CITATION: R. v. Browne, 2017 ONSC 5795
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 08 08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Alex Cornelius and Greg Hendry, for the Crown
- and -
STEVEN BROWNE, AMAL GREENSWORD and ADRIAN WILLIAMS
Anthony Bryant and Anne Marie Morphew, for Mr. Browne
Nicole Rozier and Leah Gensey, for Mr. Greensword
Maureen Addie and Jamie Kopman, for Mr. Williams
HEARD: Sept 12, 2016 to July 31, 2017
REASONS FOR TRIAL RULINGS
COROZA J.
[1] The accused were charged with first degree murder. Jury selection began the week of September 12, 2016. The trial ended on July 31, 2017, when I sentenced Mr. Browne and Mr. Greensword.
[2] During the trial, counsel raised issues which required rulings. In order to expedite matters, I ruled on some of these motions orally to assist counsel with their preparations. I undertook to provide complete written reasons for some of these motions.
[3] As the trial progressed, I released final written reasons dealing with some of the motions. The reasons below are the final written reasons pertaining to all other motions brought before and during the trial.
Trial Overview
[4] The three accused, Mr. Steven Browne, Mr. Amal Greensword, and Mr. Adrian Williams, were charged with first degree murder relating to the death of Dwayne Thompson on November 1, 2012.
[5] The Crown's theory was that Mr. Greensword set up a drug deal with Mr. Thompson. The deal was supposed to take place at an apartment building on Darcel Avenue in Malton, Ontario. Mr. Thompson arrived with Margaret Warner and Shawn Edwards. Mr. Edwards stayed in the car with the drugs and Mr. Thompson and Ms. Warner got out of the car to meet Mr. Greensword, known to them as Scarface. On their way to the apartment building, Ms. Warner observed some males running to a white car.
[6] When Scarface did not show, Mr. Thompson and Ms. Warner decided to leave. On their way back to the car, they were accosted by three or four males, one of whom shot Mr. Thompson four times with a handgun. Ms. Warner ran away. The Crown alleged that Mr. Thompson’s murder was planned and deliberate.
[7] The Crown alleged that Mr. Browne was the shooter, Mr. Greensword was Scarface, and Mr. Williams was at the scene and aided Mr. Browne and Mr. Greensword.
[8] The jury returned a verdict on March 24, 2017. The jury found Mr. Browne and Mr. Greensword both guilty of manslaughter. Mr. Williams was found not guilty. On July 31, 2017, I sentenced Mr. Browne to 96 months of imprisonment and Mr. Greensword to 102 months of imprisonment.
[9] Some of the rulings below were prepared before and during the trial. As a result, some rulings may refer to uncertainty as to how evidence at trial would unfold.
Ruling No. 1: Excusal of Prospective Juror during Jury Selection
(i) Overview
[10] Jury selection started in September 2016.
[11] Pursuant to s. 632 of the Criminal Code, judicial pre-screening of the pool of potential jurors took place. I gave opening remarks to the entire pool of prospective jurors about the process of jury selection. I explained to prospective jurors that if there were issues they wanted to raise about their ability to serve, they should come forward. For example, I told the pool that if they knew one of the parties, lawyers, or myself, they should come forward. I also described the challenge for cause process to the pool of prospective jurors.
[12] Following the judicial pre-screening of the pool, groups of 20 prospective jurors were drawn from the drum, ushered out of the courtroom, and were instructed to return at staggered intervals.
[13] Once a group had returned to the courtroom, I addressed the group of potential jurors in the presence of the Crown, the accused, and their respective counsel. I repeated the instructions relating to the challenge for cause process. The group was then ushered out of the courtroom and individual prospective jurors were called into the courtroom and were sworn or affirmed. Some raised issues and were excused by me. Each juror not excused was then challenged for cause and was found acceptable or unacceptable by the triers. If the jurors were found acceptable, counsel for each accused and the Crown were then asked if they wished to challenge the prospective juror peremptorily.
[14] On September 22, 2016, in the middle of jury selection, a prospective juror (62-27752) came into the courtroom to be sworn or affirmed.
[15] As soon as prospective juror 62-27752 was called into the courtroom, I was notified that the juror wanted to say something. In the presence of the Crown, the accused, counsel, and the jurors seated in the jury box, the following exchange took place:
Prospective Juror 62-27752: I have a bias that you should be aware of.
THE COURT: Yes.
Prospective Juror 62-27752: I believe that anybody in Canada that carries any kind of weapon has an intent or has used it before.
[16] After hearing this statement, I asked counsel for submissions. All defence counsel argued that an expanded challenge for cause question should be permitted. Up until that point, the challenge for cause question was restricted to the issue of racial bias.
[17] I asked counsel if there was jurisdiction to excuse prospective juror 62-27752 for “reasonable cause” pursuant to s. 632 of the Criminal Code. All parties agreed that I did have jurisdiction to excuse the juror pursuant to that section.
[18] Accordingly, I brought prospective juror 62-27752 back into the courtroom. In the presence of the jurors in the jury box, I told prospective juror 62-27752 that I needed jurors who would be impartial and would only base their decision on evidence presented at trial and the instructions of the trial judge. I excused prospective juror 62-27752 pursuant to s. 632(c) of the Criminal Code.
(ii) The Law
[19] Section 632(c) of the Criminal Code provides trial judges with broad discretion to excuse jurors. Section 632 expressly applies "whether or not . . . any challenge has been made in relation to the juror" and confers upon the trial judge the discretion to excuse jurors for "any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused." (see: R. v. Gayle, 2001 4447 (ON CA), 54 O.R. (3d) 36 (C.A.)).
[20] A trial judge has no authority to avoid the process mandated by the Criminal Code by assuming the power to decide contested issues of the partiality of prospective jurors (see: R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R 694). However, the jurisprudence is clear that trial judges have jurisdiction to excuse jurors for “obvious partiality” or consensual, uncontested matters of partiality (see: R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509; R. v. Hubbert, 1975 53 (ON CA), 11 O.R. (2d) 464 (C.A.) (aff’d 1977 15 (SCC), [1977] 2 S.C.R. 267)).
[21] In R. v. B. (A.), 1997 1902 (ON CA), 33 O.R. (3d) 321 (C.A.) at para. 105, Moldaver J.A. (as he then was) stated that s.632 codified the power to excuse prospective jurors for the matters of obvious partiality referred to in subsections (a) and (b), and granted a trial judges a more general power to excuse prospective jurors for other matters of obvious partiality. Moldaver J.A. also reaffirmed this principle in R. v. Krugel, 2000 5660 (ON CA), [2000] O.J. No 354 (C.A.) where he stated at para. 45 that “the words ‘any other reasonable cause’ are certainly wide enough to include the subject of juror partiality.”
(iii) Analysis
[22] I dismissed the application to hear submissions about an expanded challenge for cause question. I found that it was in my discretion to excuse prospective juror 62-27752 pursuant to s. 632(c) of the Criminal Code for the following reasons.
[23] First, prospective juror 62-27752 was obviously partial. The juror had received instructions from me during the pre-screening process to raise issues at the outset. Instead of raising the issue at that time, prospective juror 62-27752 waited until the process of jury selection had begun and to be in the presence of the jury before expressing an obvious bias. The juror stated that he “believed” that “anybody” who carried a weapon before had the intent or has used it before. The allegations in this trial involved first degree murder by shooting.
[24] Second, at the time the juror was called forward, we were on the last group of 20 prospective jurors and were near the end of a lengthy jury selection. It was in the interests of everyone involved to complete jury selection and ensure that there were no further outbursts from this juror about his obvious bias. The open bias expressed by prospective juror 62-27752 in the presence of the jury was concerning. I believed that prospective juror 62-27752 had to be dealt with firmly, quickly, and fairly.
[25] The alternative remedy was to entertain submissions about an expanded challenge for cause. This process would delay jury selection. Mr. Bryant, counsel for Mr. Browne, recognized the delay that would result if I had permitted further submissions on an expanded challenge for cause when he stated:
…And it seems to me, maybe for purposes of trial efficiency and we might be otherwise keeping our 12 jurors that we do have in place, sort of cooling their heels so to speak in an anteroom unnecessarily. If your [sic] Honour’s of the view that given the manner this prospective juror presented himself and it just came right out and it was obviously at the top-forefront of his mind that if your Honour were to go this way, you wouldn’t get any objection from this [sic] corner.
[26] Third, in light of the remarks made by prospective juror 62-27752, it is highly likely that had the juror been found acceptable by two triers, defence counsel would have used one of their peremptory challenges to remove the juror from the jury. I did not want defence counsel to waste a peremptory challenge on a prospective juror who was obviously partial.
[27] On September 22, 2016, the day I ruled orally on this motion, I told counsel that Sharpe J.A.’s remarks in Gayle at para. 52 applied to this situation:
I would add that it seems to me highly desirable that trial judges be accorded a measure of discretion to ensure that the jury selection process proceeds in a fair and efficient manner. In Hubbert, at p. 476 O.R., p. 291 C.C.C., this court referred to the principle "that the trial Judge has a wide discretion and must be firmly in control of the challenge process". The jury selection process, and especially challenges for cause, are bound to produce unforeseen and unforeseeable contingencies that require immediate practical resolution. The paramount concern must be to ensure that an impartial jury is selected. [Emphasis added].
(iv) Conclusion
[28] Based on the three reasons articulated above, I excused prospective juror 62-27752 pursuant to s. 632(c) of the Criminal Code. I did not permit an expanded challenge for cause question.
Ruling No. 2: Severance of Accused
(i) Overview
[29] Ms. Rozier and Ms. Addie, counsel for Mr. Greensword and Mr. Williams, respectively, sought an order that would sever Mr. Browne from this trial. The foundation for this motion was due to delay caused by a health-related personal crisis of Mr. Browne’s lead lawyer, Mr. Bryant. This situation prevented the trial from completing in a timely manner. The collective submission made by both Ms. Rozier and Ms. Addie at the time of the application was that Mr. Bryant’s illness caused prejudice to Mr. Greensword and Mr. Williams.
[30] I dismissed the application on November 22, 2016.
(ii) Factual Background
[31] On behalf of Mr. Browne, Ms. Morphew requested an adjournment of the trial to January 9, 2017. It is not necessary for me to repeat the evidence that I considered in this application. It is set out in my ruling of November 22, 2016. One of the exhibits is sealed to protect the sensitive and confidential nature of the medical information disclosed by Mr. Bryant. In summary, Mr. Bryant became ill during the trial. Surgery was scheduled for December 16, 2016, and Ms. Morphew advised the Court that Mr. Bryant would return on January 9, 2017. Mr. Browne took no position on the severance application.
(iii) The Law
[32] The Court has wide discretion to sever counts or accused. The Court’s discretion is grounded in s. 591(3) of the Criminal Code, which provides:
The court may, where it is satisfied that the interests of justice so require, order
(a) that the accused or defendant be tried separately on one or more of the counts; and
(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.
[33] The onus rests on Mr. Greensword and Mr. Williams to satisfy me, on a balance of probabilities, that severance should be granted.
[34] As set out in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 at para. 18, factors that courts can use to determine whether severance is appropriate include:
• The general prejudice to the accused;
• The legal and factual nexus between the counts;
• The complexity of the evidence;
• Whether the accused intends to testify on one count but not another;
• The possibility of inconsistent verdicts;
• The desire to avoid a multiplicity of proceedings;
• The use of similar fact evidence at trial;
• The length of the trial having regard to the evidence to be called;
• The potential prejudice to the accused with respect to the right to be tried within a reasonable time;
• The existence of antagonistic defences as between co-accused
persons
[35] The court has discretion when considering severance applications. This exercise often requires the balancing of a number of competing interests.
[36] This is a joint trial of three men who were allegedly involved in the death of Mr. Thompson. Identification and the respective roles that each have played in the shooting was very much a live issue.
[37] There is strong jurisprudence which emphasizes the desirability of having one jury deal with the case. Justice Doherty in R. v. Suzack, 2000 5630 (ON CA), [2000] O.J. No. 100 (C.A.), indicated that the general rule is that there will be a joint trial in such cases unless it appears that an injustice to one accused will result from the attempts to reconcile the respective rights of the co-accused.
[38] As held in Last at para. 16, I acknowledge that one of the concerns that I must consider is society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner.
(iv) Factual Findings and Analysis
[39] In addition to the facts I heard on November 22, 2016, I want to highlight some other factual findings.
[40] First, this case is factually and legally complex. Identification is a live issue and there are issues involving party liability. There are a number of witnesses who have been called by the Crown.
[41] Second, the jury has indicated they are prepared to see this trial right to the end.
[42] Third, if the application is granted, it will mean that Mr. Browne will have to be tried separately. There are compelling reasons to try him jointly with his co-accused. The most compelling reason is that the Crown witnesses who have testified and will testify in this trial will have to testify again in Mr. Browne’s trial. Some witnesses are police officers, but most are not. Ms. Warner, a key witness, would be put through the experience of having to testify a second time. Ms. Warner’s testimony has already been interrupted because of Mr. Bryant’s illness. I do not expect a trial with Mr. Browne to be much shorter. Mr. Bryant and Ms. Morphew have defended their client vigorously. There are very strong public interest reasons for avoiding a multiplicity of proceedings.
[43] Finally, in my view, although the delay was unfortunate, it was beyond the control of any party and was an exceptional circumstance. Criminal litigation does not occur in a perfect world. Things happen to the parties that cannot be anticipated.
(v) Conclusion
[44] At the end of submissions, I was satisfied I was left with three options.
[45] First, order severance.
[46] Second, inform the jury that the trial, which was originally scheduled to end in March, could end in April, and determine whether the jury had any issues with the delay. If no issues were voiced, I would dismiss the severance application.
[47] Third, force Mr. Browne to proceed with Ms. Morphew as his lead counsel.
[48] I chose the second option. The jury expressed no concerns about the delay. I also told counsel in my ruling on November 22, 2016 that if there appeared to be any concern about Mr. Bryant returning on January 9, 2017 then I would consider revisiting my ruling.
[49] Fortunately, Mr. Bryant was able to return to the trial on January 9, 2017.
[50] Ms. Rozier and Ms. Addie alleged that unfairness would result from the large time gap in presentation of evidence. Furthermore, both counsel submitted that there was a danger that the jury may become less engaged with a delay of the trial. I was satisfied that the while the gap in the evidence was a relevant concern, it was not a concern that could not be dealt with by way of summarizing the evidence in my charge to the jury. I was also confident that the jury was prepared to work hard and, notwithstanding the delay in the proceedings, remained fully committed to this trial.
Ruling No. 3: Mr. Browne’s Section 24(1) Charter Application
(i) Overview
[51] The coroner who examined Mr. Thompson’s body took fingernail clippings from his 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 used in this case.
[52] Dr. Maja Popovic, a scientist who works at the CFS, was a Crown witness. Dr. Popovic produced a report dated January 11, 2013, where she concluded that Mr. Browne cannot be excluded as the source of the DNA recovered from Mr. Thompson’s fingernails.
[53] 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 had been consumed by the CFS during the analysis of other unrelated samples.
[54] On November 8, 2016, counsel for Mr. Browne filed a Notice of Application. The application sought a declaration and order that the consumption of the negative control amounted to lost evidence and resulted in a breach of Mr. Browne’s rights pursuant to sections 7 and 11(d) of the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. The application sought a remedial order pursuant to section 24(1) of the Charter for actual prejudice suffered by Mr. Browne that resulted from the loss of the evidence.
[55] I dismissed the application on March 5, 2017.
(ii) Factual Background
[56] During the autopsy of Mr. Thompson, fingernail clippings were taken from his right and left hands. Both sets of clippings were sent to the CFS. The CFS conducted an examination on the clippings. In a report dated January 9, 2013, Dr. Popovic concluded that in addition to DNA attributed to Mr. Thompson, there was a minor DNA contributor in the DNA extract from the left hand fingernail clippings of Mr. Thompson. In a report on September 11, 2013, she could not exclude Mr. Browne as a source of this minor contributor.
[57] Both right and left hand fingernail clippings were processed in one group-Batch (C121129). Within this batch were other evidentiary samples from other unrelated cases. In addition to the evidentiary samples, the batch contained two negative controls.
[58] Dr. Popovic testified that negative controls are used to control for contamination in substances used in the DNA analysis. These substances are added to the evidence samples as part of the testing process.
[59] CFS looks for the expected results from these controls every time they use them. The expectation is that there will be no DNA found in that negative control.
[60] In the case of the analysis of the items that are in issue in this case, Dr. Popovic examined the controls to ensure that there was no contamination. She testified that both the negative controls that were used at various stages of the DNA analysis process performed as expected, meaning there was no DNA detected.
[61] On August 12, 2016, counsel for Mr. Browne served all parties with a Notice of Intention to Call Expert Opinion Evidence for Valerie Blackmore in the area of forensic biology. On August 24, 2016, counsel for Mr. Browne made a request to the Crown asking for a portion of the remaining DNA extract from the fingernails to be released to Ms. Blackmore for independent scientific testing. An extract was sent to Ms. Blackmore and received on September 1, 2016.
[62] On September 21, 2016, counsel for Mr. Browne then requested a portion of the negative control so that it could re-tested.
[63] According to counsel for Mr. Browne, this re-testing of the negative control is necessary to inquire into whether the batch was contaminated in any way and to ensure that any results from independent testing of the extract would meet international standards.
[64] However, it was disclosed that the negative control had been consumed by December of 2012. Of note, Mr. Browne had not been arrested in December 2012.
[65] On February 9, 2017, Dr. Popovic was called as a Crown witness and was qualified by the Court as an expert in the areas of “interpretation and analysis of DNA”.
[66] Dr. Popovic was cross-examined extensively by Ms. Morphew. During her skillful cross-examination, Ms. Morphew obtained the following concessions from Dr. Popovic.
[67] First, the CFS is accredited by the American Society of Crime Laboratory Directors (ASCLD). An accredited lab is one that has received formal recognition that it meets or exceeds a list of standards, including the FBI Director’s Quality Assurance (QA) Standards.
[68] Second, Dr. Popovic agreed that Standard 9.5 of the ASCLD’s Quality Assurance Standards for Forensic DNA Testing Laboratories requires negative amplification controls and reagent blank controls. Dr. Popovic further agreed that the FBI QA Standard 9.5.3. requires the following:
If a laboratory uses multiple amplification test kits and the laboratory has depleted its reagent blanks associated with the extraction set or sample being amplified, a laboratory shall not continue on to a different amplification test kit without a reagent blank.
[69] Third, the CFS policies speak to independent testing. Where possible, the CFS is to preserve evidence samples for independent testing. Typically, a request made to the CFS for independent testing comes from the defence.
[70] Fourth, independent testing includes repeating the same tests done by CFS and also additional or different tests.
[71] Fifth, Dr. Popovic agreed that the use of a negative control is an important quality assurance step. This step is generated at the beginning of the process as extraction occurs immediately after the “examination of the exhibit”.
[72] Sixth, Dr. Popovic conceded that in the case of the CFS conducting independent testing of a DNA sample, if the negative control was available from the other lab then ideally she would want that provided to CFS.
[73] Seventh, she also acknowledged that the negative control sample, if released to the defence, could be tested by the defence. Dr. Popovic also acknowledged that this testing could have been more sensitive and that such testing and re-testing may or may not produce evidence of contamination.
[74] However, Dr. Popovic repeatedly disagreed with Ms. Morphew that the defence required the original negative control to assess her work. For ease of reference, I reproduce some passages of the cross examination.
Q. And so you would agree that if a sample was to undergo additional testing in a different amplification kit, that the original negative extraction control should be reanalyzed?
A. Yes, if that retesting is being done by the same laboratory that has performed the extraction and introduced the reagent blank controls, then yes that would apply.
Q. And so I’m going to suggest that there are two consequences of the fact that this no longer exists: and that the first is that it would prevent an independent lab from complying with the quality assurance standards of retesting that blank?
A. I disagree.
Q. So you told us that for CFS to comply with the standards, you – and I’m not saying you personally, but the second blank was reanalyzed when YSTR was done?
A. Correct.
Q. And that that would be to comply with the standard?
A. Correct.
Q. So when an independent lab hired by the defence were to conduct their own test in their own amplification kit, which are different, I’m going to suggest they would need the negative just like CFS needed it?
A. I disagree, and I would - I would argue that that specific standard you referred to in the discussion really refers to the laboratory that has conducted the analysis on the sample from the initial stage which would be extraction. It does not necessarily apply to other laboratories that may - that may conduct testing on that sample at later stages of DNA analysis.
Q. So the standards are only for the one lab, is that your evidence?
A. My evidence is that the standard applies to the laboratory that initiates that control at the stage of extraction.
Q. And I’m going to suggest that what the second consequence of there being no negative control to release for independent testing is that the defence can’t check the negative control for contamination?
A. The results of negative control testing have been provided on request.
Q. And my question is that if the defence wanted to do independent verification, keeping in mind that reproducibility and duplication are important to scientific reliability, we can’t do that because CFS consumed everything?
A. Reproducibility is – primarily refers to experimental settings where the lab is in a position to recreate all the aspects and all the samples they are testing. The nature of the work in a forensic laboratory is that a lot of the samples that are tested cannot be replicated and there isn’t sufficient material to retain - may not be sufficient material to retain for replica testing. That is simply the nature of our work.
Q. So if the [independent] lab wanted to test the negative at a more sensitive level to see whether there was contamination in that batch, that can’t be done?
A. That can’t be done, but the results of that testing have been provided. That testing has already been done in our laboratory and the results have been provided.
Q. And if the independent lab found that there was in fact contamination in your extraction blank, you’re saying that - you wouldn’t even consider that, you wouldn’t look back anything you did?
A. The fact that - okay. The key here is that the extraction blanks, going back to what we said earlier, they are treated the same as the evidence samples. So that was done in this case. We treated the extraction blanks the same way we would – treated the evidence sample. So therefore, the results of those extraction blanks are directly applicable to the results from the evidence samples. Whatever testing an independent lab would do on an extraction blank would not be applicable to test results obtained in our laboratory. As you mentioned yourself that testing may be more sensitive. And, therefore, those results would not apply to testing done in our laboratory.
Q. And so I guess what I don’t understand is how evidence that there was contamination in that extraction batch isn’t relevant to the work that you did?
A. If a vastly more sensitive test is used on an extraction blank and an evidence sample, those results are not relevant because our testing is less sensitive. We’re not going to see those results. If there is something in the background that we are not seeing in the extraction blank, we are also not going to see it in the evidence sample and therefore it’s not going to affect the interpretation of that evidence sample.
Q. So you won’t....
A. What you can’t see cannot affect your interpretation because you’re interpreting only the things that you see.
Q. So you don’t care about contamination that you can’t see?
A. I’m not saying I don’t care. I’m saying it doesn’t affect the interpretation of the analysis that we conduct.
Q. And so if there was evidence of contamination in this batch, you’re saying because it would have come from a more sensitive test you wouldn’t do anything differently or take that into account?
A. I - it would not change the interpretation of the results.
Q. But it might change the reliability of your results?
A. No, it wouldn’t because in the test that we conducted, that contamination was not evident in the control, and therefore would not have been evident in the sample and would not have affected the interpretation of the sample result.
Q. And so if there was in fact contamination somewhere along the lines, as long - it’s just never going to change the reliability in your eyes of your results?
A. Again, the reliability of my results among other things relies on the results of the negative extraction control which in our hands tested the same way as the evidence sample showed no contamination.
Q. And the defence isn’t in a position to challenge that?
A. No, but my results can only be affected by - by the results that are obtained from the extraction control which were done in parallel. So in evaluating my results, the only thing that matters is the way that extraction blank behaved in our lab.
Q. And the reason that the defence can’t challenge that with other evidence is because CFS used the entire blank?
A. Again, if - if another lab is to challenge the evidence – or rather the results generated in our laboratory, the only relevant extraction blank results are those generated in our laboratory.
Q. You can’t foresee that someone charged with murder might want to do their own independent testing?
A. The lack of this extraction negative control does not prevent an independent lab, barring their own policies and procedures, from conducting independent testing.
[Emphasis added].
(iii) The Law
[75] Mr. Browne claims a breach of his s. 7 and 11(d) Charter rights based on the loss of the negative control. My colleague, Code J., in a summary conviction appeal judgment, comprehensively set out the three kinds of Charter breaches that can occur when evidence is “lost” (see: R. v. Hassan, 2014 ONSC 1345, [2014] O.J. No. 988 at para. 9):
(i) First, a violation of the right to disclosure can be alleged.
(ii) Second, it can be alleged that the evidence was lost due to an “abuse of process”.
(iii) Third, a violation of the right to a fair trial can be alleged even if there is no unacceptable negligence by the state, or the material was never in the state’s possession, if the loss of a document is so prejudicial that it impairs right to make a full answer and defence.
[76] In R. v. Bero, [2002] O.J. No. 4199 (C.A.), Justice Doherty summarized the applicable principles relating to lost evidence 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.
(iv) Analysis
i) Failure to Disclose
[77] The primary argument advanced by Ms. Morphew is that there has been a violation of the right to disclosure. Ms. Morphew argues that CFS is required to take reasonable steps to preserve relevant evidence in criminal investigations. The creation of only two negative controls and the consumption of both were unreasonable and amount to lost or otherwise unavailable evidence. The end result is that Mr. Browne is unable to independently re-test the negative controls for contamination and to complete independent testing that meets international standards. Ms. Morphew argues that this end result constitutes a breach of Mr. Browne’s Charter rights.
[78] Ms. Morphew argues that the negative control is first party Stinchcombe disclosure. She submits that the negative control is relevant and since the relevant disclosure has not been provided by the Crown, the burden shifts onto the Crown to explain the lost disclosure. Ms. Morphew also argues that the Crown is unable to provide a satisfactory explanation which shows that the evidence was not destroyed or lost due to unacceptable negligence.
[79] Ms. Morphew seeks a remedy pursuant to s. 24(1) of the Charter. She requests an instruction to the jury that would reflect the principles set out by the Court of Appeal in Bero.
[80] Ms. Morphew argues that the jury ought to be informed that: the CFS had a duty to preserve relevant evidence, including the negative control; that it is not Mr. Browne’s fault that he cannot conduct proper independent re-testing of the sample; and that the jury ought to take this into account when assessing the reliability and credibility of Dr. Popovic’s opinion about the DNA, and whether the process was contaminated.
[81] The Crown submits that there is no breach of Mr. Browne’s section 7 Charter rights. Mr. Cornelius, counsel for the Crown, argues that the material sought was never in the possession of the Crown and it had no means of exercising control over the item sought. Therefore, the Crown bears no responsibility for its unavailability. Further, Mr. Cornelius argues that the CFS is not a division of the Crown or the police, and that its existence is independent of the Crown.
[82] The law is not in dispute.
[83] Section 7 of the Charter imposes a general duty on the Crown to disclose all information, whether inculpatory or exculpatory. The only exception to this duty is evidence that is beyond the Crown’s control, clearly irrelevant, or privileged: R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326. However, the obligation to disclose implies a duty to preserve evidence that is known to be relevant: R. v. Egger, 1993 98 (SCC), [1993] 2 S.C.R. 451 and Bero.
[84] There is no absolute right to original evidence. Per Stinchcombe, the Crown can only produce what is in its possession.
[85] If original evidence is unavailable but was in the Crown’s possession, the Crown should explain its absence. If the explanation is satisfactory, the Crown has discharged its disclosure obligation and there is no breach of s. 7 of the Charter.
[86] In assessing the explanation provided by the Crown, a trial judge must look at all of the circumstances surrounding the loss of evidence. The main consideration is whether the police or the Crown took reasonable steps to preserve the evidence. An important factor is the perceived relevance of evidence at the time of loss or destruction. If it is highly relevant, the degree of care required for its preservation increases. If the conduct is reasonable, then there is no breach of the disclosure obligation.
[87] Having considered the extensive submissions made by the parties, I respectfully disagree with Ms. Morphew’s very able argument. In my view, the Crown did not have possession or control of the negative control. I agree with the Crown’s equally able argument that the negative control is an analytical tool used by CFS that was never in its possession.
[88] While I agree that Dr. Popovic testified that pieces of evidence most likely to produce valuable information are indeed accepted by the CFS, her testimony does not suggest that the negative control was a valuable piece of evidence or that there was a duty to preserve the negative control. It seems to me that there is a distinction between the sample found on the fingernails and the tool used to analyze the sample. The former should be disclosed because it is evidence. I have concluded that the latter is not necessarily an item of evidence. Therefore, without the duty to disclose, there was no duty to preserve the negative control.
[89] I am also not persuaded that the CFS was acting as a state agency simply because it is a publicly funded agency that works closely with the Crown and the police. As the Supreme Court of Canada noted in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para. 13, “[t]he notion that all state authorities amount to a single ‘Crown’ entity for the purposes of disclosure and production must be quickly rejected”. I agree with the Crown that a demonstration of some association with the prosecution would not, in and of itself, create a uniting link that would transform the material sought into Stinchcombe disclosure.
[90] In R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, Justice Watt held that there are two principal factors that must be assessed before characterizing material as first party (Stinchcombe) disclosure or a record within the control or possession of a third party. At para. 91, Justice Watt stated that “the first [factor] has to do with the nature of the information of which disclosure/production is sought. The second concerns who is in possession or control of that information.”
[91] In this case, I do not agree that the negative control can be described as a “fruit of the investigation” into the shooting death of Mr. Thompson.
[92] The Crown does not intend to adduce the negative control as evidence against Mr. Browne. The Crown intends to introduce the opinion of Dr. Popovic. The reports and notes of Dr. Popovic have been disclosed. Counsel are free to share her work with their own expert, cross-examine Dr. Popovic on it, and call another expert in reply.
[93] Practically speaking, the defence is requesting disclosure of a tool that was used to analyze evidence gathered in this case. The negative control played no role in the acquisition of the DNA sample. It is the DNA sample that was tested. If available, a sample of the DNA should be disclosed, not the tool used to analyze it. Indeed, a portion of the DNA sample was preserved and disclosed to the defence counsel in this case.
[94] I have concluded that in this case, the negative control sought was not in the possession of the Crown. The negative control was something that was in the exclusive control of the CFS. The CFS is a third party for these purposes. Their possession and control of the negative control sought does not engage the first party disclosure scheme of Stinchcombe.
[95] Ms. Morphew relies on Justice Hainey’s decision in R. v. Prosa, 2015 ONSC 3122 (ONSC), [2015] O.J. No. 2707, where my colleague found that the CFS had an obligation to preserve a defendant’s blood sample in a motor vehicle collision case. The facts of this case can be summarized as follows:
• Mr. Prosa was charged with various impaired driving charges.
• Blood samples taken from Mr. Prosa were sent to the CFS. Mr. Prosa then requested the release of the remaining blood samples to independently test it. The CFS packaged the exhibit and shipped it to the independent lab. During transport, the blood leaked out and there was insufficient material remaining for testing to be undertaken. Mr. Prosa alleged his Charter rights had been infringed as a result of the unavailable evidence. The Crown disagreed that it was responsible for the actions of the CFS.
• My colleague, Hainey J., agreed with Mr. Prosa. In coming to that decision, my colleague relied on, among other facts, that if the police had had custody of the exhibit, they would have had an obligation to preserve it and that the CFS website makes it clear it supports the administration of justice, including law enforcement officers. My colleague found that the CFS was storing Mr. Prosa’s blood sample on behalf of the police, and it had the same obligations as the police to take reasonable steps to preserve this evidence. It would be unreasonable to conclude that an agency such as the CFS does not have a duty to take reasonable steps to preserve relevant evidence in a criminal prosecution.
[96] I do not think that Prosa assists Mr. Browne. First, the blood samples in Prosa are analogous to the fingernail clippings and the DNA found on the clippings. In this case, the items were collected by the police and turned over to CFS. While at CFS they were properly preserved. These items were available for disclosure. Indeed, an extract of the DNA sample has been preserved and disclosed. Second, the negative control was not in the possession of the police or the Crown. While it is true that Dr. Popovic explained that the exhibits belonged to the Crown, I do not think she was suggesting that the negative control samples were exhibits that were sent over to the CFS for examination. In my view, there is a significant distinction between exhibits that were sent for testing and the negative control. The former is being stored by CFS on behalf of the police and the latter is in the custody of CFS.
[97] Further, my colleague Justice Hainey did not have the benefit of Watt J.A. decision in Jackson. Watt J.A., at para. 82, reaffirmed the principle that the Stinchcombe disclosure regime extends only to material in the possession of the Crown that relates to the accused’s case. It only applies to “fruits of the investigation”, i.e., material that is gathered during the investigation of the offence for which the accused is charged with.
[98] I am not persuaded that the CFS was at all times acting as an agent for the police. I view Prosa as a case involving the failure to disclose first party disclosure. This case is distinguishable on the facts.
ii) Abuse of Process
[99] Based on the record before me, I find no abuse of process.
[100] Ms. Morphew argues that the CFS intentionally created only enough negative controls for their own purposes, thereby denying Mr. Browne access to the evidence. The controls were then used up before Mr. Browne could re-test them. Ms. Morphew argues that this is unacceptable negligence that can be attributed to the police and Crown.
[101] I respectfully disagree with this submission. Based on the facts, I do not find that the CFS deliberately used up the negative controls for the purpose of frustrating the administration of justice.
[102] Dr. Popovic testified that CFS does not ignore defendants and any potential for independent testing when consuming extraction batches. While she acknowledged that in an ideal world, they would double the number of controls compared to the number of samples, in reality, this approach was impractical. Dr. Popovic also explained that the standards do not mention providing additional controls for possible independent testing.
[103] Dr. Popovic explained that the policies do take into account defendants because CFS does preserve evidence samples for further disclosure if requested. Depending on the independent laboratories own policies and procedures and the standards they follow, an independent lab may or may not require a negative control. However, the absence of the original negative control does not prevent the laboratory from testing evidence samples that have been disclosed.
[104] As I have explained above, I do not consider the negative control as first party disclosure. A failure to preserve a tool used by the CFS to analyze the DNA sample in this case does not amount to an abuse of process.
iii) Inability to Make Full Answer and Defence
[105] It is my view that Mr. Browne has failed to present an evidentiary basis to conclude that the failure by CFS to disclose the negative control for re-testing impairs Mr. Browne’s ability to make full answer and defence.
[106] As Code J. points out in Hassan, the third kind of Charter breach that can arise from lost evidence focuses on the importance of the evidence and on prejudice, at both the violation stage and at the remedies stage. This breach does not require any kind of fault.
[107] Dr. Popovic made it clear that a review of her analysis was not dependent on the continued existence of the negative control. She also noted that even with the negative control, alternate tests conducted by another lab would not undermine the validity of the CFS’ procedure or her analysis. She explained that how the control behaved in an independent laboratory was irrelevant. The key issue was how the control behaved in the CFS laboratory.
[108] I agree with the Crown that Mr. Browne has not called evidence that tends to support a contrary position.
[109] It seems to me that the defence had all the tools that they needed to challenge the reliability of Dr. Popovic’s opinion. They had the disclosure. Presumably, the defence also had their own expert to call or could have called in order to support the assertion that the right to make full answer and defence was impaired as a result of the loss of the negative control for re-testing. Having chosen not to call any evidence, I cannot speculate what the defence expert could have done with this negative control and whether a more sensitive test conducted by an independent lab would have any impact on Dr. Popovic’s work or opinion.
(v) Conclusion
[110] The Application is dismissed. The control is an analytical tool used by a third party agency for the purpose of ensuring the quality of their work. It is not disclosure within the meaning of Stinchcombe, and therefore is not subject to the preservation obligation. There was no abuse of process based on the record before me. Finally, the right to make full answer and defence was not impaired by the failure to preserve the negative control.
[111] I also add that although I dismissed the application and did not give the jury a Bero instruction, I did raise with the jury two points. First, the defence did not have any burden to conduct independent testing. Second, the fact that the defence could not conduct independent testing on the negative control may affect the reliability of Dr. Popovic’s opinion and the weight that the jury places on it.
Ruling No. 4: Mid-trial Instruction Requested by Mr. Greensword Regarding Success Akonzee
(i) Overview
[112] The identity of Scarface was a key issue at trial. The Crown alleged that Mr. Greensword was Scarface. The Crown called Success Akonzee, a former girlfriend of Mr. Browne. She was asked to identify Mr. Greensword as Scarface while he was seated in the prisoner’s box. She positively identified Mr. Greensword during her examination in chief. She also confirmed that a hotel receipt in her name was found in a car that Mr. Greensword was associated with.
[113] During cross-examination, Ms. Akonzee clarified for the jury that she had only met Scarface once. Ms. Akonzee also agreed that she may have been mistaken and that she only saw Scarface on a photo through social media.
[114] Following re-examination, Ms. Akonzee confirmed that this was not the first time she had made an identification of Mr. Greensword. Ms. Akonzee agreed that she was shown a photograph of Mr. Greensword by the police during a police interview, where she identified him as Scarface.
[115] Ms. Akonzee testified on February 6 and 7, 2017. On February 11, 2017, Ms. Rozier requested that I give the jury a mid-trial instruction in relation to what she perceived to be an in-dock identification of Mr. Greensword. Ms. Rozier asked that I warn the jury about in-dock identification and that they should give no weight to the opinion of Ms. Akonzee in relation to her identification of Scarface.
[116] I observed that two other witnesses (Cst. Cutler and Dr. Popovic) had already been called since Ms. Akonzee testified.
(ii) Analysis
[117] I declined to provide a mid-trial instruction. I ruled that the proper time to give an instruction was in my final instructions. I did so for the following reasons.
[118] First, the issue should have been raised prior to the calling of Ms. Akonzee, or at the latest, when she was testifying. Ms. Rozier was well aware that Ms. Akonzee had previously identified Mr. Greensword as Scarface. This was done during her police interview where Ms. Akonzee wrote the alias on the back of his photograph. That photograph was then made an exhibit at the preliminary inquiry. A copy of that photo was confirmed by Ms. Akonzee and is an exhibit in the trial.
[119] The timing of this request was problematic. In my view, it would focus the jury’s attention on an issue of identification that the jury had already heard. A mid-trial instruction given five days later, after two witnesses had been called, would do nothing to alleviate any perceived prejudice.
[120] Second, the instruction requested would focus the jury on this portion of evidence and could potentially be prejudicial to Mr. Greensword. If I were to give the instruction requested, it seems to me that I would have to include evidence that supported her identification on this point, including: highlighting the presence of a receipt in her name found in the car and her prior identification of a photograph of Mr. Greensword as Scarface in her police interview.
(iii) Conclusion
[121] It is for the two reasons outlined above that I declined to instruct the jury mid-trial about Ms. Akonzee’s evidence. However, as I set out in my ruling on February 13, 2017, while I was not prepared to give a mid-trial instruction specifically in relation to Ms. Akonzee’s evidence, I was prepared to give them a mid-trial instruction warning them about the dangers of eyewitness identification evidence. This was to prevent the jury from putting any emphasis on Ms. Akonzee’s identification of Mr. Greensword as Scarface. For ease of reference, I will set out again what I told the jury:
[1] Members of the jury I want to mention something about eyewitness identification evidence. I am going to give you more detailed instructions about this in my final charge but for now I want to say this.
[2] You must be very cautious and careful when relying on eyewitness testimony to find anyone guilty of any criminal offence charged. In the past, there have been miscarriages of justice, innocent persons have been wrongly convicted, because eyewitnesses have made honest mistakes in identifying the person(s) whom they saw committing or are allegedly involved in a crime.
[3] Eyewitness identification may seem more reliable than it actually is because at times it may be given by a credible and convincing witness who honestly, but perhaps mistakenly, believes that the person charged is the person whom she or he saw committing the offence or is allegedly involved in the offence.
[4] Eyewitness testimony is an expression by a witness of his or her belief or impression. It is quite possible for an honest witness to make a mistake in identification. Honest people do make mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses. Little connection exists between the great confidence of the witness in the correctness of his or her identification and the accuracy of the identification. Confidence and accuracy are two different things. Even a very confident witness may be honestly mistaken, inaccurate or entirely wrong about his or her identification.
[5] When you decide how much or little to believe of or rely upon this evidence, everything that I told you earlier about assessing evidence applies when you are dealing with an eyewitness. In my final instructions to you I am going to go over carefully some of the factors you may want to consider when assessing this evidence.
[6] A reminder that Crown counsel must prove beyond a reasonable doubt that it was the persons charged who committed the offence charged. What is required, however, before you find a person charged guilty of any offence, is that you be satisfied beyond a reasonable doubt, on the whole of the evidence, that it was the person charged who committed that offence.
[7] I will repeat this instruction in my final instructions and elaborate on them.
Coroza J.
Released: August 8, 2017
CITATION: R. v. Browne, 2017 ONSC 5795
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 08 08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
STEVEN BROWNE, AMAL GREENSWORD and ADRIAN WILLIAMS
REASONS FOR TRIAL RULINGS
COROZA J.
Released: August 8, 2017