Court File and Parties

Court File No.: CR-17-6548 Date: 2019-05-02 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Hakeem Mohamed and Adrian Scott, Defendants

Counsel: Amy Barkin, for the Crown Uma Kancharla, for the Defendant, Hakeem Mohamed

Heard: May 1, 2019

Ruling Re: Late Disclosure

MCKELVEY J.:

Introduction

[1] The defendant, Hakeem Mohamed, faces a series of firearms offences. These charges date back to February, 2017. On the night of January 12/13, 2017, it is alleged that Mr. Mohamed was with two other persons at the Spring Hills Hotel in Vaughan. The other two individuals were apprehended in the early morning hours of January 13, 2017 and a Glock handgun was seized from the taxi in which they were travelling. At this point there was no evidence that Mr. Mohamed had any involvement with the possession of the handgun. However, subsequently police examined a cellphone which was seized from one of the two persons in the taxi. An examination of the cellphone revealed a photo which shows three individuals looking into a mirror. One of these individuals is alleged to be the defendant, Mohamed. This individual is holding what the Crown alleges is the same handgun that was retrieved from the taxi in the early morning hours of January 13, 2017.

[2] The trial in this action commenced on April 1, 2019, after the defendant re-elected to a trial by judge from trial by judge and jury. During the course of the trial, the photographs extracted from the cellphone which the Crown relies on to support their position that Mr. Mohamed was in possession of a handgun have been entered into evidence and a number of witnesses have been examined and cross-examined on these photos. In addition, a police officer has given evidence with respect to the distinctive markings on a Glock handgun.

[3] On April 18, 2019, during the course of the trial, the officer in charge of the investigation sent an email to Dawn Bonovento, a forensic imaging specialist with the York Regional Police, with a request to enhance two images taken from the phone to the best quality possible. On April 24 and 25, 2019, Crown counsel gave to the defence copies of two enhanced photographs. On April 29, 2019, there was reference to the enhanced images during the course of evidence given by a witness. However, the images were not put to the witness. On April 30, 2019, the Crown advised defence that she intended to call Ms. Bonovento to introduce the enhanced photos as evidence. Also, on April 30, the defence received some emails about how the photos had been processed to create the enhanced images. On May 1, 2019, the defence received information from Ms. Bonovento about the software used for the enhancement.

[4] It is not seriously disputed that the photos are relevant and otherwise admissible at trial. However, the defence objects to the introduction of the enhanced photographs on the basis that there has been late disclosure. The defence position is that the enhanced photos should be excluded based on s. 7 and s. 24(1) of the Charter, or alternatively because their probative value is outweighed by the prejudice that would ensue from their admission into evidence.

[5] The Crown takes the position that the enhanced photos are properly admissible in evidence and that if there is any prejudice to the defence, it can be remedied by an adjournment.

Comparison of the Original Photos to the Enhanced Photos

[6] The original photographs which have been marked as exhibits clearly show the three individuals with the individual in the centre holding what the Crown alleges is a handgun. The enhanced photographs appear to have been lightened considerably. The enhanced photographs appear to be sharper in their clarity and the detail with respect to the alleged handgun appears to be clearer. This is significant to the Crown as they are attempting to prove that the handgun found in the taxi is the same handgun which is alleged to have been in the possession of the defendant, Mohamed. The handgun found in the taxi has been introduced into evidence at this trial.

Applicable Legal Principles

[7] In R. v. Bjelland, 2009 SCC 38, [2009] SCJ No. 38, the Supreme Court outlined the principles relating to exclusion of evidence where there has been late disclosure by the Crown. In that decision the court states that a party seeking a remedy under s. 24(1) of the Charter to exclude evidence must establish a breach of his or her Charter rights, which would normally come under s. 7. Section 7 of the Charter protects the right of the accused to make full answer and defence. The court notes that a Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7. Rather, an accused must generally show actual prejudice to his ability to make full answer and defence. The court goes on to hold that a trial judge should only exclude evidence for late disclosure in exceptional circumstances. Exceptional circumstances would occur where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or alternatively, where exclusion is necessary to maintain the integrity of the justice system. The court holds that because the exclusion of evidence impacts on trial fairness from society’s perspective, where a trial judge can fashion an appropriate remedy for late disclosure, it does not deny procedural fairness to the accused where the admission of evidence does not otherwise compromise the integrity of the justice system. In those circumstances, it would not be appropriate and just to exclude the evidence under s. 24(1).

[8] In the Bjelland case, the Supreme Court found that the prejudice complained of must be material and not trivial. It gives an example of material prejudice “where the evidence is produced mid-trial after important and irrevocable decisions about the defence have been made by the accused.” The court goes on to note that 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 and notes that in such a case, an appropriate remedy could be exclusion of the undisclosed evidence. 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.

[9] In the Ontario Court of Appeal decision in R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127, the Court of Appeal reviews the Bjelland decision and further notes that a judge presiding at a criminal trial has a well-established discretion to exclude evidence that is relevant, material and otherwise compliant with the rules of admissibility. That discretion involves a cost benefit analysis and requires an inquiry into whether the value of the opposed evidence to the correct disposal of the litigation is worth its cost to the litigation process. Some of the factors a trial judge may consider include:

1. Is the probative value of the evidence overborne by its prejudicial effect;
2. Would the introduction of the evidence involve an inordinate amount of time, not commensurate with its value to the determination of the dispute; or
3. The evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof.

[10] At para. 116 of their decision, the Court of Appeal in Spackman states,

The application of this general exclusionary discretion in any case in which it is invoked requires a case-specific factual inquiry. Where the balance being assessed involves probative value and prejudicial effect, relevant factors in the assessment of probative value could include the strength of the evidence, the extent to which the facts the evidence tends to establish are at issue in the proceedings, and the extent to which the evidence supports the inferences advanced.

[11] I have concluded that the evidence of the two enhanced photographs should be excluded both on the basis of s. 24(1) of the Charter, and on the basis that its introduction would involve an inordinate amount of time not commensurate with its value to the determination of the dispute.

[12] There is compelling evidence that the introduction of this evidence would constitute a violation of the accused’s s. 7 rights under the Charter. In order to make full answer and defence the Crown must provide the accused with complete and timely disclosure. In addition, to constitute a violation of s. 7, an accused must generally show actual prejudice to his or her ability to make full answer and defence. In the present case, there is no doubt that there was late disclosure of the enhanced photographs and the intention to call forensic evidence to support its admission into evidence. The original photographs in question were obtained by police approximately two years ago and the Crown has had a lengthy period of time to examine the available photographs and to conduct any analysis that was felt appropriate. While there is no evidence to support a conclusion that the Crown has deliberately withheld evidence, or that its conduct amounts to an abuse of process, the Crown has no explanation for why it delayed in obtaining this evidence until just before the point where it is closing its case. I recognize that the Crown’s failure to act with due diligence by itself is not a basis to exclude the evidence. Nevertheless, the timing raises serious concerns about prejudice to the defendant’s position. The defendant, at the commencement of trial, re-elected from trial by jury to trial by judge alone. And the defence has conducted the case based on the photographs which were originally produced by the Crown. As noted above, several witnesses have already given evidence based on the original photographs which have been marked as exhibits. If the new enhanced photographs are admitted as evidence, it may mean that at least some of these witnesses will have to be recalled in order to allow further cross-examination. In any event, the defence notes that they will not be in a position to proceed further with the case until they are able to retain and consult with an expert about the process used to enhance the photographs. This likely means a significant adjournment, especially as defence counsel has advised that she has other trial commitments in May and June. I anticipate that rescheduling this trial in July and August may be problematic due to the availability of either witnesses or counsel and thus, the adjournment could be a lengthy one. As the charges date back to January of 2017, the adjournment may well raise s. 11(b) issues.

[13] In addition, it is significant that the accused is in custody and any adjournment will lead in my view to an unreasonable delay while he is in custody.

[14] Defence counsel also reported that the manual used to conduct the enhancement is approximately 800 pages in length. The defence argues that this further supports the need for a lengthy delay. In my view the length of this manual would not by itself require a lengthy delay. The major delay in my view is likely to result from the defendant’s intention to retain an expert to review the methods used by Ms. Bonovento to enhance the photographs, together with the anticipated difficulty in finding an acceptable date for the continuation of the trial.

[15] For the above reasons, I have concluded that there was a s. 7 breach of the accused’s Charter rights, and that an adjournment is not an appropriate or just remedy to address the Charter violation. I find therefore that the appropriate remedy is the exclusion of the evidence.

[16] I have also concluded that the evidence should be excluded under the general trial management power, on the basis that the introduction of the proposed evidence would involve an inordinate amount of time, which is not commensurate with its value to the determination of the dispute. While the enhanced photographs do show more detail and are better photographs, the original photographs are not unclear and the Crown apparently felt they were sufficient for their purposes until near the end of their case. The fact that the original photographs have been entered into evidence significantly limits any potential prejudice to the Crown’s case. I have concluded in these circumstances that if the enhanced photos are excluded from evidence, the Crown would still be left with an adequate, if not optimal, photographic record. If the enhanced photographs were to be admitted, however, the time spent in recalling witnesses and the necessary adjournments that would be involved would substantially extend the length of this trial. In considering the probative value and comparing it to the cost in terms of trial efficiency, I have concluded that the balance favours the exclusion of the evidence.

Conclusion

[17] For the foregoing reasons, the enhanced photographs sought to be introduced by the Crown are excluded from the evidence in this case. The Crown will, of course, be entitled to rely on the original photographs which have been previously marked as exhibits at this trial.

Justice M. McKelvey Released: May 2, 2019