CITATION: R. v. Browne, 2017 ONSC 5050
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
ENDORSEMENT
Procedure re: 24(1) Application
Overview
[1] Steven Browne, Amal Greensword and Adrian Williams are on trial for first degree murder.
[2] The Crown’s theory is that the deceased, Dwayne Thompson, was lured to 7230 Darcel Avenue, Mississauga by Mr. Greensword to complete a drug transaction. Instead of completing the transaction, Mr. Thompson was accosted by a group of men and shot four times. Mr. Thompson died at the scene.
[3] The coroner who examined Mr. Thompson’s body took fingernail clippings from Mr. Thompson’s hands. These clippings were sent to the Centre of Forensic Sciences (CFS). DNA was detected on the fingernail clippings and, as a result of testing conducted by the CFS, the recovered DNA was compared to DNA samples in the National DNA data bank.
[4] Dr. Popovic, a scientist, is a Crown witness. Dr. Popovic has produced a report dated January 11, 2013, where she concludes that Mr. Browne cannot be excluded as the source of the DNA recovered from Mr. Thompson’s fingernails.
[5] During the analysis and the comparison of the DNA found on the clippings, the CFS used a bio-chemical agent referred to as a “negative control”. Counsel for Mr. Browne made a disclosure request for a portion of the negative control that was used. However, on September 22, 2016, counsel was notified that the negative control sample had been consumed by the CFS.
[6] On November 8, 2016, counsel filed a Notice of Application seeking a section 24(1) Charter remedy as a result of an alleged breach arising from the consumption of the negative control.
The Issue
[7] The Crown seeks directions as to how the Charter application should proceed.
The Positions of the Parties
[8] The Crown argues that I should determine the relevancy of the unavailable negative control in advance of Dr. Popovic testifying. Mr. Cornelius argues that if relevance cannot be established, the Charter application should be summarily dismissed.
[9] Furthermore, if relevance has been established, the Crown argues that I should then go on to determine if the negative control agent is primary disclosure (i.e. pursuant to the leading case, R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326) or material that was held by a third party (i.e. the CFS). The Crown argues that cross-examination of Dr. Popovic on the issue of the negative control agent should only be permitted if I find that the negative control was primary disclosure over which a duty to preserve existed, or the negative control was an item held by the CFS that was intentionally disposed of to interfere with the course of justice.
[10] Ms. Morphew, for the accused, submits that the Crown’s request for an advance ruling as to relevancy is misplaced. Counsel argues that the proper time to determine all of the issues related to the Charter application is at the end of the trial. Only then will the Court have the full evidentiary context to make proper findings. Counsel argues that the Crown’s submission is really an attempt to prevent the defence from cross-examining Dr. Popovic on various quality assurance practices in place at the CFS - including use and consumption of the negative control.
[11] In my view, Dr. Popovic can be cross-examined by defence counsel on the procedure that was used to analyze and compare the DNA samples extracted from the clippings to the DNA of Mr. Browne. Questions about the negative control and the consumption of the negative control naturally flow from questions regarding the process of DNA extraction and comparison, and are relevant questions for the purpose of cross-examination. For the reasons that follow, I agree with Ms. Morphew that I should not restrict the cross-examination of defence counsel.
Analysis
[12] At the outset I remind myself that the Supreme Court of Canada has held the right of cross-examination must be “jealously protected” and “broadly construed”. While the right is not absolute, the questions asked of a witness must be relevant. However, I have a broad discretion to ensure fairness. In the exercise of that discretion, I may sometimes think it right to somewhat relax the rules of relevancy. See R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 44-45.
[13] Is the issue of the negative control relevant?
[14] The Crown has framed their argument by inviting the Court to ask the following question: Is the unavailability of the negative control relevant? If not, the Charter application should be dismissed.
[15] In my view, the more appropriate question is: Are questions about the negative control relevant at trial? The answer to that question is yes.
[16] Dr. Popovic is ultimately being called to provide an opinion that Steven Browne cannot be excluded as a source of DNA found underneath the deceased’s fingernails. No doubt, she will have to explain the reasons for her opinion. In doing so, the witness will refer to the process of extraction and comparison of the DNA. As part of the process, the witness either explicitly or implicitly will have to answer questions about the control sample. Indeed, the Crown concedes that Dr. Popovic made use of a bio-chemical agent, referred to as a “negative control agent”, designed to screen for contamination. If, as the Crown asserts, the negative control sample was used to prevent contamination, why would the Court restrict cross-examination on the nature of the control process, its use and whether the consumption of the control sample was an appropriate procedure? In my view, it should not.
[17] If the defence position is that the process for extracting and comparing DNA was flawed, it is for the jury to decide, after hearing Dr. Popovic’s evidence, if there is a real possibility that the results relied on by Dr. Popovic are not reliable and that they should give no weight to her opinion. Therefore, it seems to me that the integrity, accuracy and reliability of the process of analyzing and comparing DNA are proper areas to ask questions of Dr. Popovic. I see no principled basis to restrict cross-examination of Dr. Popovic on these issues. Any variation from standard procedures may affect the weight to be given to that evidence by the jury, and will be dealt with in the same manner as any other issues of fact, which arise in every jury trial.
[18] The Crown’s position that the Charter motion should be summarily dismissed because there is nothing in the defence materials that suggests that Mr. Browne’s right to make a full answer and defence has been in any way compromised as a result of the unavailable negative control is a rather circular argument. How can the defence point to anything if they do not know what Dr. Popovic’s answers will be to this issue? In my view, they cannot.
[19] I am also unable to accept the Crown’s argument that at this stage of the trial we should embark on a voir dire in the absence of the jury to determine this issue.
[20] In my view, I believe that the jurisprudence suggests otherwise. The Court of Appeal authority on this point holds that in lost evidence cases, if the appropriateness of a remedy is not obvious, a trial judge should properly reserve on the motion until all the evidence had been heard. It is only with the benefit of a full trial record that I can assess the degree of prejudice caused by the unavailability or loss of evidence. See R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 18; and see R. v. Dulude (2004), 2004 30967 (ON CA), 189 C.C.C. (3d) 18 (Ont. C.A.).
[21] I also believe the comments of Moldaver J.A. (as he then was) in an entirely different context are nevertheless apt in this situation (see: R. v. Harris (1997), 1997 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.)):
[38] Given the vagaries that all too often exist when trial judges are asked to make "advance" evidentiary rulings, it seems to me that as a matter of prudence, apart from perhaps stating a tentative view, trial judges should resist making final rulings until such time as they are required to do so. Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidence unfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial, an ounce of prevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time as they are required to do so. [Emphasis added.]
Conclusion
[22] Cross-examination about the negative control and the consumption of the control will be allowed at trial. I find these areas relevant and I decline to restrict cross-examination in them.
[23] I defer making any rulings on the Charter application until I can more effectively assess issues, such as the degree of prejudice caused to Mr. Browne by the consumption of the negative control, at the end of the trial. Whether the negative control sample is Stinchcombe first party disclosure or material in the hands of a third party will be determined as a threshold issue on the Charter application.
Coroza J.
DATE: February 3, 2017
CITATION: R. v. Browne, 2017 ONSC 5050
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
ENDORSEMENT
COROZA J.
DATE: February 3, 2017