ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-2328
DATE: 2015 01 26
B E T W E E N:
HER MAJESTY THE QUEEN
C. Coughlin and A. Bernstein, for the Crown
- and -
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
J. Razaqpur, for the accused Jaswinder Singh; R. Lepore, for the accused Asogian Gunalingam; and F. Davoudi, for the defendant Jora Jassal
ENDORSEMENT
(EXCLUSION OF DNA ANALYSIS)
Coroza J.
Overview
Jaswinder Singh seeks to exclude the results of a DNA analysis conducted by the Centre of Forensic Sciences (CFS), which examined cloth straps found in the basement room at 3068 Ireson Court. V.B. was found tied up on a bed with these straps by police officers on November 11, 2011.
It is anticipated that forensic biolgist James Currie will testify on behalf of the CFS.
Mr. Singh requests that a voir dire be conducted in relation to his application to exclude evidence. This case was previously tried by Skarica J. with a jury. A mistrial was declared. Prior to the mistrial, Detective Kavic of the Peel Regional Police testified as a witness and, during his testimony, the cloth straps were removed from an evidence bag and shown to the jury. As part of the voir dire, Mr. Singh proposes that I rely on transcripts of the first trial of January 22, 2014, and the pre-trial motions of November 19, 2013.
At the first trial before Skarica J., the Crown did not have the benefit of the CFS report. Following the mistrial, the police sent the cloths for analysis by the CFS on April 28, 2014. Mr. Currie provided a report on May 30, 2014, and this report was disclosed to counsel in June of 2014. It was determined that one of the pieces of cloth – a tensor bandage – contained DNA matching the profile of Mr. Singh’s DNA. Specifically, there was a DNA mixture located on this tensor bandage and the major profile of the mixture matches the DNA profile of Mr. Singh. The other profiles contained in the DNA mixture could not be determined.
Mr. Singh argues that the handling of these straps during the first trial did not comply with the most basic requirements for collection and preservation of DNA items. He argues that the potential for contamination was very high and the continuity of the item was severely compromised by the actions of the police and the handling of the items prior to testing by the CFS. Mr. Singh specifically impugns the actions of Detective Kavic, who testified during the first trial and handled the exhibit without changing his gloves.
For the purposes of these reasons, I need not reproduce the detailed chronology set out by Mr. Singh’s counsel at paragraphs four to eleven of his application. That detailed chronology describes how the straps were shown to the jury and what exhibits Detective Kavic handled prior to showing the straps to the jury.
The Crown, as a preliminary matter, submitted that this motion should be summarily dismissed. The Crown argues that Mr. Singh has not complied with the applicable notice periods and has provided an insufficient evidentiary basis for the application. The Crown also submits that the remedy sought is not appropriate.
I agree with the Crown. In my view, the application should be summarily dismissed because it has no merit and has no reasonable prospect of succeeding.
Analysis
Mr. Razaqpur’s argument is that the tensor bandage has been handled by a number of individuals since the first mistrial and there is a real risk that contamination has made the finding by Mr. Currie unreliable.
He submits that, given the repeated handling of the exhibit during the first trial , the evidence is so prejudicial that the jury will simply be overwhelmed by the witness, the report, and the evidence. He argues that the probative value is outweighed by the significant prejudice.
I do not find his argument persuasive. Even accepting all of the assertions in Mr. Razaqpur’s written brief as being proven, the argument advanced is a question of weight not admissibility. I do not understand Mr. Razaqpur to argue that Mr. Currie has “made up” his finding that DNA is on the tensor bandage. I understand Mr. Razaqpur’s argument to be that the finding that Mr. Singh’s DNA was present on the tensor bandage is unreliable because there is a real risk that the DNA mixture may have been contaminated and that Mr. Singh’s DNA may have been inadvertently placed onto the item subsequent to its seizure by the police on November 11, 2011.
If there is conflicting evidence upon which the jury could find that the DNA profile discovered by Mr. Currie on the tensor bandage was contaminated or corrupted, then it is up to the jury to decide what weight they will give to Mr. Currie’s opinion. I am not empowered to weigh the conflicting evidence, and I am not prepared to rule that the report is inadmissible because there is a mere possibility that there was contamination before Mr. Currie tested the exhibit.[^1]
I do not require a voir dire to reach my conclusion. As I pointed out to Mr. Razaqpur, I have proceeded on the basis that his assertions and allegations have been proven.
The case management powers of a trial judge are broad and well established in common law. These powers derive from the inherent power of trial courts to control their own process and to ensure a fair trial. Their purpose is to ensure that proceedings are conducted with effectiveness, fairness, and efficiency. This becomes especially important in light of the scarcity of judicial resources and the increasing length and complexity of criminal trials. This has been a long criminal trial and I am becoming concerned at motions that have been brought at the last minute.
This specific motion has been brought as a mid-trial motion. I have been presiding on this case since September. The jury has been sitting on this case since November 20. This report has been in Mr. Razaqpur’s hands well in advance of September. For reasons that are not apparent to me, Mr. Razaqpur only brought this motion a few days before Mr. Currie is set to testify. The delay in bringing this motion is unexplained. In such circumstances, I think the presumption should be that the motion should not be heard.
There is ample authority that supports the principle that, if there is no reasonable likelihood that the motion or application in question will impact the admissibility of the evidence, the trial judge has discretion to reject the request for a voir dire. Included in my trial management power is the power to dismiss motions and applications that are evidently void of merit.[^2] Justice Charron in R. v. Lising, 2005 SCC 66 held:
35 …. For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.
- Based on the materials filed, the application requesting a voir dire on the issue is dismissed.
Justice Coroza
Released: January 26, 2015
COURT FILE NO.: CR-12-2328
DATE: 2015 01 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
ENDORSEMENT
(EXCLUSION OF DNA ANALYSIS)
Justice Coroza
Released: January 26, 2015
[^1]: See: R. v. Andrade, 1985 3502 (ON CA), [1985] O.J. No. 968, 6 O.A.C. 345 at paras. 56 to 65
[^2]: See R v. Lising, 2005 SCC 66 at para. 34; R. v. Durette (1992), 1992 2779 (ON CA), 72 C.C.C. (3d) 421, 54 O.A.C. 81 (Ont. C.A.) at para 46, overruled on other grounds at 1994 123 (SCC), [1994] 1 S.C.R.. 469; R v. Kutynec, 1992 12755 (ON CA), [1992] O.J. No. 347, 52 O.A.C. 59 (Ont. C.A.) at paras 36 - 40, where Finlayson J.A. held that “counsel is not entitled to proceed immediately to a voir dire on the issue”, and that a trial judge has a duty to weed out patently unmeritorious applications; and R v. Garrick, 2014 ONCA 757 at paras 16-18
[^3]: 2005 SCC 66