ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-02059G

DATE: 20131112

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GREGORY CHARLES and CARL RENOUS

Defendants

Jeff Pearson, Counsel for the Crown
James Miglin, Counsel for Gregory Charles
Douglas Usher, Counsel for Carl Renous

HEARD: November 8, 2013

RULING ON STAY APPLICATION

Boswell J.

Overview

[1] James Pierre was beaten with a baseball bat and repeatedly stabbed by two males who attacked him during the evening of November 15, 2010. Needless to say, the attack left him in a very fragile state of health. He was rushed to Sunnybrook Hospital where he fell into a coma that lasted, according to the best of his recollection, about two weeks.

[2] The accused are charged jointly with attempted murder in connection with the attack on Mr. Pierre. Identity is the issue for trial. The Crown’s case is complete. Mr. Charles moves for a stay of proceedings based on the prejudicial impact that he says a lost piece of evidence has had on his right to a fair trial. The lost evidence is a photograph of him shown to Mr. Pierre as part of a photo line-up process undertaken on December 6, 2010. A brief background is required to put the application into perspective.

The First Photo Line-up

[3] The first time that Gregory Charles was identified by Mr. Pierre as one of his attackers occurred on December 6, 2010 in the course of a photo line-up at Sunnybrook Hospital.

[4] Mr. Pierre was immobile. He was intubated and could not speak. He was in a great deal of pain and on medication. Nevertheless, on December 5, 2010 he communicated the name “Karl Atir” to a police officer at the hospital. The officer pointed to letters on an alphabet and Mr. Pierre somehow signalled to the officer what letters to note down. Given Mr. Pierre’s ability to communicate, at least in a limited way, coupled with concerns over his life expectancy, the officer in charge of the investigation, Detective Scott McVeigh, attended upon Mr. Pierre and instructed a second officer to show him an array of photographs.

[5] A series of photographs of young black males was shown to Mr. Pierre as part of the array. A video recording was made of the process. The video reflects a female officer holding up photographs, one at a time, at Mr. Pierre’s bedside. He signalled no to the first three photographs but yes to the fourth one shown to him. At that point, Detective McVeigh intervened to stop the process. He held up the photograph selected by Mr. Pierre and told Mr. Pierre that he had picked out an individual by the name of Gregory Charles.

The Second Photo Line-up

[6] Mr. Pierre’s principal residence is in Montreal. He asked to be moved to a hospital in Montreal and once he had sufficiently recovered he was indeed transferred. In January 2011 a second photo line-up was conducted, this time by Detective-Sergeant Mailhot of the Montreal Police. Mr. Pierre was no longer intubated and could speak. An array of photographs of young, black males was again shown to Mr. Pierre. He again identified a photograph of Gregory Charles as a person who attacked him.

The Wrong Photo

[7] The photo line-up on December 6, 2010 is an important part of the identification narrative in terms of Mr. Charles. The video of the photo line-up procedure was shown to the jury. The actual photographs that were included in the array utilized on December 6, 2010 were filed at trial as Exhibit 14. They were identified by Detective McVeigh as the entire photo array when he testified in chief on November 6, 2013. He was asked by Crown counsel which of the photographs represented the one that Mr. Pierre selected. Unfortunately the photographs were not marked in any way. His notes, made at the time of the photo line-up, indicated that Mr. Pierre had selected the fourth photograph shown to him. The video of the process supports that conclusion. Detective McVeigh indicated, however, that the order of the photographs appeared to have changed and he thought the seventh picture from Exhibit 14 was in fact the one selected by Mr. Pierre. It turns out that the picture of Gregory Charles was not included in Exhibit 14 at all and Detective McVeigh identified a photograph of an individual not before the Court.

[8] Detective McVeigh’s direct examination was not completed before the end of the sitting day on November 6. When he returned the next morning to complete his evidence, he introduced a photograph of Mr. Charles. He indicated that he had been bothered by the difficulty he had in finding Mr. Charles’ picture in the array filed as Exhibit 14. He went to his office and conducted a search. He testified that his search yielded a picture of Mr. Charles that had been placed in a sub-file, which he had forgotten about. It had inadvertently been left out of the array of photographs filed as Exhibit 14. Indeed, it had not been disclosed to the defence.

[9] Under cross-examination, it became clear that the photograph brought to court by Detective McVeigh on day two of his testimony was not the one shown to Mr. Pierre on December 6, 2010. When it was compared to the photograph that was apparent in the video taken on December 6, it was obvious that they did not match.

The Subsequently Discovered Photo

[10] After Detective McVeigh’s evidence was complete, and several more Crown witnesses gave evidence, the Crown sought to recall Detective McVeigh for the purpose of producing a second photograph of Mr. Charles that had just been located. It was said that this second photograph would clear up all the bother about the photo line-up because it actually was the one shown to Mr. Pierre on December 6, 2010. On November 8, 2013, a voir dire was conducted during which it became clear that the second photograph that Detective McVeigh produced was also not the one shown to Mr. Pierre on December 6, 2010. To be fair, it is possible that the photograph of Mr. Charles, as contained on the document produced by Detective McVeigh on November 8, 2013, was the same picture shown to Mr. Pierre. But Detective McVeigh, in harmony with all counsel, agreed that the document produced was not the actual document shown to Mr. Pierre. In other words, it may be that the photograph produced on November 8, 2013 was a photocopy of the actual picture shown to Mr. Pierre, or it may not be. It definitely was not the actual picture shown. In the result, the Crown withdrew its application to recall Detective McVeigh to give further evidence to the jury about the photo.

The Explanation

[11] One might be forgiven for wondering how the photo line-up evidence came to be so peculiar. On November 6, 2013, Detective McVeigh testified that Exhibit 14 included all photographs contained in the December 6, 2010 array. He had difficulty, though, picking out a photograph of Mr. Charles from the photographs contained in that exhibit. As I indicated, his difficulties troubled him and so he checked his files. He found that he had a sub-file with a hard copy of Mr. Charles’ photograph in it. He thought he must have placed that hard copy in his sub-file and forgotten about it. After he located it, he brought it to Court on November 7, 2010. He candidly admitted, however, when shown the video of the photo line-up process, that the photograph he had brought to Court was not, in fact, the one shown to Mr. Pierre.

[12] Later that day, and following the completion of his evidence, Detective McVeigh remained troubled by the missing photograph, and so additional inquiries were made. On November 8, 2013 Detective McVeigh testified that when the photo line-up was completed on December 6, 2010 he placed all of the photographs used in the array into a folder for continuity purposes. Regrettably the photograph selected by Mr. Pierre not appropriately marked. On December 13, 2010, Detective McVeigh returned to the hospital to show Mr. Pierre two photographs he had pulled from the file containing the array. One was the photograph of Mr. Charles, the other a photograph of a person of interest named Jeff Lang. Somehow the photo of Mr. Lang found its way back into the file. The photo of Mr. Charles either did not get placed back into the file, or if it did, it was subsequently removed again.

[13] At some point following his arrest on the charge now before the Court, Mr. Charles was arrested in Montreal for breach of recognizance. York Region Police officers obtained a warrant for his arrest. Detective McVeigh testified that he sent the warrant and the photo of Mr. Charles to the police in Montreal to affect Mr. Charles’ arrest. When he got the warrant and photograph back he placed them in their own folder. He searched that folder after he completed his evidence on November 7, 2013 and produced the photograph to the Crown. Why it appears different from the photograph in the video of the photo line-up on December 6, 2010 remains a mystery.

The Positions of the Parties

[14] No one suggests that Officer McVeigh has at any time acted in bad faith. I accept his innocent explanation for the loss of the photograph. Mistakes happen. This is one instance. Sometimes even innocent mistakes can have pretty significant repercussions. Mr. Charles asserts that this is such a case. He wants the proceedings against him stayed under s. 24(1) of the Charter.

[15] Section 7 provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The principles of fundamental justice undoubtedly include the right to a fair trial. Mr. Charles asserts that his right to a fair trial has been irreparably impaired by the loss of the photograph identified by Mr. Pierre in the photo line-up process on December 6, 2010. His argument is essentially two-pronged:

(a) First, he argues that he is entitled to disclosure of all relevant evidence against him as part of his right to make full answer and defence – another principle of fundamental justice (see R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326). The police have an obligation to preserve evidence against him and to disclose it to him in a timely manner. The failure of the police to preserve and disclose the most important photograph in the December 6, 2010 array is, he submits, a breach of the Crown’s disclosure obligation. The only sufficient remedy, in his submission, is a stay of proceedings;

(b) Second, he argues that even if his disclosure right has not been breached, his ability to make full answer and defence is still so impaired by the loss of the photograph that he can no longer receive a fair trial and a stay is required.

[16] Each of the defence submissions is a prejudice-based assertion. The Crown responds by taking the position that there has been no breach of Mr. Charles’ right to disclosure. Moreover, the difficulties associated with the photo line-up process and, more particularly, the loss of the photograph of Mr. Charles, are matters that go to the weight that the jury will place on that evidence. Any prejudice here works against the Crown and for the defence, as the loss of the photograph strengthens any defence assertion that the photo line-up process was defective and unreliable.

The Governing Principles

[17] This is an application for a stay of proceedings. The law is clear that a stay is a last resort and will only be granted in the clearest of cases. As Laskin J.A. observed in R. v. Knox, 2006 16479 (ON CA), [2006] O.J. No. 1976, 80 O.R. (3d) 515, 209 C.C.C. (3d) 76 (C.A.),

A stay, of course, is rarely granted because of the societal interest in a verdict on the merits. To warrant a stay, the appellant must meet the "clearest of cases" standard. Ordinarily a stay because of the Crown's failure to disclose relevant evidence is justified only if the non-disclosure either irreparably prejudiced the accused's ability to make full answer and defence or irreparably harmed the integrity of the administration of justice. (internal citations removed)

[18] There is no assertion here that the integrity of the administration of justice has been harmed, at least not irreparably. The assertion is that Mr. Charles’ ability to make full answer and defence has been irremediably prejudiced by the lost photograph.

[19] The leading case in Canada on the repercussions of lost evidence is the Supreme Court’s ruling in R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680. In La, the Court dealt squarely with the issue of whether the Crown was relieved of its duty of disclosure where relevant evidence was lost. Common sense dictates, of course, that the Crown must provide an explanation for the failure to disclose all relevant evidence. Sopinka J. commented on the Crown’s obligation at para. 20 of the decision as follows,

[The] obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown's 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. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter…

[20] The “unacceptable negligence” standard was addressed by Sopinka J. at para. 21 of La:

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

[21] It is, of course, possible for the accused to make out a breach of section 7 even if the Court finds that the Crown has met its disclosure obligations. Sopinka J. noted that in “extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial.” (para. 24). In such circumstances, the accused must establish actual prejudice to his right to make full answer and defence.

Analysis

[22] A preliminary question that must be addressed is whether the photograph of Mr. Charles, as shown to Mr. Pierre, has been lost. I am not sure that it has. It appears that the photograph produced by Detective McVeigh on November 8, 2013 may very well be the same photograph shown to Mr. Pierre on December 6, 2010. It is certainly not the original photograph, but it may be a copy. Unfortunately, “maybe” doesn’t really cut it in these circumstances. Mr. Charles is entitled to know what photograph was first selected by Mr. Pierre, given its significance to the identification narrative. The Crown is unable to produce that photograph, nor able to conclude, with any confidence, that the photograph produced by Detective McVeigh on November 8, 2013 is a true copy of it. For all intents and purposes, the evidence has been lost.

[23] The police made several mistakes along the way. First, the photograph selected by Mr. Charles ought to have been properly identified and documented, so that continuity would not be in issue. Second, it should not have been removed from the original photo array except perhaps under very controlled circumstances. Having been removed, it ought to have been returned at the earliest opportunity and its removal and return properly documented, again to ensure continuity was maintained. Finally, the original should never have been sent off to Montreal. Either a copy or an alternate photograph of Mr. Charles ought to have been sent. Control of the original ought never to have been relinquished.

[24] None of the mistakes made here were maliciously motivated, or the result of disinterest. The police obviously responded immediately to this incident and investigated it diligently and in good faith. Given the innocent explanation for the errors, one is reluctant to attach the label of “negligence” to them. It is not necessary, however, that a finding of bad faith be made before a conclusion of negligence is made.

[25] Negligence is a concept that is hard to define for all situations. Generally speaking, negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. Negligence is relative to the circumstances.

[26] There is no evidence before me as to the “industry standard” for preservation of photo line-up evidence. That said, the circumstances of this case hardly call for it. The standard must include taking care to ensure that the selected photograph, indeed all photographs included in the array, are appropriately identified and preserved. I think it must be concluded, in the circumstances, that the photograph was lost due to negligence.

[27] I am not sure just how the adjective “unacceptable” modifies the word “negligence” as used by Justice Sopinka in R. v. La. I am hard pressed to think of what acceptable negligence might include. I suspect that the answer lies in para. 21 of La, as set out above. Negligence becomes unacceptable, or intolerable, as the relevance and significance of the item in question increases. Here, the photo that was lost represents the first time that Mr. Pierre identified Mr. Charles as one of his attackers. Identity is the central issue in the trial. The identification narrative is very important. The ability of the accused to see what photographs were included, how they appear individually and relative to one another, is of central importance. That ability is, for the most part, lost now. I must conclude that the negligence is intolerable, or unacceptable. In the result, I find that the Crown has breached its disclosure obligations and, in turn, has breached Mr. Pierre’s s. 7 Charter right.

[28] I turn now to what, if any, remedy is appropriate.

The Remedy

[29] Mr. Charles’ counsel worked very hard to persuade the Court that he has suffered irreparable prejudice such that a stay of proceedings is warranted. At the end of the day, however, I am simply not persuaded that is the case. Indeed, in my view, no remedy is called for.

[30] The defence have the benefit in this case, as does the jury, of a video recording of the entire photo line-up process. The manner in which it was carried out and any defects in it are apparent for all to see. Mr. Charles is able to make fulsome submissions on its reliability or lack thereof. In other words, the video attenuates, to a significant degree, any prejudice arising from the loss of the photograph.

[31] The defence also have the benefit of all of the photo line-up photographs save the one of Mr. Charles. That may seem relatively insignificant when the very photograph selected by Mr. Pierre has gone missing. But at least the defence can view the remaining pictures to get a sense of how similar, or dissimilar, they are to Mr. Charles’ appearance. Again, this factor serves to attenuate any prejudice arising from the loss of the photograph.

[32] I concede that Mr. Charles has lost the ability to view the photograph that purported to be of him. It is possible, though highly unlikely in my view, that it was not a photograph of him at all, or that there was something so peculiar about the photograph that it would have stood out unfairly in the array. Mr. Charles does not assert bad faith or maliciousness on the part of the police. I conclude that the photograph Mr. Pierre identified on December 6, 2010 was indeed a picture of Mr. Charles and that the loss of opportunity to view it and assess any peculiarities is of only minimal consequence.

[33] Mr. Miglin advanced an interesting argument to the effect that had he known about the lost photograph prior to the trial, he may have advanced an application to obtain a ruling excluding the entire photo line-up evidence. This is a further loss of opportunity argument. As I say, it is an interesting submission, but not a persuasive one in my view. The concept of prejudice must be viewed contextually. On the one hand, I accept that Mr. Charles has lost the opportunity to advance a pre-trial motion. Whether he would have done so and what the outcome might have been are entirely conjectural matters. On the other hand, the reality is that the evidentiary record now reflects the following features: (1) a mistake by the lead investigator as to what photograph Mr. Pierre identified; (2) an attempt to correct that mistake which fell flat on its face; and (3) an inability on the part of the prosecution to produce the photograph selected by Mr. Pierre. The credibility and reliability of the identification evidence adduced by the Crown is the central issue in this trial. These features inure to the benefit of the accused and work to the prejudice of the prosecution.

[34] In the result, while I conclude that the loss of the photograph is a breach of Mr. Charles’ s. 7 Charter right, I find that he has not been prejudiced by that breach. In other words, his ability to make full answer and defence has not been materially impaired. Indeed as the case has rolled out, it has been, if anything, enhanced.

[35] This is far from the rare case – the clearest instance – where a stay is a justified remedy. In my view, no remedy is required.

Boswell J.

Released: November 12, 2013