel. Zager told Thomas that she had been picked up by a man who took her to his house and beat her. According to Thomas, Zager appeared to be passed out in a booth of the restaurant when she arrived. She saw Zager laying down on her back. Zager’s speech was slurred. Thomas observed the split bottom lip. She asked Zager if she had been sexually assaulted but Zager did not know because she did not know if she had lost consciousness. Zager had eaten weird food (like Chinese), something she had never tasted before.

5Thomas knew that Zager had been working the streets and therefore a person at risk. She implored Zager to go to the hospital to take care of her injuries. Zager got into the cruiser with Thomas and changed her mind upon arriving at the hospital; Zager would not exit the cruiser. Thomas drove her to an intersection where Zager told her she was staying with a friend.

6Thomas went back to the hotel and got a statement from Thompson. Thompson’s statement did not describe any blood on Zager’s person and noted that Zager had been “slapped around”. Thomas did not note any blood on Zager, but for the split bottom lip which appeared to be recent.

7Thomas sent an e-mail to Seargent Bruce (Bruce), who is the officer in charge of persons at risk. She had no further contact with Zager.

8Detective Amanda Pfeffer (Pfeffer) became involved on December 13th, 2010, with respect to the missing person investigation. On January 25th, 2011, Bruce emailed Pfeffer to advise that she had spoken with Zager who was in custody on a breach and she had told Bruce that she believed that the person who assaulted her tried to kill her and, in fact, she felt like she was going to die. Pfeffer forwarded Bruce’s e-mail to Detective Krygman who was the lead detective on the Wilson disappearance investigation.

9Pfeffer attended Elgin/Middlesex Detention Centre to interview Zager on January 26th, 2011. She audiotaped part of the interview. The audio of the interview reveals an emotionally charged lady who clearly does not have either a memory of all the details of the assault or is scared to divulge too much information. She says at one point, “I feel like I’m giving away something that I shouldn’t be giving away.” And further, Zager says: “I don’t want to rat anybody out.”

10Zager told Pfeffer (and Bruce who was present) the “john” took her back to his house where he assaulted her with a baseball bat after she found his stash of drugs in a dresser drawer in the bedroom. She was so terrified that she defecated herself. She believed the bat to be aluminum.

11Zager described the home as a white house beside the hotel with lots of mattresses in the living room. The John was driving a white pickup truck. Zager also said that she lost a necklace in the struggle.

12Pfeffer further got a statement from Rosalyne Teal (Teal) a correctional worker who has had extensive involvement with Zager. Teal was told by Zager that this guy had “beaten the living hell out of her”. Teal had never seen Zager in such a state. There is no timeline when that conversation between Zager and Teal occurred.

13Pfeffer then obtained a statement from Lisa O’Brien (O’Brien) who is a female unit manager. She remembers on December 2nd, 2010, Zager very groggy and on drugs with left bruising on her cheek area.

14On January 26th, 2011, an investigating briefing of the Project Team took place with respect to the issuance of a warrant for 734 Exeter regarding the assault with a weapon of Zager.

15Pfeffer met with Detective Gradkowski (Gradkowski), who is the blood analyst specialist for the London Police Service. Pfeffer was seeking a general warrant and wanted his opinion as to whether there would likely be blood given the circumstances of the alleged assault. Pfeffer described to Gradkowski that the beating occurred by a baseball bat, unknown if loss of consciousness, severe injury to her mouth (lower lip) and was aware of a bump to the back of her head.

16Gradkowski’s opinion was that there would be blood in these circumstances. And given that the investigating team was aware that carpet had been removed from the residence, then if hypothetically, Zager lost consciousness, blood could be on the floor and even the underside of surfaces.

17With all of this information, Pfeffer completed the drafting for the search warrant application. The search warrant was granted by Justice Getliffe and the search proceeded on January 28th and 29th, 2011.

18The applicant does not take issue with the information provided to the issuing Justice to grant the general warrant. The warrant was granted pursuant to s. 487.01 of Criminal Code. The only terms and conditions imposed on the warrant by Justice Getliffe related to the type of techniques, chemical and procedures to be used in the identification and detection of human blood. There was no restriction as to where in the residence the blood could be found.

Execution of the search warrant:

19Gradkowski attended the residence at 734 Exeter Road, arriving with his identification van. Constable Dance arrived in his own vehicle as well. He was to assist Gradkowski who read the warrant and appendix knowing that the only evidence that was to be searched for was a baseball bat, a necklace and blood.

20Gradkowski testified that he had a conversation with Krygsman about the likelihood there would be a good amount of blood. Krygsman testified that he did not say she was awash with blood but rather, he did not know how much blood there would be.

21As usual, Gradkowski photographed the scene of the home prior to the start of his search. He started with the upstairs bedroom which is indicated as master bedroom on Exhibit “A”. He observed small droplets to the closet door which were blood spatter stains which, in his opinion, travelled into the air in a downward 30 to 35 degree angle pointing to the right.

22He has a program that allows him to calculate where in the vicinity the blood came from. There were 30 to 40 blood stains on door. Gradkowski conducted a presumptive test that indicates the likelihood that it is blood. Once that is positive, then he takes a swab for the forensic lab for DNA analysis.

23Gradkowski then saw no more blood on the wall where there should have been. He could smell fresh paint. He found the can of paint in the closet in the next room. It appeared to him that the walls had been painted but not the doors or doorframes.

24He continued to look for blood and found another location of blood spatter on the lower portion of the communicating door between the master bedroom and bedroom number three. That pattern was also in a downward fashion at a 90 degree angle which he explained meant that this impact occurred lower to the ground. Again, the same procedure of presumptive testing and then swabbing was performed.

25More blood was found on a portable heater located north of the bed and on the spindles of a small table (magazine style). Again, the same procedure of presumptive testing and then swabbing was performed.

26In his expert opinion, Gradkowski says that there were two impacts in the bedroom.

27He then went outside of the bedroom and located a blood swipe on the wall in the hallway between master bedroom and bedroom number two. This swipe was as if something or someone with blood on it came into contact with the wall that did not have blood. Again, the same testing occurred.

28Finally, he found blood on the west inside of the doorframe of the bathroom which pattern suggesting that the impact occurred inside the bathroom with the door open.

29Gradkowski returned to the residence the next day on January 29th, 2011 at around 3:00 p.m. and not before because Luminal testing must be done in the dark. Gradkowski had received from Krygsman information that the type of flooring in the master bedroom was new.

30Both Gradkowski and Constable Horenberg lifted floor tiling in the master bedroom. At 5:25 p.m., Gradkowski started spraying the area by the bed where he believed the impact had likely occurred with the Luminol. A reaction occurred which faded out towards the edges, which to him made sense because what likely occurred was the blood that seeped through the carpet on the under flooring, which means a transference reaction as opposed to a swipe reaction. Gradkowski did swab a portion of the floor not yet contaminated by the Luminol.

31Once the Luminol testing is done, a swab for DNA purposes is no longer available.

32Gradkowski then sprayed the bathroom floor and the side of the tub. He got a reaction both on the floor and the tub. These did appear to be cleaning swipes possibly with a cloth.

33The swabs were sent off for DNA analysis on February 3rd, 2011 and the results were received on February 24th, 2011. Much to Gradkowski’s surprise, Zager was not a corresponding match. On March 15th, 2011, the CFS determined that the blood found at 734 Exeter Rd was that of the missing person, Theresa Wilson.

Was there a breach of Section 8 of the Charter?

34The applicant challenges the execution of the General Warrant which he argues has exceeded the parameters of that warrant and at some point during the execution, the police ought to have stopped the collection of blood evidence.

35The applicant’s position is summarized as follows:

(1) The police infringed the applicant’s s. 8 Charter of Rights against unreasonable search and seizure by failing to stop the search and obtain a new judicial authorization to search for blood evidence after they discovered blood evidence that could not have been caused by the assault on Zager. Coupled with the other information known to the police, the presence of extensive blood evidence provided grounds to believe the Applicant was involved in Wilson’s disappearance and the home contained evidence relating to an offence committed against her, at the very least, an assault if not murder.

(2) Blood spatter and bloodstain evidence that is visible only through the use of specialized tools and techniques are not evidence in plain view. In addition, once the police knew the blood spatter and spatter evidence could not have resulted from the assault on Zager, they were no longer lawfully situated in the home, given their assurance to the court that as soon as this condition existed they would cease the searches and obtain new authorizations.

(3) The unconstitutionally obtained bloodstain and spatter evidence should be excluded under s. 24 (2) of the Charter as its admission would bring the long-term reputation of the administration of justice into disrepute.

36The Crown’s position is that the General Warrant issued was to collect blood and the police had two days to do so. Given that Zager’s account of the alleged assault was lacking in details, despite having been interviewed a number of times, an investigation would be warranted. On her version, this was serious assault with a baseball bat.

37The Crown further argues that this is not a plain view case, because at no time could Gradkowski say that the finding of blood was inconsistent with the assault on Zager.

Analysis:

38Gradkowski was tasked with the investigation of the alleged assault of Zager. His role as a forensic identification investigator was to determine what happened to Zager.

39Gradkowski started his investigation in the master bedroom which is consistent with the information supplied by Zager. He found suspected blood evidence. I pause here to say that the applicant, in his closing submission on this application, has changed; he no longer disputes the blood evidence found in the bedroom as properly and lawfully obtained evidence. The evidence that he seeks to be excluded is the evidence of blood found in the hallway and in the bathroom.

40For the applicant to succeed on this application, he has the onus to show that Gradkowski’s subjective belief was unreasonable.

41Once Gradkowski found evidence of an attempt to clean the suspected blood in the bedroom, his duty is to continue to investigate the scene. Gradkowski was aware of the memory issues of Zager and, therefore, there was no a huge amount of details about the assault.

42As indicated by Moldaver J. (as he then was) in R. v. Canadian Broadcasting Corporation, (1992) 1992 12752 (ON SC), O.J. 2229 (S.C.):

I recognize that this approach carries with it a degree of uncertainty. However, in my opinion, the concept of “reasonable grounds to believe” necessarily imports some measure of uncertainty. This was recognized by Lamer J. (as he then was) in the case of Dexcroteaux et al. v. Mierzwinski et al. (1982), 1982 22 (SCC), 70 C.C.C. (2d) 385 (S.C.C.), where his Lordship said at p. 410:

…After all, searches, while constituting a means of gathering evidence, are also an investigative tool. It will often be difficult to determine definitively the probative value of a particular thing before the police investigation has been completed.

43So, Gradkowski followed the blood leading into the hallway and found a transfer or swipe stain on the hallway wall. That would be consistent with someone leaving the bedroom on her way out of the residence, again consistent with Zager’s account of how she left the residence.

44Then he observed more blood on the outside of the bathroom door and continued the collection of evidence. I agree with the Crown that there was nothing to indicate that this evidence could not reasonably be believed to be relevant to the investigation into the assault of Zager.

45Gradkowski’s questions of whether Zager’s recollection was faulty or was she being untruthful are questions that could only be answered by his continued investigation. Did the assailant use the bathroom to clean items that contained some blood?

46The uncontroverted evidence is that Zager was on drugs and could have passed out on the floor. The fact that Gradkowski believed that Krygsman said there would be a good amount of blood is not inconsistent with the statement by Krygsman that he did not know how much blood there would be. In any event according to Gradkowski “a little blood goes a long way”. I do not find this evidence to be misleading as the applicant argues.

47In my view, Gradkowski’s subjective belief was reasonable. The applicant has failed to establish that this search was unreasonable.

48Given this finding, I find no breach of s. 8 of the Charter and, therefore, s. 24(2) analysis is not warranted.

Section 24(2) Analysis:

49If I am wrong on the s. 8 analysis, I would not exclude the evidence because I find that this breach is not based on misleading information as suggested by the applicant, but rather on a subjective belief that he was following the blood.

50The principles set out in R. v Grant supports the inclusion of the impugned evidence in the present case:

The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.¹

51I cannot find on the evidence of the officers involved that there was a systemic concern here. Balancing out the three factors, the police had a valid warrant to search for blood and analyse any blood evidence found at that location.

52This blood evidence is not evidence conscripted from the accused. It turns out that it is the blood of the missing person, Theresa Wilson, who also happened to live at that residence.

53The blood stain pattern evidence is critical to the prosecutor’s case. The issue in this case is the identity of the killer and the Crown’s case is based on opportunity and motive. The sole evidence of opportunity is the blood stain pattern evidence.

54It is in the public’s interest to have this case adjudicated on its merits.

55Balancing all factors, I find that the applicant has failed on a balance of probabilities to show that the exclusion of this evidence is warranted in order to protect the integrity of the administration of justice. To the contrary, the applicant has failed in its onus and the evidence would not be excluded had there been a finding of a breach of s. 8 which I did not so find.

56Accordingly, the application is dismissed.

Footnotes

1. 1R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 68 to 70