Court File and Parties

NEWMARKET COURT FILE NO.: 14-04174 DATE: 20160909 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – David Odesho

Counsel: Kevin Stewart, for the Crown James L. Miglin and Zaire Puil, for Mr. Odesho

HEARD: September 6 and 8, 2016

Ruling on Section 8 Application and the Admissibility of GSR Evidence

Bird J.:

Background

[1] Just after 6:30 p.m. on June 6, 2014, a gunman walked into the kitchen of the Baggio Café in Vaughan and fatally shot Sarhad Sadiq. A second victim, Behgat Eyup, was also shot but survived. The Crown alleges that the accused, David Odesho, was at the café earlier in the day and was told to leave by the deceased who jointly owned the business with Mr. Eyup. Angered by this, Mr. Odesho returned a short time later, armed with a gun and shot both men in the kitchen. He then fled to a waiting car (a white Mazda 3) that was being driven by Fade Dawood. Mr. Odesho told Mr. Dawood to drive away from the scene. After driving a short distance, the accused instructed Mr. Dawood to get out of the car. He did, and Mr. Odesho drove away.

[2] The police located the Mazda, which was a rental car, on June 9, 2014. It was found in a parking lot in Toronto where it had been since the early morning hours of June 7, 2014. The car was locked when the police located it. On June 10, 2014, the police searched the Mazda pursuant to a search warrant. As part of the search, tapelift samples were taken from various areas in the car, including the gearshift. Those samples were sent to the Centre of Forensic Sciences (CFS) to be tested for the presence of gunshot residue (GSR). Dr. Elspeth Lindsay, a forensic scientist, analysed the samples and found one particle of GSR on the tapelift sample from the gear shift of the Mazda. No other particles of GSR were found on any of the other samples from the car.

[3] Mr. Dawood voluntarily attended a police station in Toronto and asked to speak with investigators about the homicide. He told the police in a videotaped statement that he had run into Mr. Odesho at Baggio’s on the afternoon of the shooting. The two men left the café together in the Mazda but returned a short time later. Mr. Dawood claims that he remained outside the café while Mr. Odesho entered. He says he has no knowledge about what happened in the café, but heard gunshots from inside. As a result, he got back into the Mazda, in the driver’s seat. Mr. Odesho, along with several other people, ran out of the café. Mr. Odesho jumped into the passenger seat of the Mazda and told him to drive away.

[4] It is the position of the defence that it was Mr. Dawood, not Mr. Odesho, who was the shooter.

[5] Mr. Odesho was arrested when he turned himself into the police just over 48 hours after the shooting, on the evening of June 8, 2014. He was searched incident to arrest and the clothing he wore to the police station was seized. During this process, Mr. Odesho was required to remove all of his clothing. He was in a state of total nudity for one minute and 15 seconds. The search was videotaped in its entirety.

[6] Mr. Odesho’s underwear was subsequently sent to the CFS for analysis. Dr. Lindsay tested it for the presence of GSR and found one particle. Although tapelift samples were taken from Mr. Odesho’s hands, they were not analysed due to the length of time between the homicide and the arrest. As a general rule, the CFS will not test hand samples if more than eight hours have elapsed. None of Mr. Odesho’s other clothing was tested because there was no evidence that it was connected with the shooting.

[7] The Crown will rely primarily on the anticipated evidence of Mr. Dawood and Mr. Eyup to prove its case against Mr. Odesho. Mr. Eyup is expected to identify the accused, who he knew by the nickname of Penguin, as the shooter. According to Mr. Eyup, Mr. Odesho had been frequenting the café for a few months prior to the shooting. Approximately a week before the shooting, the police attended the café in response to a concern about firearms being present. Mr. Eyup says that the café was searched and no guns were found.

[8] However, this led to a confrontation between Mr. Sadiq and the accused hours before the homicide. According to Mr. Eyup, immediately before the shooting, he and the deceased were talking about the incident in the kitchen. Mr. Sadiq said that Mr. Odesho had been in the café earlier in the day, and that he had told him to leave and not to bring a gun to the café again. It was as Mr. Eyup and Mr. Sadiq were having this conversation about Mr. Odesho that he unexpectedly came into the kitchen and shot them.

[9] In addition to the evidence of Mr. Eyup and Mr. Dawood, the Crown seeks to rely on the GSR evidence as being circumstantial evidence that Mr. Odesho was the shooter. The defence concedes the admissibility of the evidence of Dr. Lindsay about the particle of GSR she identified on the tapelift sample from the gearshift of the Mazda. The position of the defence will be that it is equally consistent with Mr. Dawood having been the shooter. The defence objects to the admission of evidence that a single particle of GSR was found on the accused’s underwear, on the basis that it has so little probative value that it is not relevant.

[10] In addition, Mr. Odesho asserts that he was subjected to a strip search that violated his rights as guaranteed by Section 8 of the Charter, and seeks to exclude the underwear and resulting examination of them pursuant to Section 24(2).

Section 8

[11] Two forensic officers were directed by the lead homicide investigator, Detective Cheung, to seize each piece of Mr. Odesho’s clothing and take photographs of him. Over the course of nine minutes, Mr. Odesho was instructed to remove his clothing. He was photographed during each stage of undress. Although Constable Rogers was in the room when Mr. Odesho began removing his clothing, she left as he was removing his shorts. Both Constable Rogers and Constable Booker treated Mr. Odesho with respect and professionalism. There was nothing about the manner in which the officers dealt with him that can be criticized. Similarly, Mr. Odesho was fully cooperative during the search.

[12] However, the search was videotaped in its entirety, including the period of time during which Mr. Odesho was completely naked. His genital area was fully exposed and recorded on videotape. While he was advised when he was paraded that he would be videotaped while he was in the police station, he was not specifically told by the forensic officers that the strip search was being recorded. Further, he was not given the option of having the camera turned off during the search. It was obvious that his participation in the search was not optional. The officers told him that he was required to remove his clothing and that they were going to take photographs of him during the process. The police were in complete control of how the search was conducted and recorded.

[13] The Applicant submits that the warrantless search was unlawful because there were insufficient grounds to justify it and it was not conducted in a reasonable manner. The Crown’s position is that Mr. Odesho’s clothing was all properly seized incident to his arrest for murder. Specifically, the Crown relies on the fact that Mr. Eyup told the police that the shooter retrieved the gun from the waistband of his pants. In those circumstances, it was reasonable to expect that there might be GSR on the Applicant’s underwear.

[14] The Crown does not accept that Mr. Odesho was subjected to a strip search. However, the Crown concedes that regardless of how it is characterized, the fact that Mr. Odesho was videotaped in a state of complete undress violated his Section 8 rights because the search was not carried out in a reasonable manner.

[15] With respect to the nature of the search, a strip search is defined as involving the removal or rearrangement of some or all of the clothing of a person to permit a visual inspection of a person’s private areas or undergarments (R. v. Golden, 2001 SCC 83 at paragraph 47). The Crown’s position is that the police were only interested in seizing Mr. Odesho’s clothing for forensic testing, and were not endeavouring to inspect his body or undergarments.

[16] In support of this position, the Crown relies on the judgment in R. v. Backhouse, 2005 ONCA 4937. Mr. Backhouse was arrested less than 2½ hours after the murder. All of his clothing was seized at the police station for the purpose of forensic examination. Mr. Backhouse was immediately given new clothing to wear. The court said that the seizure of his clothing was done quickly. There is nothing in the judgment to suggest that any photographs were taken of Mr. Backhouse during this process, or that his body was inspected by the police. In those circumstances, the court found that the search of Mr. Backhouse did not fall within the definition of a strip search. However, Rosenberg J.A. stated that he did not want the decision to rest on such a “technical distinction” (at paragraph 84).

[17] The Crown emphasizes the fact that there was no inspection of Mr. Odesho’s “private areas” as there was in Golden, supra. However, as pointed out by Fuerst J. in R. v. Lee, 2013 ONSC 637, there are two prongs to the definition of a strip search and it includes a visual inspection of a person’s undergarments.

[18] The facts in this case are markedly different than those in Backhouse. The search and seizure of Mr. Odesho was not done quickly. The process took approximately nine minutes and involved many photographs of his body while he was in various states of undress. Specifically, several photographs were taken of Mr. Odesho while he was wearing only his underwear.

[19] Constable Booker adamantly refused to accept, for the majority of his evidence on this application, that he conducted a strip search of Mr. Odesho. However, he admitted that he was inspecting both Mr. Odesho’s body and his clothing for the presence of evidence or injuries. For instance, he agreed that he looked at Mr. Odesho’s body for any evidence possibly related to the offence, including the presence of blood or injuries. It is apparent on the video that Officer Booker was carefully inspecting Mr. Odesho’s body. In fact, while Mr. Odesho was completely naked, Constable Booker noticed a mark on his thigh that he had not seen earlier. He photographed this defect after Mr. Odesho had put the police issued jumpsuit on. Ultimately, Constable Booker agreed that he visually inspected Mr. Odesho’s body while he was wearing only his underwear and while he was naked. He also inspected Mr. Odesho’s underwear. Therefore, the purpose of the search of the Applicant was far broader than it was in Backhouse, supra, and is properly characterized as a strip search.

[20] The principles which apply to strip searches were extensively set out in Golden. The court recognized the inherently degrading and humiliating nature of strip searches, regardless of how they are carried out. As a result, there is an acute need to prevent unjustified strip searches from occurring unless specific criteria are satisfied (Golden at paragraph 89). They cannot be conducted as a matter of policy and must be related to the reasons for the arrest of the subject (at paragraphs 90 and 92).

[21] The Crown’s position is that the search of Mr. Odesho was directly related to the reason for his arrest – his alleged involvement in the shooting of Mr. Sadiq and Mr. Eyup. The Crown submits that it was reasonable to seize his clothing so that it could be forensically tested for the presence of gunshot residue. The difficulty with this argument is the fact that Mr. Odesho was not arrested until 48 hours after the shooting. There is no question that had he been arrested shortly after the murder, reasonable grounds would have existed to seize and examine his clothing. In Backhouse, the accused was arrested less than 2½ hours after the shooting. It was reasonable to believe that the clothing he was wearing upon arrest was the same clothing he would have had on at the time of the shooting.

[22] In contrast, there is no evidence that the clothing Mr. Odesho was wearing when he turned himself in was the same clothing he was wearing two days earlier. In fact, in his statement to the police on June 6, 2014, Mr. Eyup said that the shooter was wearing a red t-shirt. The t-shirt seized from Mr. Odesho was black. Mr. Eyup was unable to provide the police with any information about what the shooter was wearing on the lower half of his body.

[23] Mr. Dawood was interviewed by the police on June 6, 2014, and provided a description of the clothing Mr. Odesho was wearing that day. He told the police that on the evening of the shooting, Mr. Odesho was wearing a red hooded sweater and blue jeans. Detective Cheung was aware of this description prior to Mr. Odesho turning himself in. Detective Cheung did not see Mr. Odesho at any time before making the decision to seize his clothing. He made no inquiries about what Mr. Odesho was wearing at the time of his arrest. Therefore, he had no idea whether the clothing that he ordered be seized was consistent with the clothing worn by Mr. Odesho on the evening of June 6, 2014. Detective Cheung did not have any grounds to believe that the clothing seized from Mr. Odesho was connected with the offence.

[24] Mr. Odesho was captured on a surveillance video at approximately 3:30 p.m. on June 6, 2014, about 2½ hours before the shooting. His clothing is clearly visible and is completely different from that which he wore to the police station on June 8, 2014. On the afternoon of June 6, 2014, Mr. Odesho was wearing a white t-shirt and blue jeans. When he turned himself in, he was wearing a black t-shirt and grey shorts. While the existence of the surveillance video was known to officers on June 8, 2014, there is no evidence that anyone had watched it prior to the search of Mr. Odesho.

[25] The Crown submits that regardless of the fact that Mr. Odesho was wearing different exterior clothes when he was arrested, he may have been wearing the same underwear that he had on more than 48 hours earlier. There is no evidence to support that theory. It is pure speculation to suggest that Mr. Odesho would have changed his exterior clothes but worn the same pair of underwear for more than 48 hours. In order to have reasonable grounds to believe that Mr. Odesho’s underwear would afford evidence of the murder, the police should have asked him if they were the same underwear he was wearing on June 6, 2014.

[26] Constable Booker, who seized the clothing, was simply following directions given to him by Detective Cheung. Detective Cheung testified that in his mind there was a “possibility” that there could be GSR on Mr. Odesho’s clothing. This belief falls short of the requisite reasonable and probable grounds to believe that evidence of the offence would be found on the items seized. At most, it indicates a hope that evidence might be found.

[27] Detective Cheung agreed that based on his very limited knowledge of GSR in 2014, he would have ordered the seizure of the clothing of a suspected shooter regardless of the passage of time, or the existence of any link between the clothing and the offence. He would have done so based on his belief that GSR particles are easily transferable. He theorized that if Mr. Odesho had GSR on his hands and changed his clothing, he could have transferred GSR particles to the new clothing. However, Dr. Lindsay testified that she would not expect to find any particles of GSR on the hands of a shooter eight hours or more after the time of the shooting. Detective Cheung was not aware of this limitation on GSR evidence. It is clear that his basis for seizing the clothing of Mr. Odesho was speculative at best.

[28] In light of the passage of time and the lack of any established connection between the clothing Mr. Odesho wore to the police station and that worn by the shooter, there were not reasonable grounds to believe that the seizure of the clothing would afford evidence of the murder. The seizure of the clothing was a fishing expedition conducted in the hope that something of value might be discovered. The Crown has not met its onus of establishing that the requisite grounds existed to seize the Applicant’s clothing incident to arrest.

[29] While this finding alone establishes a violation of Section 8, the Crown also fails on the second prong of the section 8 analysis by failing to satisfy me that the manner in which the search was carried out was reasonable. In Golden, the court stated that a strip search must be conducted in a way that interferes with the privacy and dignity of the subject as little as possible (at paragraph 104). The court adopted the guidelines set out in English legislation, to establish questions to be asked in assessing whether the manner in which a strip search was executed complied with the Charter.

[30] The search of Mr. Odesho did not comply with these guidelines in three respects. First, I am not satisfied that it was authorized by an officer who was acting in a supervisory capacity. The Crown relies on the fact that Detective MacDonald, one of the homicide officers, was a “ranking officer” and was therefore necessarily acting in a supervisory capacity. While I accept that this officer had the ability to give orders that subordinate officers were required to follow, he was not in charge of the police station or its occupants. In my view, the purpose of having the search authorized by a supervisory officer is to ensure that there is an objective, impartial assessment of the necessity for a strip search. As one of the lead homicide investigators, Detective MacDonald had a vested interest in securing as much evidence as possible in relation to the offence. He was therefore not in a position to objectively assess the need for a strip search. That assessment should have been made by the Staff Sergeant in charge of the police station who was responsible for the well-being of all prisoners. In addition, the Staff Sergeant would be expected to take steps to make sure that the search was carried out in accordance with established procedures.

[31] Secondly, the search of Mr. Odesho was not conducted in such a way as to ensure that he was not completely undressed at any one time. Mr. Odesho was left in a state of complete undress for approximately one minute and 15 seconds. The police did not give him any clothing to put on his upper body while he removed the clothing from his lower body. If Mr. Odesho had been instructed to remove the clothing from his lower body first, he could have put the jumpsuit on his lower body before removing his shirts. He would therefore not have been totally naked at any time. Standing naked with his genitals fully exposed for over a minute was inherently humiliating and degrading, despite the respect and courtesy afforded to Mr. Odesho by Constables Booker and Rogers.

[32] Finally, the fact that the procedure was videotaped in its entirety is not consistent with the requirement that the search be carried out in such a way that ensures that no one other than the people engaged in it can observe it. In this case another officer, Constable Seal, monitored the interview room via video while the strip search was being conducted. Constable Seal was in a monitor room located down the hall from the interview room. He cannot recall whether the door to the monitor room was open or closed when Mr. Odesho was being searched. Nor can he recall whether any other officer entered the monitor room while he was observing the search of Mr. Odesho. He did not make a note at the time of either of those details and has no independent recollection currently.

[33] Detective Cheung has seen the video of the search, as has another police officer who was tasked with editing it for court purposes. Therefore, in addition to Constable Booker who was present in the room, three other police officers have seen video footage of Mr. Odesho in a state of complete undress. Constable Booker testified that he has watched the video at his desk at police headquarters three times since June 8, 2014. His computer screen would have been visible to other people in the office. There is no evidence that anyone else actually saw the video of the search of Mr. Odesho. However, in viewing the video in an open area accessible to other people, Constable Booker failed to take any steps to protect Mr. Odesho’s privacy. On one occasion when he watched the video, Constable Rogers viewed it with him. Constable Booker testified that Constable Rogers turned away from the video when Mr. Odesho was in a state of undress.

[34] Further, the videotape was provided in edited form to Crown and defence counsel and was filed by the Crown on this application. Mr. Odesho’s genitals are concealed in this version of the video but all other areas of his body are visible, including at one point a portion of his buttocks.

[35] The York Regional Police Service (YRPS) had a command directive in place on June 8, 2014, governing the procedure to be followed during strip searches. This is a mandatory procedure that all officers are required to follow. The directive states that strip searches “shall not be recorded or displayed by any video recording device or monitor”. Clearly, the search of Mr. Odesho was conducted in contravention of this directive.

[36] Constable Seal was the officer who was in charge of operating the video equipment that recorded the search of Mr. Odesho. He had the ability to turn the video off at any time from his location in the monitoring room. Constable Seal had previously read the directive stating that a strip search was not to be recorded or displayed by any video device. It was clear before Mr. Odesho began taking off his clothes that it was the intent of the officers to have him remove all of his clothing during the process. Despite being aware of this and knowing the YRPS directive, Constable Seal did not turn the video off at any point during the search. When asked why he did not turn off the video once it was apparent that Mr. Odesho was going to remove his clothes, Constable Seal said that he had forgotten about the directive.

[37] Constable Booker initially maintained that the directive was not applicable because in his mind he did not conduct a strip search of Mr. Odesho. He was adamant in this position until he was cross-examined on the definition of strip search contained in the directive, which is consistent with Golden. Constable Booker eventually conceded that he did, in fact, conduct a strip search of Mr. Odesho within the meaning of Golden and the YRPS directive, and that he ought to have followed the procedures contained in the directive.

[38] As the lead homicide officer, Detective Cheung was responsible for making the investigative decisions on June 8, 2014. He acknowledged that when he ordered the seizure of all of Mr. Odesho’s clothing, he knew he was putting into motion a process that would result in Mr. Odesho being completely naked. Detective Cheung agreed that the search should not have been videotaped. However, he took no steps to ensure that it was not.

[39] When asked why he did not give any direction in this regard to Constables Booker, Rogers or Seal, Detective Cheung testified that he simply assumed they would be aware of the YRPS directive and would follow it. The failure on the part of Detective Cheung to make sure that the search he ordered was properly executed, reinforces the need for strip searches to be authorized by an independent supervisor. Had the Staff Sergeant in charge of the police station been notified of the fact that one of the prisoners under his control was going to be strip searched, that officer almost certainly would have given the searching officers directions about how to carry it out in accordance with the directive. It would have been the Staff Sergeant’s duty to do so.

[40] In R. v. McGuffie, 2016 ONCA 365, the fact that three police officers were present and the interview room door was open during the strip search was found to be a violation of Section 8 of the Charter. The court held that the police failed to take reasonable steps to minimize the inherently humiliating and degrading impact of the strip search on the accused (at paragraph 58). In my view, there is no meaningful distinction between unnecessary officers being present in the room during the search, as they were in McGuffie, supra, and officers viewing the search in its entirety via video as occurred in this case. The result is the same. The inherent humiliation of being naked and having one’s genitals exposed is made worse when it is witnessed in any manner by additional people.

[41] Similarly, in R. v. Muller, 2014 ONCA 780, the fact that a strip search was videotaped and available for viewing by others was one factor that led to the conclusion that the search was not carried out in a reasonable manner.

[42] While I understand the concern of the police about being criticized for failing to keep a complete record of all of their interactions with a prisoner, in light of cases such as R. v. Moore-McFarlane, 2001 ONCA 6363, the videotaping of strip searches does not comply with the guidelines established in Golden. In order to avoid unfounded allegations of threats or physical violence during the strip search, the process could be audiotaped in its entirety.

[43] In this case, I find that the fact that Mr. Odesho was videotaped in a state of total nudity rendered the manner in which the strip search was conducted unreasonable. His rights as guaranteed by Section 8 of the Charter were violated by the fact that he was strip searched at all, and by the manner in which that search was carried out.

Section 24(2)

[44] Having found a violation of Section 8, I must consider whether the Applicant has demonstrated that the admission of the evidence would bring the administration of justice into disrepute. The court in R. v. Grant, 2009 SCC 32, set out the three factors that must be assessed in making this determination.

[45] The first is the seriousness of the Charter-infringing state conduct. An unauthorized strip search conducted in an unreasonable manner is very serious and militates in favour of exclusion. This is particularly so when the police officers carried out the search in direct contravention of a mandatory directive of the YRPS. In addition, this case involves more than one violation of Section 8. I have found that there were not sufficient grounds to justify the search and seizure in the first place. This breach was compounded by the fact that the illegal search was then conducted in a wholly inappropriate manner.

[46] It became apparent during the course of this application, that the members of the YRPS who dealt with Mr. Odesho did not turn their minds to the issue of protecting his significant privacy interests before or during the search. It was not just one officer who failed in his or her duties. Collectively, the officers involved in this investigation on June 8, 2014, as a group did not adequately consider or respect the Section 8 rights of Mr. Odesho.

[47] The second factor to be considered is the impact of the breach on the Charter-protected interests of the accused. As stated repeatedly in Golden, strip searches are inherently humiliating and degrading. In McGuffie, the court said that the significant negative impact of an unconstitutional strip search on a person is “obvious” (at paragraph 82).

[48] The final consideration is society’s interest in an adjudication of the matter on the merits. The Applicant submits that the GSR evidence in this case has very little probative value and is not essential to the Crown’s case. I agree. A successful prosecution of this matter depends on the evidence of Mr. Eyup, and to a lesser extent that of Mr. Dawood. While the fact that one particle of GSR was found on Mr. Odesho’s underwear might be viewed as some confirmation of the evidence of these two witnesses, for reasons that are fully explained below I do not find it to be reliable in the circumstances of this case. In addition, the exclusion of this evidence is not fatal to the prosecution.

[49] Balancing the three Grant factors, I conclude that admitting the evidence unlawfully seized from the Applicant would, on the facts of this case, bring the administration of justice into disrepute. Consequently, the underwear and the results of the analysis of them are excluded from evidence pursuant to Section 24(2) of the Charter.

The Gunshot Residue Evidence

[50] The test governing the admissibility of expert evidence was set out in R. v. Mohan, 1994 SCC 80 and clarified in R. v. Abbey, 2009 ONCA 624, and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The defence concedes that three of the four Mohan criteria are satisfied in relation to the proposed testimony of Dr. Lindsay in relation to the GSR on the underwear: the evidence is necessary to assist the trier of fact, it is not the subject of an exclusionary rule and Dr. Lindsay is a properly qualified expert.

[51] However, the defence submits that the presence of one particle of GSR on the accused’s underwear 48 hours after the shooting has virtually no probative value and is exceeded by its prejudicial effect. As a result, it does not satisfy the criterion of logical relevance as required by Mohan, supra. Further, it fails at the second stage of the inquiry as described in Abbey, supra, because its benefits do not outweigh its costs to the trial process.

[52] In contrast, the Crown’s position is that any weaknesses in the evidence affect its weight and not its admissibility. The Crown submits that the evidence is not technically complicated and that its significance can be assessed by the jury. In support of this position, the Crown relies on R. v. Stevenson, 2014 ONCA 5645. In Stevenson, the court dealt with the argument that GSR evidence should have been excluded because its prejudicial effect outweighed its potential probative value. In rejecting this submission, the court found that it was one piece of circumstantial evidence in the Crown’s case and could support the proposition that the accused had recently fired a gun. The GSR evidence had to be considered in the context of the case as a whole. The limits of the evidence and the other possible explanations for the presence of GSR were properly explained to the jury in the charge.

[53] As recognized by the court in Stevenson, supra, and by Dr. Lindsay in her report and her evidence at the preliminary hearing and on this application, GSR evidence has limitations. It can never be relied upon on its own to conclude that someone fired a gun. This is because there are always alternate explanations for its presence on a surface. Someone who is in the vicinity of a gun being fired may get GSR particles on their clothing or person. In addition, GSR particles are easily transferrable from one surface to another.

[54] With respect to transfer, the defence relies on a study co-authored by Dr. Lindsay that dealt with police officers (Robert V. Gerard, Elspeth Lindsay, Michael J. McVicar, E. Dale Randall & Agata Gapinska (2012), Observations of Gunshot Residue Associated with Police Officers, Their Equipment and Their Vehicles, Canadian Society of Forensic Science Journal, 45:2, 57-63). In this paper, the authors outline their findings of GSR particles on the hands, clothing, equipment and vehicles of police officers, who had not fired a gun on the day of the sampling. They conclude that suspects who have been in contact with the police could be exposed to GSR unrelated to the offence for which they are being investigated (at page 62). There is a real risk of transfer of GSR particles from police officers and police equipment to people in custody. For instance, 60% of the York Regional police officers who were sampled had at least one particle of GSR on their hands. Twenty-seven percent of the handcuffs sampled had at least one particle of GSR on them.

[55] The defence relies on this study to support its position that the single particle of GSR found on Mr. Odesho’s underwear has virtually no probative value. The reasons for this are as follows:

(a) There is no evidence that the accused was wearing this pair of underwear on the day of the shooting. Given the fact that he did not turn himself in to the police until 48 hours after the shooting, common sense would suggest he was wearing different underwear. Therefore, the particle of GSR could not have been deposited on the underwear at the time the gun was fired in the Baggio Café.

(b) The defence does not dispute the fact that Mr. Odesho was in the area of the café at the time of the shooting. According to Dr. Lindsay, being in the area of a gunshot can result in a person getting GSR on his clothes or body. One study demonstrated that GSR particles can travel up to 60 feet from a firearm. Further, GSR particles can linger in the air for approximately 10 minutes after a gun is fired.

(c) It is beyond dispute that there was GSR in the white Mazda. One particle was found on the sample taken from the car’s gearshift, which Mr. Odesho would have touched when he was driving the car after the shooting. It is highly possible that GSR particles from the gearshift were transferred to Mr. Odesho’s hands or clothing.

(d) It is the defence position that Mr. Dawood is the shooter. If Mr. Dawood fired a gun, it is reasonable to believe he would have had GSR particles on his clothing and body. Some of those particles could have been transferred to the car or to Mr. Odesho in the minutes after the shooting.

(e) Mr. Odesho was handcuffed after he was placed under arrest at the police station on June 8, 2014. The defence submits that based on Dr. Lindsay’s study, there is a 27% chance that the handcuffs had at least one particle of GSR on them.

(f) The officer who arrested and handcuffed Mr. Odesho was not wearing gloves initially. He handled his firearm approximately an hour before coming into physical contact with Mr. Odesho. When he patted Mr. Odesho down after the arrest, the officer spent a fair bit of time touching the clothing around Mr. Odesho’s waist in order to remove a drawstring from his shorts. Based on Dr. Lindsay’s study, there is a 60% chance that the officer had at least one particle of GSR on his hands that could have been transferred to Mr. Odesho.

[56] The defence asserts that because there are so many possible explanations for the presence of the single GSR particle on the accused’s underwear, the evidence is not logically relevant to an issue at trial. It cannot support the proposition that the accused was the shooter. As a result, it does not meet the relevance criteria required by Mohan.

[57] In contrast, the Crown’s position is that one possible inference to be drawn from the presence of the GSR particle is that Mr. Odesho was the shooter. As noted in Abbey, relevance simply means that the evidence has a tendency - as a matter of experience and logic, to make a fact more or less likely than it would be in the absence of the evidence. As a result, there is a low threshold for admissibility (at paragraph 82). In R. v. Luciano, 2011 ONCA 89, Watt J.A. explained that in order to be relevant an item of evidence need not conclusively prove the proposition for which it is being offered. It is sufficient if it makes the fact even slightly more probable (at paragraph 206).

[58] The Crown submits that applying this low standard for threshold admissibility, the particle of GSR on Mr. Odesho’s underwear does meet the Mohan test. It will be open to the jury to infer that the particle was deposited on the clothing at the time of the shooting, or that it was transferred to the underwear by Mr. Odesho who had GSR particles on his hands because he had fired a gun. The jury can assess the other possible explanations for the presence of the GSR particle and determine what weight, if any, to put on the evidence.

[59] In addition to Stevenson, the Crown relies on the decision of the Court of Appeal in R. v. Carroo, 2010 ONCA 143, which held that even in the face of alternate explanations for the presence of GSR particles, the evidence was properly considered by the trial judge as part of the entire case on the issue of identification.

[60] The facts in both Stevenson and Carroo are quite different than those in this case. Mr. Carroo was arrested within a very short time of the shooting, while he was still in the general area. Twenty particles of GSR were found on samples taken from his hands. Mr. Stevenson was arrested two hours after the shooting he was charged with, and was found to have a total of 24 GSR particles on his hands and three on his clothing. In both cases, the evidence had significantly more probative value than does the presence of a single particle of GSR on underwear worn 48 hours after the shooting.

[61] The possibility that the GSR was innocently transferred to the accused in the Stevenson and Carroo cases was greatly reduced by virtue of the number of particles found on each of them. In addition, there was no evidence that either of them had been in an environment that was contaminated with GSR, as the white Mazda was in this case. The fact that Mr. Odesho was in a car that had GSR in it makes the possibility of transfer more than speculative.

[62] This case more closely resembles the facts in R. v. Moore, 2015 ONSC 3037. In that case, the Crown sought to adduce evidence that four particles of GSR were found in the car that was used in the shooting. However, the car was not seized and searched until 14 months after the shooting. Dambrot J. recognized that in many cases, the presence of GSR in a vehicle would be admissible as circumstantial evidence that a gun was fired in it. While there is always the possibility of transfer in relation to GSR, the facts of a case may limit or reduce the likelihood of an innocent explanation for the presence of GSR, thus making its presence relevant and admissible as one part of the Crown’s case (at paragraph 12).

[63] In Moore, supra, Dambrot J. identified a number of facts which significantly limited the value of the GSR evidence, including evidence that Mr. Moore had contact with firearms on dates other than the shooting. His possession of guns on other occasions provided an explanation for the presence of GSR in his car that was more than hypothetical. Dambrot J. distinguished Stevenson on the basis that when examined in the context of all of the evidence in that case, the presence of GSR could properly be used by the jury to determine the identity of the shooter. In contrast, given the compelling alternate explanations for the presence of GSR in Mr. Moore’s vehicle, Dambrot J. found that the evidence could not assist the jury in determining the identity of the shooter because they would be unable to reach any conclusion about how or when it got in the car.

[64] While Mr. Odesho did not have nearly as much exposure to firearms as Mr. Moore did, there are viable alternate explanations for the presence of one particle of GSR on his underwear. Specifically, he was in the area of the café at the time of the shooting and he drove the white Mazda which was found to have a particle of GSR on its gearshift. This is a very different situation than those in Stevenson and Carroo, where a significant number of GSR particles were found within a short time of the shooting.

[65] There is no evidence that Mr. Odesho was wearing the underwear in question on the day of the shooting. The fact that one particle of GSR was found on them 48 hours after the shooting, cannot advance the Crown’s case in light of the undisputed alternate explanations. The presence of one GSR particle on the accused’s underwear does not make it even more slightly probable that he was the shooter, in the circumstances of this case. As a result, the evidence does not satisfy the relevance criteria of Mohan and is inadmissible.

Conclusion

For the foregoing reasons, the evidence of Dr. Lindsay about finding one particle of GSR on underwear seized from Mr. Odesho during the course of a strip search is inadmissible for two reasons. First, the search and seizure was conducted in contravention of Section 8 of the Charter because there were not reasonable grounds to justify it and it was carried out in an unreasonable manner. This evidence would have been inadmissible even if it had been lawfully obtained, because it does not satisfy the relevance criteria required for expert opinion evidence.

Justice L. Bird

Released: September 9, 2016

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral ruling read into the record. If any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.