Court File and Parties
COURT FILE NO.: CR-15-169 DATE: 20160921
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Mr. Michael Martin for the Provincial Crown and Mr. David Foulds for the Federal Crown
- and -
David Joachim D’Souza Ms. Vanessa Christie, for the Accused Accused
HEARD: September 19 & 21, 2016
REASONS FOR DECISION ON THE ADMISSIBILITY OF HANDGUN EVIDENCE
Conlan J.
I. Introduction
[1] David D’Souza stands charged on a multi-count Indictment. There are charges related to human trafficking, prostitution, possession of child pornography, pointing a firearm, threatening, weapons and narcotics.
[2] The accused is being tried in the Superior Court of Justice in Owen Sound, by a judge and jury. The jury has been selected. The trial is about to commence.
[3] Among other things, the complainant alleges that the accused had firearms and pointed one of them at her.
[4] In previous rulings on Defence Charter Applications, the Court excluded from evidence at trial a handgun seized from the accused’s parents’ residence in Scarborough. That house had been searched by the police under warrant. The search was found to have violated Mr. D’Souza’s section 8 Charter right.
[5] Before that search was conducted, the police had searched, under warrant, the accused’s residence in Owen Sound. Among the items seized were a manual and a receipt for a pistol. That search was found to have been Charter-compliant.
[6] It is common ground between counsel that the complainant may still testify about the handgun. Nothing herein disturbs that.
[7] The question is whether the Crown can elicit evidence at trial of the receipt and the manual.
[8] The Crown seeks a ruling on that question before the complainant testifies.
II. Analysis
What the Complainant told the Police about Firearms
[9] It is important to remember what it is, precisely, that the complainant told the police about the firearms.
[10] The discussion begins at page 80 of the transcript of D.P.’s audio-video statement to the police on May 29, 2014.
[11] Detective Daniels first mentions the firearms, stating that D.P. had told him earlier (off camera) something about the accused having guns.
[12] The complainant then states that “he’s held them up to our heads before” (page 80).
[13] Daniels asks her whether she remembers the gun. She replies “[y]es I do…he has a hand gun… [t]hat he keeps in a safe” (page 82). She adds that he also has a long gun (page 83).
[14] D.P. then tells the officer that it was a long gun that was used the first time that she was threatened with a gun (page 84).
[15] Later, she states that “we barely ever saw the hand gun ‘cause it was always in a safe” (page 85).
[16] When asked by Daniels to describe the handgun, she states that she thinks it was silver in colour (page 86).
[17] Finally, D.P. reiterates that “the hand gun was always in the safe”, and she barely ever saw it (page 87).
[18] Later in the interview, the issue of firearms is returned to, however, nothing material to these Reasons is stated at that time.
The Evidence sought to be Admitted
[19] Found and seized by police from inside a safe that was at the accused’s residence in Owen Sound were (i) an instruction manual for a Ruger SR1911 pistol and (ii) a receipt for the purchase of three items including a Ruger handgun SR1911.
Admissibility: the Balancing Exercise
[20] I accept that the pistol receipt, which has the name of the accused on its face, and the manual seized from the accused’s residence are relevant. Where they were seized from is also relevant.
[21] The documents themselves, as well as their location inside a safe at Mr. D’Souza’s home, could be treated by the jury as corroborative evidence capable of bolstering the credibility and reliability of the complainant’s account.
[22] I also accept that the manual and the receipt appear to match the handgun seized from the accused’s parent’s residence.
[23] On balance, however, I conclude that the prejudicial effect of admitting the said evidence (the receipt and the manual) outweighs its probative value.
[24] First, on probative value, I note that the date on the receipt (November 13, 2012) is proximate to but does not fall within the alleged offence period which begins, at the earliest for any of the charges, in February 2013.
[25] Second, also on probative value, my view is that the Crown does not need any evidence about a handgun to support the complainant’s allegation that the accused possessed firearms. Subject to other admissibility considerations, the prosecution will be able to rely upon the accused’s firearms licence seized from his residence and photographs of firearms extracted from electronic data analyzed by the police.
[26] Ultimately, there will be no argument from the Defence that there simply is no handgun in existence (Ms. Christie has indicated to the Court that she will not be making that argument).
[27] Nor does the Crown need any evidence about a handgun to support the complainant’s allegation that a firearm was pointed at her. I emphasize that the complainant, in a lengthy recorded statement given on May 29, 2014, never told the police that she was in any way threatened by the handgun specifically (as opposed to a long gun).
[28] Third, on prejudicial effect, the description of the handgun given by D.P. to Daniels is so vague that it would be dangerous for the jury to conclude that the receipt and the manual are related to the handgun that the complainant “barely” saw.
[29] Fourth, also on prejudicial effect, to admit the evidence of the receipt and the manual would invite the jury to speculate about the whereabouts of that firearm. Such speculation must be avoided. I cannot think of any reasonable mid-trial and/or final instruction that could be given to the jury to solve that dilemma. I certainly cannot tell the jury that a Ruger pistol was found at the residence of Mr. D’Souza’s parents.
[30] Fifth, further on prejudicial effect, to admit the evidence of the receipt and the manual would invite the jury to conclude that there is something illegal, in and of itself, about the accused possessing a handgun. Of course, there is not. In fact, Mr. D’Souza was lawfully entitled to possess a handgun.
[31] If the evidence of the manual and the receipt were admitted, I could instruct the jury that the accused was licenced to possess handguns, however, I would then have to give a fairly lengthy instruction about what limited use the jury could make of the receipt and the manual. There is a risk that the trial would be unduly side-tracked in to an investigation of this handgun.
[32] Finally, I am not persuaded that the manual and the receipt satisfy the test for admissibility as set out in the Supreme Court of Canada’s decision in R. v. Calder (1996), 105 C.C.C. (3d) 1.
[33] That test is summarized at paragraph 12 of the decision of the Court of Appeal for Ontario in R. v. Bisko, [1998] O.J. No. 782: only in very limited or very special circumstances will evidence ruled inadmissible under section 24(2) of the Charter at one stage in a trial be admitted at another point in the same trial. The query is whether circumstances have changed so as to alter the effect on the administration of justice if the evidence is admitted.
[34] Effectively, at least in terms of the impression to be left with the jury, the receipt and the manual are equivalent to the handgun itself that has already been excluded from the evidence at trial.
[35] There has been no change in circumstances since the Court’s earlier Charter rulings to justify a different conclusion regarding the effect on the administration of justice that would result from the admission of evidence related to the handgun.
III. Conclusion
[36] In summary, the handgun is only a very small and relatively unimportant part of the complainant’s overall allegations against the accused. It is not even the firearm that she alleges was pointed at her in a threatening way.
[37] The Crown has at its disposal plenty of other real evidence that it can rely upon to corroborate the complainant’s account, such as cocaine, cannabis marihuana, an empty bottle in the name of another alleged prostitute mentioned by the complainant to Daniels, other weapons, condoms, provocative photographs of D.P., a laptop computer, and a hotel key card.
[38] The probative value of the receipt and the manual, which documents relate to a firearm that the complainant herself is barely familiar with, is moderate at best.
[39] The prejudicial effect of admitting the said evidence is high and outweighs any probative value. Beyond the points outlined above, there is the overarching fact that the receipt and the manual would serve to try to compensate for the loss of the handgun itself, which firearm has been excluded as a result of very serious and repetitive violations of Mr. D’Souza’s Charter rights. That cannot be permitted.
[40] For the foregoing reasons, the pistol receipt and the manual are inadmissible at trial, as are any photographs of those items.
Conlan J. Released: September 21, 2016