SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ 7628
DATE: 2013-04-12

RE: HER MAJESTY THE QUEEN v DAVID TRAN VU, TREY ALEJANDRO DIAZ, NICHOLAS JAMES TALMAGE PERRON and HIEU PHUOC NGUYEN

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
A. Rajna and S. A. McLean, for the Crown

A. Trica, for the accused David Vu

P. Thorning, for the accused Troy Alexandro Diaz

Y. S. Rahamim, for the accused Nicholas James Talmage Perron

H. Van Drunen, for the accused Hieu Phuoc Nguyen

HEARD: April 8, 9, 10, 2013

RULING #2 Re Lost Evidence

[1] The accused are jointly charged with robbery with a firearm and possession of marijuana for the purpose of trafficking. David Tran Vu (“Vu”) and Trey Alexandro Diaz (“Diaz”) are additionally charged with attempted murder. The offences are alleged to have occurred on July 6, 2011 in the City of Waterloo during a drug transaction that went bad.

Nature of the Application

[2] An application has been brought on behalf of all accused for an Order excluding evidence of indentations found on the rear of three .45 calibre cartridges found at the scene of the alleged incident pursuant to sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms, or in the alternative, pursuant to the power of the Court to exclude evidence, the probative value of which is outweighed by its prejudicial effect.

Background

[3] Although it was the accuseds’ application, the Crown called seven witnesses who each gave evidence in chief and were cross-examined. They were as follows:

1. Detective Glen Huhtanen of the Waterloo Regional Police Service (“WRPS”);

2. Detective Sergeant Perry Lee of the WRPS;

3. Detective David Vandermeulen of the WRPS;

4. Detective Christopher McDonald of the WRPS;

5. Mr. Garry Lawrence, an expert in the examination, comparison and identification of firearms and ammunition with the Centre of Forensic Sciences (“CFS”);

6. Constable James Jansen of the WRPS; and

7. Mr. Thomas Mavin, retired Sergeant of the WRPS.

[4] Counsel for the accused called no evidence on the application.

[5] The following is a summary of the facts as presented by the parties in their material, as augmented and clarified by the evidence which came out of the examination of the witnesses called by the Crown on the application.

[6] The Crown alleges that the accused developed a plan to rob the complainant Andrew Balogh (“Balogh”) of a large quantity of marijuana, after arranging, through an intermediary, to meet him to complete a purchase of it. It is alleged that, during the meeting, Balogh was struck on the head with the butt end of a handgun and his marijuana was forcibly taken from him. One of the accused is alleged to have pointed the handgun at Balogh and pulled the trigger three times, but the firearm failed to fire.

[7] During the physical altercation of the alleged robbery, Balogh claims he observed the alleged handgun pointed at him, however he did not observe the trigger being pressed, nor hear any associated "gun" sounds.

[8] An independent witness Andrew Fearon-Nelson (“Nelson”) witnessed the latter part of the altercation from 80 to 90 feet away. He claims that he saw an individual wielding a handgun and pointing it at another person and saw the trigger being pressed. He says he saw the individual rack the gun and repeat the process. Mr. Nelson claims to have heard associated "gun" noises while these actions were occurring and states that he saw cartridges coming out of the gun.

[9] Following the arrival of police at the scene, an initial investigation revealed the presence of three cartridges on the ground. An inspection of each of the cartridges revealed indentations on the primers on the back of the cartridges. Photographs were taken of the cartridges with the indentations. The police firearms expert, retired Sgt. Mavin, testified at the preliminary hearing that the indentations were the result of a firing-pin strike from a firearm.

[10] A Para-Ordinance handgun, with six cartridges in its magazine, was found by a civilian approximately one year later, on July 24, 2012. Para-Ordinance is a firearms manufacturer in Scarborough, Ontario.

[11] Cell phone tower propagation maps and text messages, seized under warrant, suggest a link between the accused and the handgun found in July 2012.

[12] It is alleged by the Crown that a Mr. Welsh (“Welsh”) obtained the firearm used in the robbery and provided it to the accused Perron. An analysis of Welsh’s phone provided a series of photographs, including a photograph taken on July 5, 2011 of a firearm identified as a .45 calibre Para-Ordinance pistol.

[13] It is alleged by the Crown that the firearm linked to Welsh’s phone and described by him in a text message to Perron on July 5, 2011 was a .45 calibre Para-Ordinance, being precisely the same type of firearm found in the photograph recovered from Welsh's phone and the same type of firearm recovered by the civilian on July 24, 2012. The Crown alleges that this is the firearm that was used in the robbery and attempted murder of Balogh.

[14] Sgt. Perry Lee of the identification branch of the WRPS was called out to the scene on July 6, 2011 where he photographed and seized three live cartridges located at areas identified by him as F, G and H.

[15] The cartridges were visually examined by Sgt. Lee, together with Sgt. Mavin, who determined that, due to the shallow nature of the primer strikes, the cartridges were not suitable for submission to the Centre of Forensic Sciences (CFS).

[16] Following their examination, Sgt. Lee resealed each of the cartridges under individual seals and labelled them with numbers associated to the areas where they were located as Areas F, G and H.

[17] In September 2011 Sgt. Mavin retrieved the cartridges recovered from Areas F and G and conducted a series of tests on them in an attempt to determine why they did not discharge. Sgt. Mavin did not retrieve the cartridge which had been located at Area H which remained under the seal of Sgt. Lee and available for further testing if warranted.

[18] Prior to retrieving the two cartridges, the Crown Attorney who had carriage of the file at the time, Mark Poland, sent a letter dated September 1, 2011 to retained counsel for all four accused advising them that Sgt. Mavin would be test-firing one of the cartridges and invited counsel to examine the cartridge prior to the test-firing and to attend the test-firing if they so desired. No counsel responded or attended the test firing, nor did any of them protest the test-firing procedure and no request was made by any of the counsel to have the cartridges examined. It is noted that the letter of September 1, 2011 was not received by Mr. Thorning, counsel for the accused Diaz, as the fax number to which it was transmitted was not his actual fax number, although it was published as such on the Law Society of Upper Canada directory as well as on Mr. Thorning’s firm website and his letterhead at the time.

[19] On September 16, 2011 Sgt. Mavin test-fired one of the cartridges, being the one noted as having been retrieved from Area F, in each of two .45 cal. pistols which were in the possession of the WRPS, after firing the pistols with other ammunition to confirm that they were operational. The subject cartridge retrieved from Area F failed to discharge in either pistol, after several attempts.

[20] Efforts were made to video-tape the test-firing but there was a failure of the equipment to record the procedure.

[21] On September 20, 2011 Sgt. Mavin took the cartridge which had been retrieved from Area G to the CFS, along with a quantity of additional ammunition, to be test-fired in a Thompson sub-machine gun. He decided to try to test-fire the cartridge in a sub-machine gun as he had discovered from the label on a box containing the same type of ammunition, being “CBC 45-M4”, manufactured in Brazil, that it was labelled for use in sub-machine guns, which may have explained why it failed to discharge in a non-military .45 cal. semi-automatic handgun. Prior to attending at the CFS, Sgt. Mavin spoke by telephone with a Shane Stanec of the CFS firearms office. Mr. Stanec met Sgt. Mavin when he attended and accompanied him on the test-firing.

[22] After test-firing the selected sub-machine gun with other ammunition to confirm that it was operational, the cartridge retrieved from Area G was attempted to be fired from it, without success. A total of 8 cartridges of the same type and manufacture, being “CBC 45-M4” cartridges, were test-fired from the sub-machine gun, and only one discharged.

[23] On September 21, 2011 Sgt. Mavin retrieved the cartridge from Area F, which he had test-fired on September 16, 2011, and disassembled it into its component parts, consisting of its casing, primer, propellant powder and bullet, and successfully ignited the propellant powder to verify that the powder was active and functional. On the basis of this, he concluded that the primers on the two cartridges which he tested, being the ones retrieved from Areas F and G, had faulty or non-functional primers.

[24] Sgt. Mavin prepared a report outlining the testing that he conducted which was disclosed to the defence in advance of the preliminary hearing, where he testified and was cross examined.

[25] It has subsequently been learned from Garry Lawrence, a firearms expert at the CFS that, from a forensic analysis point of view, the cartridges should not have been test-fired as was done by Sgt. Mavin.

[26] Mr. Lawrence testified that the attempt to fire the two cartridges retrieved from Areas F and G respectively caused fresh firing-pin impressions to be made on the surface of the primer on the base of each cartridge, from the firing pin of the firearm utilized in the test-firing, which obliterated the shallow or light impressions which were present on the primers at the time that the cartridges were initially recovered from the scene, and which was present on the cartridge retrieved from Area H.

[27] The obliteration of the impressions which were previously present on the bases of the cartridges from Areas F and G had the result of preventing them from ever being analysed in conjunction with any firearm, including the firearm which had been turned over to the police in July 2012, to attempt to determine whether one or both of them had been struck by the firing-pin of such firearm.

[28] Following the preliminary hearing, various items were sent by the police to the Centre of Forensic Sciences, including the cartridge recovered from area H, which remained under the original seal of Sgt. Lee, the cartridges from Areas F and G that had been tested by Sgt. Mavin, and a series of cartridges that had been used in the testing by Sgt. Mavin for comparison purposes.

[29] Mr. Lawrence analyzed the items which had been delivered to the CFS and authored a report dated November 23, 2012. With respect to the three cartridges which were recovered at the scene at areas F, G and H, and submitted for the purpose of comparing the firing-pin strikes to the pistol, he determined that "due to the inconsistencies in the case history and conversations with Waterloo Regional Police Service regarding the cartridges and the firing pin strikes” no further examination would be conducted on the cartridges.

[30] The conclusion by Mr. Lawrence that no further testing would be conducted on the cartridges was made partly due to concerns with respect to continuity of the items submitted to the CFS, as well as inconsistencies between his analysis of the items that had been submitted and the information that he had been provided, which had turned out to be incomplete and incorrect. In particular, it appeared to Mr. Lawrence, based upon the documentation submitted to him, that there may have been co-mingling of the cartridges from areas F and G that were test-fired by Sgt. Mavin. It is noted, however, from Sgt. Mavin’s testimony on the application, that the cartridges were not co-mingled, but rather the references to areas F and G were simply transposed in his notes.

[31] At the time of Mr. Lawrence’s decision that no further testing would be conducted he was unaware that six further cartridges had been located within the firearm.

[32] An independent firearms expert Mr. Liam Hendriks was retained on behalf of the accused Vu for the purpose of independently examining the three cartridges located at the scene and the firearm found by the civilian in July 2012.

[33] On the recommendation of Mr. Hendriks, a detailed request was made to the Crown for examination notes generated by Sgt. Mavin relating to his examination of the cartridges as well as for the notes of Mr. Lawrence.

[34] Crown counsel provided defence counsel with the requested notes consisting of 61 pages of disclosure.

[35] After concerns were raised by the defence regarding what they considered to be lost evidence, the existence of the six cartridges found in the detachable cartridge magazine of the firearm which had been discovered in July 2102 came to light, as well as the fact that they had not been previously submitted to the CFS. The Crown offered to have the cartridges submitted to the CFS for further testing which resulted in a further report being authored by Mr. Lawrence dated March 25, 2013.

[36] In his report, Mr. Lawrence refers to the three cartridges found at the scene as items #29, # 30, and # 31. He referred to the firearm submitted to him as item # 34 and the six cartridges that were found in the detachable cartridge magazine of the firearm as items #37(1) to (6). Cartridge item #29 was the one which was not test-fired by Mr. Mavin, and which was retrieved from Area H, and retained the light firing-pin impression on its primer as found at the scene. Items #30 and #31 were the cartridges which were retrieved from Areas F and G respectively, and were the ones which Mr. Mavin test-fired, thereby obliterating the light firing-pin impressions on their primers as they existed at the time they were recovered from the scene.

[37] Mr. Lawrence’s report of March 25, 2013 disclosed that Item # 29 cartridge and three of the cartridges from the detachable cartridge magazine of the firearm, being items #37-1, #37-3 and #37-4 were identified as having been loaded in the same detachable cartridge magazine, although confirmed in testimony as having been not necessarily so loaded at the same time and not necessarily in the item #34 magazine. It also reported that Item # 29 cartridge and items #37-2, #37-5 and #37-6 could neither be identified nor eliminated as having been loaded in the same detachable cartridge magazine, and that item # 29 could neither be identified or eliminated as having been loaded in the item #34 detachable cartridge magazine.

[38] In giving evidence on the application, Mr. Lawrence testified that, due to the lack of individual characteristics associated item #29 cartridge, he was unable to determine whether it was, or was not, struck by the firing-pin of the item #34 firearm. He also stated that item #29 cartridge had been loaded in more than one detachable cartridge magazine.

[39] At the commencement of submissions, Crown counsel acknowledged that the evidence of the impressions on the cartridge primers of Items #30 and #31 has been lost. However, the Crown disputes that there has been a breach of section 7 of the Charter and maintains that the evidence of the impression on item #29, as well as the fact that there were impressions on Items #30 and #31, as shown in the photographs taken at the scene of the incident, should not be excluded.

Summary of Facts re: Lost Evidence of Impressions on Cartridge Primers

[40] The facts respecting the lost evidence of impressions on the cartridges may be summarized as follows:

(a) all three cartridges found at the scene, being items #29, #30 and #31, were found to have light, or shallow, impressions on their primers;

(b) the light impressions likely, but not conclusively, resulted from being struck by the firing-pin of a firearm;

(c) it is not possible to determine whether the primers on the cartridges were struck by the firing-pin of a particular firearm by a visual examination, but rather a microscopic examination of each cartridge and of the firearm is required to determine the presence of both class and individual characteristics establishing or excluding linkage between them;

(d) test-firing of cartridges items #30 and #31 by the police caused fresh firing-pin strike impressions to be made on their primers which obliterated the light impressions which were there previously;

(e) as a result of the obliteration of the impressions on cartridges items #30 and #31, they cannot be compared to firearm #34, cartridge #29, or to each other. It is therefore not possible to make any determination of whether they were attempted to be fired by firearm #34, or if one or both were attempted to be fired by some other firearm;

(f) cartridge item # 29 was shown to be linked to three of the cartridges from the detachable cartridge magazine found in firearm # 34, as having been loaded in the same detachable cartridge magazine, but not necessarily that found in firearm #34 and not necessarily at the same time;

(g) cartridge item # 29 and the remaining three cartridges found in the # 34 detachable cartridge magazine could neither be identified nor eliminated as having been loaded in the same detachable cartridge magazine; and

(h) cartridge item # 29 could neither be identified or eliminated as having been loaded in the item #34 detachable cartridge magazine, nor having been struck by the firing-pin of item #34.

Position of the Applicants

[41] The Applicants argue that the contamination or loss of the impressions on cartridges # 30 and #31 by the police through the test-firing resulted from unacceptable negligence. As such, the right of the accused to full disclosure, guaranteed by section 7 of the Charter was infringed.

[42] The Applicants submit that the cartridges should never have been tampered with, but if experiments were deemed to be necessary, precautions should have been taken to ensure that no other viable means existed of furthering the goals sought through such experimentation without losing the evidentiary value of the cartridges and the marks impressed upon them. The physical evidence of the cartridges found at the scene is asserted by the Applicants to be vitally relevant to the alleged offense of attempted murder and its preservation ought to have been given the highest priority.

[43] Due to the loss of the evidence, the Applicants submit that they are no longer able to conduct any independent testing on the cartridges to test the Crown's theory and to support their defence. In particular, due to the loss of the impressions on the primers of cartridges #30 and #31, any ability to compare them to cartridge # 29 has been lost. With that, any possibility of the existence of some exculpatory evidence may have been lost, including any ability to demonstrate that cartridges #30 and #31 are not linked to firearm #34, or that that items #29, #30 and #31 are not linked to each other.

[44] The Applicants submit that, as a result of the loss of the evidence, the two accused charged with attempted murder will now have prejudicial evidence presented to the jury against them showing photographs of the three cartridges with their back primers struck, found where it is alleged a firearm was triggered. As a result of the contamination of the evidence, the defence cannot have it independently tested in order to potentially scientifically support the defence theory that the indentations were not caused by a firing pin strike at the scene and were likely not caused by the Para-Ordinance handgun in question.

[45] The accused say that their right to a fair trial and security of the person under section 7 of the Charter has been breached by the loss of the indentations on the cartridges.

[46] The defence also argue that the evidence of the indentations on the cartridges should be excluded by the court in the exercise of its common law power to exclude evidence on the basis that its probative value is outweighed by its prejudicial effect. They say that the prejudice arises from the danger of the jury drawing prejudicial inferences against the accused in three ways:

(a) on the moral basis of the accused being affiliated with bullets that have been attempted to be fired;

(b) by illogically concluding that the only explanation is that one of the applicant fired a firearm at the scene; and

(c) the jury will be distracted from their fact-finding mission by the convoluted process of assessing exactly what occurred with the cartridges while in the possession of the police and the Crown.

[47] With respect to remedy, the defence seeks exclusion, pursuant to section 24(1) of the Charter, of the indentations on all three cartridges found at the scene, or in the alternative, an order excluding the evidence of the cartridges on the basis that its prejudicial effect outweighs its probative value, or in the further alternative, a judicial instruction to the jury advising them to draw an adverse inference against the Crown's case due to the loss of evidence while in its possession, or that of the police.

Analysis

(a) Approach in Cases of Lost Evidence

[48] The parties are agreed that the proper approach to be adopted where an accused claims that the failure to preserve evidence results in a breach of Charter right is summarized in the case of R. v. Bero 2000 16956 (ON CA), [2000] O.J. No. 4199 (Ont. CA) at para. 30, as follows:

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.

[49] As indicated above, the Crown has acknowledged that the impressions on cartridges #30 and #31 have been lost. It was not seriously argued, and I do not find, that the failure to produce the evidence of the original impressions found on cartridges #30 and #31 constituted an abuse of process associated with a deliberate destruction for the purpose of defeating the disclosure obligation.

(b) Issues

[50] The issues are therefore :

1. did the loss of evidence result from "unacceptable negligence"?

2. even if the Crown is able to show that there was no unacceptable negligence, can the loss be shown to be so prejudicial to the right of the accused to make a full answer and defence that it impairs the right to a fair trial?

3. if a breach of section 7 of the Charter is found, what is the appropriate remedy?

(c) Section 7 Breach

[51] The parties part ways on the question of what is meant by "unacceptable negligence". The defence argues that it does not mean anything other than negligence, or unacceptable or unsatisfactory conduct. They argue that, given the duty on the police and the Crown to preserve evidence, any breach of that duty would amount to a breach of section 7. The Crown argues that the qualifier "unacceptable" connotes a higher standard than just negligence in order to trigger a section 7 breach.

[52] It is noted that Justice Sopinka, in his consideration of the nature of conduct arising from failure to disclose that will amount to an abuse of process in R. v. La 1997 309 (SCC), [1997] 2 S.C.R. 680 at para. 22, stated that “it must include conduct on the part of governmental authorities that violates those fundamental principles that underlie the community’s sense of decency and fair play.” He stated that an abuse of process is not limited to conduct of officers of the Crown that which proceeds from an improper motive, but that “in some cases an unacceptable degree of negligent conduct may suffice.” In my view, this indicates that whether "negligent conduct" has reached an "unacceptable degree" is to be viewed from the perspective of the community’s sense of decency and fair play. Since "unacceptable negligence" does not emanate from an improper motive, its degree of acceptability should be gauged by its potential to impact the fairness of the trial process, viewed from a community perspective.

[53] In this case Sgt. Mavin testified that his purpose, in carrying out the test-firing, of the cartridges was to determine whether they were functional. He had difficulty in articulating how this determination would assist in the investigation or the prosecution of the offences. When pressed in cross-examination, he offered that it would assist in a determination of whether the cartridges satisfy the definition of "ammunition" in the Criminal Code. It is difficult to see the relevance or importance of this determination to the investigation or prosecution. In any event, Mr. Lawrence testified that it would not be necessary to attempt to discharge the cartridges in a firearm to make the determination of whether the cartridges were “ammunition”. Disassembly of the cartridge would suffice. Moreover, from a forensic standpoint, destruction of the evidence of the impressions by test-firing, in Mr. Lawrence’s view, was simply the wrong thing to do. Forensic principles teach that preservation of evidence, rather than its destruction, is the proper course to be followed.

[54] Sgt. Mavin did address his mind to the need to preserve evidence by setting aside cartridge #29 for future examination. However, he failed to appreciate the possibility that the preservation of only one of the cartridges for comparison to a fire-arm which may be located in the future would be insufficient to establish or eliminate linkages between the cartridges and such a firearm, or among the cartridges themselves.

[55] It is evident that, prior to making the determination, in consultation with other investigating officers on the case, to proceed with the test-firing, Sgt. Mavin did not consider it necessary to seek advice from any experts at the CFS. Had he done so he very likely would have been advised not to proceed.

[56] In my view, the loss of the evidence of the impressions on items #30 and #31 did result from "unacceptable negligence" in the sense of its potential to impact the fairness of the trial process, viewed objectively, and therefore s.7 of the Charter was breached. The fact that advance notice was given to defence counsel of the proposed test-firing does not take away from this finding. Although it certainly assists in establishing the good faith of the Crown and the police, no attempt was made to bring home to defence counsel the fact that the test-firing would result in obliteration of the impression evidence and would impact the ability to carry out any future investigations respecting it. It would be unreasonable to expect defence counsel to fully appreciate the significance of what was being proposed when Sgt. Mavin himself did not appreciate it. Moreover, the letter from the Crown only mentioned that one cartridge would be fired, not two.

(d) Remedy

[57] Having found a breach of section 7 of the Charter, it is necessary to consider the question of the appropriate remedy.

[58] As noted above, in addition to reliance on section 7 of the Charter, the defence also relies upon the common law authority of the trial judge to exclude evidence on the ground that its admission would render the trial proceeding unfair. In the recent case of R.v. Spackman 2012 ONCA 905 (CA) at para. 99, Watt, J.A., citing R.v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562 at paras. 23-24, observed that this common-law admissibility rule has achieved constitutional status because of the section 11(d) Charter guarantee of a fair hearing.

[59] After noting that constitutionally obtained evidence may be excluded under the Charter if the introduction of the evidence would render the trial unfair, and thus infringe the fair trial rights of an accused guaranteed by ss. 7 and 11(d) of the Charter, and that the exclusionary mechanism in such cases is s. 24(1) of the Charter, not 24(2), Justice Watt made the following observations at paras. 102-103:

(a) a fair trial is one that appears fair, not only from the perspective of the accused, but also from the perspective of the community;

(b) a fair trial is one that satisfies the public interest in getting at the truth, but at the same time preserves basic procedural fairness for the accused;

(c) an accused who seeks evidentiary exclusion under [section 24(1)](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-19