COURT FILE NO.: CRIM J(F) 1876/16
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
James Clark, for the Crown
- and -
GREG GUTHRIE and DELON GRIFFITH
L. Jorgensen, for Greg Guthrie
HEARD: June 1, 2017
RULING RE: GREG GUTHRIE’S APPLICATION FOR STAY AND EXCLUSION OF EVIDENCE
Fragomeni J.
[1] The Applicant, Greg Guthrie, seeks the following relief pursuant to ss. 7, 11(d) and 24(1) and (2) of the Charter of Rights and Freedoms:
An order excluding evidence obtained as a result of the search of Ms. Guthrie’s residence at 123 Twenty Fourth Street – Unit 202, Toronto, ON
An order granting the Applicant a stay of proceeding on count 4 of the indictment, namely, the importation on or about the 27^th^ day of October, 2014.
[2] The Applicant sets out the following grounds in support of his application:
The Applicant was arrested on October 29, 2014, and subsequently charged with various offences under both the Controlled Drugs and Substances Act and the Criminal Code, including importing a Schedule 1 substance, conspiracy to commit an indictable offence and possession of property obtained by crime over $5,000.
On October 29, 2014, members of the RCMP executed a search warrant at 123 Twenty-Fourth Street, Toronto. This search warrant was issued under the Controlled Drugs and Substances Act.
The police seized various property and Canadian currency from the residence at 123 Twenty-Fourth Street;
After a preliminary inquiry, the Applicant was committed for trial on 3 counts of importing a Schedule 1 substance contrary to s. 6(1) of the Controlled Drugs and Substances Act and 1 count of conspiracy to commit an indictable offence contrary to s. 465(1)(c) of the Criminal Code.
The trial began on April 10, 2017 and is scheduled for 4 to 5 weeks. It was disclosed to the Applicant mid-trial that the photographs and videos from the search warrant execution at the Applicant’s home have been lost.
The loss of such evidence violates the Applicant’s rights as guaranteed by ss. 7 and 11(d) of the Charter of Rights and Freedoms. The appropriate remedy is an Order excluding evidence obtained as a result of the search of the Applicant’s residence pursuant to s. 24(2) of the Charter of Rights and Freedoms.
Evidence in relation to count 4 on the Indictment, the importation on or about the 27^th^ day of October includes a photograph line-up done by Pamela Grey. During the photograph line-up, Grey does not identify any of the individuals. Grey does however positively exclude suspects. The video of this line-up was taken in such a manner that the images shown to Grey are not visible to the camera nor are they noted by the officer.
The loss of such evidence violates the Applicant’s rights as guaranteed by ss. 7 and 11(d) of the Charter of Rights and Freedoms. The appropriate remedy is an order granting the Applicant a stay of proceedings on count 4 on the indictment pursuant to s. 24(1) of the Charter of Rights and Freedoms.
Re: Photo Line-up
[3] I am not satisfied that a stay of the October 27, 2014 importing count relating to Pamela Grey is warranted.
[4] I agree with the Crown that a remedy, short of a stay, is available in the circumstances of this case. I accept the Crown’s invitation to proceed on the basis that Pamela Grey did exclude Mr. Guthrie in her multiple reviews of the photo pack. On that basis the Crown accepts that Mr. Guthrie was not the person she met prior to her travelling to Grenada. The Crown argues, therefore, not to rely on that evidence to support his position that this count has been proven beyond a reasonable doubt.
[5] I agree with the Crown that this is a remedy available on this Count short of a stay. The Crown will be prohibited from arguing that Mr. Guthrie was the person Pamela Grey was dealing with.
Re: Lost Video and Photos of the Search of Mr. Guthrie’s Apartment
[6] Again, I agree with the Crown’s position that exclusion of the evidence seized at the apartment is not warranted as a remedy. The Crown argues that a less intrusive remedy is available in the circumstances. The Crown submits that the loss of the video and photos are factors that go to the issue of reasonable doubt. I agree. This absence of evidence argument for Mr. Guthrie is available to him at trial. The significance of this absence of evidence will be assessed following the submissions and arguments on the trial proper. As in R. v. Bero 2000 CanLII 16956 (ON CA), [2000] O.J. No. 4199, the court will assess the overall reliability of the investigative process which produced the evidence relied on by the Crown and as in Bero, help me decide the significance, if any, of the absence of this evidence that may have been available had the prosecution presented all relevant evidence.
[7] I am not satisfied, therefore, that the evidence relating to the search at Mr. Guthrie’s apartment ought to be excluded. The absence of the video and photos must be considered within the context of the entire case and the total body of evidence called at trial.
Re: Photo Line-up
Position of the Applicant
[8] The Applicant submits that the photo line-up video was not taken properly in accordance with the recommendations set out in the Sophonow Inquiry. The Applicant argues that the process used during the line-up itself was unfair. When viewing the video, it is not evident which photo Pamela Grey is looking at. The video of the photo line-up makes it impossible to see which photo is being placed in front of Pamela Grey when she quickly excludes it. Without knowing which photo she is looking at it is impossible to say whether the Applicant was in fact one of the individuals she excluded.
[9] The Applicant argues that in those circumstances he cannot make full answer and defence and the only remedy is a stay on this count.
Position of the Crown
[10] The Crown submits that even if there was prejudice to the Applicant’s fair trial rights, a stay is not required as a remedy. The Crown argues that there are at least two remedies that could reduce any prejudice to zero.
[11] Firstly, the Crown submits that the court could take this flawed photo line-up into account in determining whether the Crown has proven this count beyond a reasonable doubt.
[12] The second remedy advanced by the Crown under s.24(1) is for the court to proceed on the basis that Grey conclusively excluded the Applicant or prohibits the Crown from arguing that the Applicant was the person Grey was dealing with. If the court proceeds on that basis there would be no conceivable prejudice from the photo line-up as the trial would proceed on the most favourable assumption of what Grey had said.
Re: Exclusion of Evidence: (Lost Evidence)
Position of the Applicant
[13] On this issue the Applicant does not seek a stay of the charges but rather asks this court to exclude all of the evidence seized from the Applicant’s apartment.
[14] The lost video of the entry and exit of the Applicant’s apartment is a critical loss of evidence as it would have established the location of items seized during the search. The video would have depicted where the computer was located and whether it was on. The video would have captured the location of the Blackberry cell phone. The location of the drug paraphernalia relied on by the Crown’s expert is important as the Crown’s expert relied on the assumption that all of the items were together when found.
[15] The cash seized was photographed and the amount seized was challenged by the Applicant. The Applicant testified that he had approximately $130,000 in the apartment, not the approximate $50,000 the police say they found and seized. Photographs would have been significant evidence supporting the Applicant’s testimony in this regard.
[16] The Applicant alleges that the police stole some of this cash and that the loss of the photos is a cover up for doing so. The Applicant also alleges that the police tampered with the exhibit bag sealed at the apartment containing the cash.
[17] The Applicant submits that the loss of this powerful evidence results in an unfair trial and does not allow him to make full answer and defence. His cross-examination relating to the search of his home has been significantly impacted.
[18] The Applicant points to a pattern of carelessness throughout this investigation and as such it is only fair to the integrity of the trial process that the evidence be excluded.
Position of the Crown
[19] The Crown submits that where evidence has been lost it does not necessarily follow that an accused is entitled to a remedy. The accused must establish actual prejudice to his right to make full answer and defence. The fact that mounting a defence may be more difficult as a result of lost evidence does not amount to irreparable harm.
[20] The Crown submits that exclusion of the evidence is not the appropriate remedy. The Crown submits that the court can give itself the standard instruction with respect to lost evidence and can consider whether the Crown’s burden of proof has been discharged without the lost evidence. The court can use this absence of evidence in evaluating the credibility and reliability of all the witnesses.
[21] The Crown argues that there was an adequate substitute for the video and that the defence had disclosure of the personal observations and notes of the Officers who executed the search warrant.
Governing Legal Principles
[22] In R. v. Bjelland 2009 SCC 38, [2009] 2 S.C.R. 651, the Supreme Court of Canada sets out the following at paras. 19 and 27:
Here, we are concerned with aspects of the conduct of a criminal trial and of the operation of the justice system, where the courts have to pass upon the guilt or innocence of an accused. While the exclusion of evidence will normally be a remedy under s. 24(2), it cannot be ruled out as a remedy under s. 24(1). However, such a remedy will only be available in those cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.
There may also be instances where an adjournment and disclosure order may not be appropriate because admission of evidence compromises the integrity of the justice system. For example, as Rosenberg J.A. stated in Horan, at para. 31:
In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in‑custody accused. In such a case, an appropriate remedy could be exclusion of the undisclosed evidence. However, the burden is on the accused to demonstrate that exclusion of the evidence was appropriate.
In other words, where an accused is in pre-trial custody, an adjournment that significantly prolongs the custody before trial may be seen as compromising the integrity of the justice system. The exclusion of evidence may also be an appropriate and just remedy where the Crown has withheld evidence through deliberate misconduct amounting to an abuse of process. Yet even in such circumstances, society’s interest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of the available evidence cannot be ignored. This will especially be true where the underlying offense is a serious one: see O’Connor, at para. 78. In clear cases, however, the exclusion of evidence may be an appropriate and just remedy under s. 24(1) in order to preserve the integrity of the justice system.
[23] In R. v. Satkunananthan 2001 CanLII 24061 (ON CA), [2001] O.J. No. 1019 (ONT C.A.) the court discusses the interplay between the destruction of evidence and Charter rights at paras. 73-75:
The governing principles where an accused claims that the failure to preserve evidence resulted in a breach of a Charter right were discussed by the Supreme Court of Canada in Carosella. In Carosella, at para. 37 the Supreme Court made it clear that the inquiry into whether there was a breach of a Charter right resulting from the destruction of evidence was distinct from the question of remedy under s. 24(1):
The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice. To paraphrase Lamer C.J.C. in Tran, the breach of this principle of fundamental justice is in itself prejudicial. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to s. 24(1) of the Charter.
And, at para. 52, the Court reiterated the test for granting a stay:
A judicial stay of proceedings has been recognized as being an extraordinary remedy that should only be granted in the “clearest of cases”. In her reasons in O’Connor, L’Heureux-Dubé J. stated (at para. 82) that:
It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.
In R. v. La (1997), 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.), a decision released after the trial in this matter, the Supreme Court of Canada expanded upon the approach that should be adopted in cases of lost or destroyed evidence. As this court noted in R. v. Bero, 2000 CanLII 16956 (ON CA), [2000] O.J. No. 4199 at para. 30, this approach in La is conveniently summarized by Roscoe J.A. in R. v. F.C.B. (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547‑48 (N.S.C.A.) 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 [evidence] 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.
[24] At paras. 84 and 85 the court concludes the following:
In any event, on the question of remedy, given the trial judge’s findings that the contents of the destroyed notes and report were fully transcribed and disclosed to the defence, except for some possible “minor errors” that “would have been rare and unimportant”, it can hardly be said that any resulting impairment to the appellants’ right to make full answer and defence would have warranted the granting of a stay of proceedings. The question of destruction of the notes was fully canvassed in cross-examination and was the subject-matter of comment in the judge’s charge to the jury. Hence, even if the trial judge had found that the police conduct constituted a breach of s. 7 or an abuse of process, no further remedy under s. 24(1) would have been warranted.
In summary, in accordance with the principles in Carosella and the approach in La, we are of the view, in the circumstances of this case, that the destruction of the police officers’ notes did not constitute a breach of the appellants’ right to make full answer and defence as guaranteed by s. 7 of the Charter, nor did it constitute an abuse of process. On the question of remedy, the actual prejudice suffered thereby did not warrant the granting of a stay of proceedings. This latter observation is all the more applicable to the appellant Palanithurai whose identity was not in issue at trial and with respect to whom the accuracy of the officers’ notes was not in issue. Consequently, the trial judge was correct in dismissing the appellants’ application. We would not give effect to this ground of appeal.
[25] In dealing with the right to make full answer and defence Weiler, J.A. set out the following at paras. 7 and 8 in R. v. Bradford 2001 CanLII 24101 (ON CA), [2001] O.J. No. 107:
In a similar vein, Justices McLachlin and Iacobucci commented in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at p. 718, 75 Alta. L.R. (3d) 1, that fundamental justice embraces more than the rights of the accused and that the assessment concerning a fair trial must not only be made from the point of view of the accused but the community and the complainant. The fact that an accused is deprived of relevant information does not mean that the accused's right to make full answer and defence is automatically breached. [See Note 1 at end of document] Actual prejudice must be established: Mills, supra, pp. 719-20, citing R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 at p. 693, 116 C.C.C. (3d) 97.
The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration. For example, in B. (F.C.), supra, the court held that where the complainant's signed statement was lost, but a typed transcription that was probably accurate existed, the trial judge erred in entering a stay of proceedings. In R. v. D. (J.), a judgment of the Ontario Court of Appeal, delivered May 30, 1996, 2007 ONCA 160, [1996] O.J. No. 1907, although the complainant's statement was lost, the officer's notes were available, and the court held that it was speculative whether there were any inconsistencies between the complainant's statement and the officer's notes.
[26] In R. v. Knox 2006 CanLII 16479 (ON CA), 80 O.R. (3d) 515, Laskin J.A. deals with the appropriate remedy when an accused’s s. 7 right to make full answer and defence has been violated at paras. 32 to 34:
Thus, on this ground of appeal, the crucial question is the appropriate remedy under s. 24(1) of the Charter. The appellant does not ask for a new trial; he asks for a stay. A stay, of course, is rarely granted because of the societal interest in a verdict on the merits. To warrant a stay, the appellant must meet the "clearest of cases" standard. Ordinarily a stay because of the Crown's failure to disclose relevant evidence is justified only if the non-disclosure either irreparably prejudiced the accused's ability to make full answer and defence or irreparably harmed the integrity of the administration of justice. See R. v. Dulude, 2004 CanLII 30967 (ON CA), [2004] O.J. No. 3576, 189 C.C.C. (3d) 18 (C.A.), at para. 36; and Bero, at para. 42.
In this case, the integrity of the justice system has not been irreparably harmed. The Crown did not intentionally permit the cars to be destroyed, and nothing in the record suggests that Constable Blackman's explanation reflected a "systemic disregard for the prosecution's obligation to preserve relevant evidence". See Bero, supra, at para. 45. [page525]
Nor, in my view, did the destruction of the evidence irreparably prejudice the appellant's ability to defend himself. I say that for two reasons. First, as the trial judge pointed out, the appellant did not act with reasonable diligence in seeking to examine the cars. Quite the opposite. He appears to have made a deliberate decision at his first trial not to examine either car. Second, defence counsel's cross-examination on the lost evidence, her closing comments to the jury and the trial judge's instruction to the jury went a long way towards offsetting any prejudice to the defence flowing from the Crown's failure to preserve the evidence.
[27] In R. v. Kish [2011] O.J. No. 956 Nordheimer J. dealt with whether a stay was the appropriate remedy at paras. 31 and 32:
In assessing the impact of this lost evidence, I reiterate the observation made by Weiler J.A. in R. v. Bradford, supra, at para. 8:
The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult.
A similar view was expressed in R. v. Sheng, (2010), 2010 ONCA 296, 254 C.C.C. (3d) 153 (Ont. C.A.) at para. 46.
[32] In my view, this case most closely matches what occurred in R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.) where the Court of Appeal declined to grant a stay of proceedings where the police had allowed a vehicle to be destroyed that could have been the subject of testing that might have assisted the defence. Like the conclusion reached in that case, I am troubled by the failure to take proper steps to protect and preserve the video surveillance evidence. However, as I have also found, it did not result from any systemic disregard for the duty to preserve evidence nor did it arise from any intentional desire on behalf of the authorities to thwart the rights of the accused. In addition, unlike the situation in Bero where there was no substitute for the inability to test the vehicle, here we have some evidence of what was on the eastbound video and we have evidence from a variety of witnesses regarding the events, although I recognize that the evidence of witnesses may not be a perfect substitute for the objective and independent evidence of a camera. The consequences of that reality were, however, matters that counsel could address in the course of their closing submissions on the trial.
[28] In R. v. Charles [2013] O.J. No. 5796 R.C. Bowell J. dealt with the appropriate remedy in that case at paras. 29 to 35:
Mr. Charles’ counsel worked very hard to persuade the Court that he has suffered irreparable prejudice such that a stay of proceedings is warranted. At the end of the day, however, I am simply not persuaded that is the case. Indeed, in my view, no remedy is called for.
The defence have the benefit in this case, as does the jury, of a video recording of the entire photo line-up process. The manner in which it was carried out and any defects in it are apparent for all to see. Mr. Charles is able to make fulsome submissions on its reliability or lack thereof. In other words, the video attenuates, to a significant degree, any prejudice arising from the loss of the photograph.
The defence also have the benefit of all of the photo line-up photographs save the one of Mr. Charles. That may seem relatively insignificant when the very photograph selected by Mr. Pierre has gone missing. But at least the defence can view the remaining pictures to get a sense of how similar, or dissimilar, they are to Mr. Charles’ appearance. Again, this factor serves to attenuate any prejudice arising from the loss of the photograph.
I concede that Mr. Charles has lost the ability to view the photograph that purported to be of him. It is possible, though highly unlikely in my view, that it was not a photograph of him at all, or that there was something so peculiar about the photograph that it would have stood out unfairly in the array. Mr. Charles does not assert bad faith or maliciousness on the part of the police. I conclude that the photograph Mr. Pierre identified on December 6, 2010 was indeed a picture of Mr. Charles and that the loss of opportunity to view it and assess any peculiarities is of only minimal consequence.
Mr. Miglin advanced an interesting argument to the effect that had he known about the lost photograph prior to the trial, he may have advanced an application to obtain a ruling excluding the entire photo line-up evidence. This is a further loss of opportunity argument. As I say, it is an interesting submission, but not a persuasive one in my view. The concept of prejudice must be viewed contextually. On the one hand, I accept that Mr. Charles has lost the opportunity to advance a pre-trial motion. Whether he would have done so and what the outcome might have been are entirely conjectural matters. On the other hand, the reality is that the evidentiary record now reflects the following features: (1) a mistake by the lead investigator as to what photograph Mr. Pierre identified; (2) an attempt to correct that mistake which fell flat on its face; and (3) an inability on the part of the prosecution to produce the photograph selected by Mr. Pierre. The credibility and reliability of the identification evidence adduced by the Crown is the central issue in this trial. These features inure to the benefit of the accused and work to the prejudice of the prosecution.
In the result, while I conclude that the loss of the photograph is a breach of Mr. Charles’ s. 7 Charter right, I find that he has not been prejudiced by that breach. In other words, his ability to make full answer and defence has not been materially impaired. Indeed as the case has rolled out, it has been, if anything, enhanced.
This is far from the rare case – the clearest instance – where a stay is a justified remedy. In my view, no remedy is required.
[29] In R. v. Bero 2000 CanLII 16956 (ON CA), [2000] O.J. No. 4199 Doherty J.A. considered the appropriate remedy for a breach of s.7 commencing at para. 40. At para. 42 Justice Doherty states:
A stay of proceedings is a remedy of last resort. The prosecution’s failure to preserve evidence does not automatically entitle the accused to a stay of proceedings even when that failure amounts to an abuse of process: R. v. La, supra, 108. A stay is an appropriate remedy only where the breach of an accused’s s. 7 rights has caused harm to the accused’s ability to make full answer and defence that cannot be remedied, or where irreparable harm would be caused to the integrity of the justice system if the prosecution were allowed to continue: R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1, per L’Heureux-Dubé, in dissent, approved in R. v. La, supra, at p. 108. 42 Justice Doherty states:
At para. 49 he notes:
An assessment of prejudice is problematic where, as in this case, the relevant information has been irretrievably lost. No one can say with any certainty whether an examination of the vehicle would have produced information helpful to the appellant in his defence. It may have done so, or it may have yielded information that confirmed the Crown’s case, or it may have produced information that supported neither the Crown nor the defence.
Finally, at paras. 57 and 59:
The absence of evidence can, in some cases, be an important consideration in determining whether the Crown has proved its case beyond a reasonable doubt. As Cory J. said, in R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 at 14 (S.C.C.), a reasonable doubt may be “derived from the evidence or absence of evidence.” The absence of evidence may be particularly important to the defence where, as here, no defence evidence is called. Prior to the Charter, many an acquittal could be attributed the police failure to preserve evidence or otherwise to conduct a proper investigation.
In Crown counsel’s examination-in-chief of Constable Sybydlo, he elicited evidence that the Constable had visually examined the interior of the car, saw no damage to certain parts of the driver’s side, and saw no blood in the interior of the car.
[30] In R. v. D’Amico 1993 CanLII 8482 (ON CA), [1993] O.J. No. 2795 (CA) the court concluded the following at para. 14:
In my opinion, any prejudice resulting from the way in which this investigation was conducted could be effectively corrected by a careful caution along these lines. Compelling this respondent to stand trial cannot be considered oppressive or vexatious. The drastic remedy of staying the proceedings, and thereby in effect acquitting the respondent without a trial, in my opinion, is not appropriate to the factual circumstances of this case and ought not to have been granted.
Governing Legal Principles Applied:
Re: Photo Line-up
[31] I am not satisfied that a stay of count 4 is the appropriate remedy as a result of a flawed photo line-up. The remedy proposed by the Crown short of a stay is appropriate and takes into account the total body of evidence called at trial.
[32] The ruling of the court that it will proceed on the basis that during one of her multiple reviews of the photo pack Grey did exclude the Applicant gives the Applicant the most favourable outcome of the photo line-up. Further, the ruling of the court prohibiting the Crown from arguing that the Applicant was the person Grey met with does diminish the articulated prejudice advanced by the Applicant. The Applicant can still make full answer and defence and have a fair trial.
[33] The Crown is left to persuade the court on the remaining evidence called at trial that the Applicant was involved in the October 27, 2014 importing involving Pamela Grey.
Re: Search at the Applicant’s apartment and Lost Evidence
[34] I agree with the Crown’s position that a less intrusive remedy is warranted.
[35] The actual prejudice set out by the Applicant is reduced in that he was provided with disclosure relating to the search officers. The Applicant had the ability to freely cross-examine the officers on their personal observations and where they located the items in the apartment.
[36] With respect to the computer seized from the apartment the Applicant’s counsel was able to cross-examine the electronics expert.
[37] With respect to the location of the drug paraphernalia the Applicant’s counsel was able to fully cross-examine the drug expert as it related to how his opinion could be affected by the location of those items.
[38] The issue relating to this lost evidence goes directly to the Crown’s onus of proving these charges beyond a reasonable doubt. As Justice Doherty clearly stated in Bero, “The absence of evidence can, in some cases, be an important consideration in determining whether the Crown has proved its case beyond a reasonable doubt.”
[39] The Applicant in his submissions points to a pattern of conduct in the investigation that should seriously concern the court. That pattern of conduct relates to the following:
− The loss of the search video and photos
− The vehicle seized at the Applicant’s residence was not properly sealed and secured
− The loss of suitcases
− The weight difference of the cocaine which Cst. Choudhry was doing his weighing of the drugs seized
− Officer McDougall not searching the suitcases seized. Items were found in the one of the suitcases during the trial
− The photo of the Applicant that Surveillance Officers had was not available.
[40] It is again important to note what Justice Doherty stated in Bero at para. 67:
These instructions may also help the jury assess the overall reliability of the investigative process which produced the evidence relied on by the Crown, and help the jury decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence.
All of the matters raised by the Applicant will be dealt with in submissions and arguments relating to the trial proper and the significance of the lost evidence as it relates to the absence of evidence will be considered by the court within that context and considering the total body of the evidence called at trial.
Fragomeni J.
Released: February 9, 2018
COURT FILE NO.: CRIM J(F) 1876/16
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
GREG GUTHRIE and DELON GRIFFITH
RULING RE: QUALIFICATION OF SGT THOMAS SCARLETT – PROPOSED EXPERT RE: FINGERPRINT ANALYSIS
Fragomeni J.
Released: February 9, 2018