Court File and Parties

COURT FILE NO.: CR-18-50000107 DATE: 2019-06-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN, Respondent – and – SHAKIYL SHAW, LENNEIL SHAW, AND MOHAMED ALI-NUR, Applicants

Counsel: David Tice and Michael Coristine, for the Crown Dirk Derstine, for the Defendant Shakiyl Shaw Boris Bytensky, for the Defendant Lenneil Shaw Margaret Bojanowska, for the Defendant Mohamed Ali-Nur

HEARD: May 13, 2019

Application # 9 re: Lost Evidence Reasons for Decision

Clark J.

Introduction

[1] On October 16, 2016, at approximately 1:40 a.m., Jarryl Hagley was shot to death in a Pizza Pizza restaurant on Weston Rd. near Lawrence Avenue, in Toronto.

[2] On January 5, 2017, Shakiyl Shaw was arrested in relation to the homicide; his twin brother, Lenneil Shaw, and Mohamed Ali-Nur, were arrested the next day. All were charged with first degree murder and are now on trial before this court sitting with a jury.

[3] By this application, the applicants seek a remedy respecting lost evidence, to wit: business records generated by a telecommunications company, Freedom Mobile Inc. (“Freedom”), a subsidiary of Shaw Communications Inc. (“Shaw”), respecting a telephone number, (226) 505-5146 (“226”), for which they provided cellular telephone service at times material to the homicide.

The Facts

[4] Except where indicated, the following narrative is not in dispute.

[5] As well as the three accused, a fourth man, Winston Poyser, was also involved in the homicide. Poyser turned himself in to police on December 28, 2016, at which time he was charged with first degree murder. On June 27, 2018, Poyser pleaded guilty to being an accessory after the fact to Hagley’s murder. He is now the central Crown witness in this case.

[6] In January 2017, police recovered from Poyser’s girlfriend, Shanae Keith a cellular telephone that had been Poyser’s at the time of the homicide. By February 2017, the homicide investigators had submitted the phone to the Technical Crimes Unit (“TCU”) of the Toronto Police Service for a forensic extraction and analysis of all data on the phone. On April 13, 2017, Shankaran contacted TCU to request that the examination of the telephone be given priority.

[7] On September 11, 2017, Shankaran sent demands to Rogers Communications Inc. (“Rogers”) that records for Poyser’s phone and two other phones be preserved; the use of those other phones was attributed to other persons peripherally of interest in the investigation, namely, Chyanne Howell, Poyser’s cousin, and Veronica Guevara, Shakiyl Shaw’s girlfriend.

[8] On December 5, 2017, Shankaran obtained production orders for the three sets of records.

[9] On January 9, 2018, Shankaran got the records for Poyser’s and Guevara’s phones, but the Howell records were not produced because Rogers had purged them despite Shankaran’s demand.

[10] On January 12, 2018, Shankaran contacted TCU. He was advised that a forensic extraction in examination had not yet occurred, but would be conducted that day.

[11] On January 15, 2018, Shankaran and D/C Zoblicki picked up a completed download and electronic version of the forensic examination report respecting Poyser’s phone.

[12] On January 15 and 16, 2018, Zoblicki reviewed the nearly 6,000 pages of the Poyser download report. In so doing, she learned that Poyser’s phone had received one call from the 226 number on the evening of October 15, 2016, and two more calls from 226 the next morning, approximately an hour before the homicide. Zoblicki determined that Freedom was the service provider for 226.

[13] On January 16, 2018, Shankaran sent a preservation demand to Freedom respecting the 226 records. Shankaran believed that Freedom’s parent company was Rogers. At the time he sent this demand, notwithstanding the 30 day period stated in the demand form, Shankaran believed that it was Rogers’ policy to maintain records sought by such demands indefinitely. On the basis of his belief, Shankaran thought that Freedom would, pursuant to what he understood to be Rogers policy, keep the records indefinitely. It is not disputed that Shankaran took no steps to confirm his belief that Freedom was a Rogers subsidiary or that Freedom would observe what he thought was Rogers policy. What we now know to be Shankaran’s erroneous belief was based on an email [1] he had received from Rogers on October 6, 2017, respecting his demands for preservation of the Poyser/Howell/Guevara (“PHG”) records.

[14] On February 22, 2018, counsel for the respondent served the applicants with a disclosure package in relation to the prosecution, which included a 35 page report prepared by Zoblicki that, inter alia, related to the Poyser records. That report did not include or refer to the subscriber information for the 226 phone, [2] but did refer to the 226 number and, more specifically, to the fact that the 226 phone had contacted Poyser’s phone on October 15 and 16, 2016. [3]

[15] Freedom has a policy pursuant to which records for a particular account are kept for two years following the closing of the account and, absent any unusual or extenuating circumstances, on the second anniversary of the closing of an account the records are routinely purged. In keeping with its policy, Freedom purged the 226 records on or about October 15, 2018. The respondent asserts that there is no evidence as to precisely when the records were destroyed.

[16] Between October 15 and 29, 2018, Shankaran began to prepare documentation to get a production order for the 226 records.

[17] On or about October 30, Shankaran learned that, save for the subscriber information, the Freedom records no longer existed. He recorded in his police notebook that Freedom’s failure to preserve these records resulted from his error.

[18] On January 11, 2019, Shankaran got a production order respecting the only remaining 226 record, namely, the subscriber information, and served that order on January 14, 2019.

Position of the Applicants

[19] It is the position of the applicants that the lost records were potentially exculpatory because they might have shown that the 226 phone was not in the area suggested by Poyser, but, rather, somewhere that would have shown Poyser to be lying.

[20] Counsel for the applicants acknowledge that the evidence had the potential to support the Crown’s case, by putting the user of the 226 phone in the area where Poyser said he was, but contends that the potential value for the Crown (of putting Ali-Nur in that area) would still not mean necessarily that Poyser was telling the truth about the involvement of Lenneil Shaw with Ali-Nur. Accordingly, to put the 226 phone in the area would be significantly less valuable to the Crown than the value to the defence of being able to show that Ali-Nur was somewhere that, if Poyser were telling the truth, he could not be.

[21] Counsel submit that this evidence, if available, would, per Stinchcombe [4], have to be disclosed. As such, the potential evidence having been lost, counsel assert that it is for the Crown to establish that the loss did not occur as a consequence of unacceptable negligence on the part of the police. The applicants contend that the respondent cannot establish that the evidence was not lost through unacceptable negligence and, that being the case, a breach of their respective s. 7 rights has been established.

[22] Although a possible remedy for the alleged breach is a stay of the prosecution, and although this relief was mentioned in their written application, applicants’ counsel did not seriously pursue a stay in oral argument. Rather, acknowledging that this was not a case where a stay would be appropriate, counsel submitted that a strong Bero [5] instruction is required.

Position of the Respondent

[23] It is the position of the respondent that the applicants have failed to show that the material was lost through unacceptable negligence and, accordingly, have failed to demonstrate a breach of s.7. In turn, then, no remedy is required.

Discussion

[24] The approach the court is to take to the failure of the authorities to preserve potential evidence was set out in R. v. La, [1997] 2 S.C.R. 680. The parties do not disagree on the law, but, rather, only on its application to this case.

[25] The respondent does not dispute: (i) that, had the Crown had the records, it would have been obliged to disclose them; (ii) that, given that obligation, the police had a duty to preserve the records; and (iii) that it is obliged to explain the failure of the police to do so. That said, Mr. Tice contends that the failure to preserve the records has been satisfactorily explained, such that the applicants have failed to establish a breach of s.7 of the Charter and, that being so, no remedy is required.

[26] Mr. Tice argues that Shankaran’s belief that Freedom was a Rogers’ subsidiary was reasonable. While I am prepared to accept that Shankaran honestly believed this, since Mr. Tice chose not to call Shankaran on this application I have no idea why he believed that to be the case and, by obvious extension, no means by which to assess the reasonableness of his belief.

[27] Although there are only a few corporations engaged in the telecommunications business in Canada that are of any great size, there is a multitude of smaller companies. Some are subsidiaries of these larger entities; some are not. Moreover, as was the case with Freedom, [6] cellular telephone providers not infrequently rebrand themselves. Against that backdrop, there is no reason apparent to me why Shankaran would have believed that Freedom was subsidiary of any company and, even if so, no reason to suppose that it was Rogers, as opposed to one of the other larger corporations. Accordingly, absent an explanation, I find that his belief was not reasonable.

[28] The respondent further contends that Shankaran was not negligent in waiting as long as he did to get a production order because he believed, based on the email he received from Rogers respecting his demands for the PHG records, that, as a subsidiary of Rogers, Freedom would preserve the 226 records indefinitely. The problem with this argument is, at least, fivefold.

[29] First, it presupposes that the court accepts that Shankaran’s belief that Freedom was a subsidiary of Rogers was reasonable, which, as I have said, absent an explanation I do not.

[30] Second, there is nothing in the aforementioned email and, more generally, nothing in the evidence before me that, to my mind, entitled Shankaran to assume that what the author of the email had undertaken to do in connection with Shankaran’s PHG demands reflected Rogers policy, as opposed to an approach that the author had decided to take in connection with Shankaran’s particular request.

[31] Third, even if Freedom were a Rogers subsidiary, and even if what he thought was a policy were a policy, I see no reason why Shankaran would automatically assume that two different companies would necessarily have the same retention period for records or the same policy in relation to preservation demands just because one was owned by the other.

[32] Fourth, there is no evidence before me as to how Shankaran served the demand on Freedom and no evidence that he received any acknowledgement at all that his preservation demand respecting 226 had been received. More particularly, there is no evidence that he received the same sort of email respecting those records as he earlier received respecting the PHG records. In the absence of an equivalent email from Freedom respecting his 226 demand, it was unreasonable for Shankaran to assume that, because, months earlier, he had been given an assurance respecting different demands, Freedom would also preserve the 226 records indefinitely.

[33] Fifth, even if Shankaran’s beliefs respecting Freedom and his resulting confidence that Freedom would preserve the 226 indefinitely (which confidence was unjustified in my view), in the absence of any explanation I see no justification for Shankaran having waited approximately nine months after serving his demand to secure a production order.

[34] In summary on this issue, I am reluctant to be critical of the officer because there may be reasonable explanations for why he believed and, in turn, behaved as he did. Having said that, Mr. Tice having chosen not to call Shankaran to provide such explanations as he may have, I am compelled to conclude that he was unacceptably negligent in relation to his duty to preserve the 226 records. It follows, then, that there has been a breach of the applicants’ s. 7 rights.

What Remedy Should Follow?

[35] Having found unacceptable negligence and a corresponding s. 7 breach, it remains to consider what the remedy ought to be.

[36] As the relevance of evidence increases, so, too, does the duty imposed on the police to preserve it: La, at para. 22. As I have explained, supra, this evidence was highly relevant.

[37] Loss of evidence by the authorities can sometimes amount to an abuse of process. Usually that will involve the deliberate destruction of evidence, but sometimes unacceptable negligence will suffice: La, at para. 22. The applicants do not assert that there has been an abuse of process. I find that Shankaran’s effort to preserve the evidence (albeit unacceptably negligent) was made in good faith and that the police gave timely disclosure of the existence of the 226 number and its potential relevance. That said, I hold that the failure to preserve the 226 records does not amount to an abuse of process.

[38] Where evidence has been lost, a stay of proceedings will be sometimes be available, but only “if it is one of those rarest of cases in which a stay may be imposed” (La, at para. 23); i.e.: “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”: Bero, at para. 42.

[39] “In extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. In such circumstances, a stay may be the appropriate remedy…”: La at para. 24. On the other hand, “[t]he 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: Bero, at para. 42. Applicants’ counsel do not assert that that test has been met. Accordingly, where, as here, there is no abuse of process, it follows, a fortiori, that a stay is not the automatic remedy.

[40] An important factor to consider at this stage is the importance of the evidence to the right of an accused to make full answer and defence: Bero, at para. 49. Here, as in Bero, it is fair to observe that the lost evidence may have helped the applicants, or it may have helped the respondent, or it may have been neutral; its potential utility is impossible to determine.

[41] As noted above, in their written materials, the applicants sought a stay of proceedings, but in their oral submissions counsel acknowledged that the imposition of a stay would be unlikely in these circumstances. I agree. I am of the view that an instruction to the jury in keeping with Doherty J.A.’s remarks in Bero, at para. 67, is a sufficient remedy in the circumstances.

Clark J. Released: June 4, 2019

Footnotes

[1] The email reads: "Hello Det. Shankaran,

Please be advised that we do not require another Preservation Request in order to keep the data requested." [Emphasis in the original.]

When you do obtain your production order, just please remember to reference the TBR numbers provided to you.

Regards,

MMS Security Analyst

[2] The subscriber information document attributes the 226 number to a subscriber named Mohamed ALINUR, with an address of 25 Richview Rd., Etobicoke. The accused’ surname is the same except that it is spelled with a hyphen. The accused lives at that street address, but it is admitted that he lives in an apartment at that address, whereas the document does not have an apartment number associated with the street address. It is admitted that the date of birth stated in the document is the accused’s date of birth.

[3] Poyser records show that the 226 number contacted Poyser’s phone once on the night before the murder and twice the following morning, shortly before the homicide. Poyser’s evidence is that the Shaw twins did not own their own cell phones and frequently used phones belonging to others. In the records for Poyser’s phone the calls are attributed to a contact named “Dozey”, which is a nickname by which Poyser knows Lenneil Shaw. Poyser knew Shakiyl and Lenneil Shaw for several years prior to the homicide, but only met Ali-Nur on the afternoon of October 15, 2016. So, the fact that the 226 number, attributed to Ali-Nur, is listed as “Dozey” in Poyser’s phone tends to link Lenneil Shaw to both Ali-Nur and Poyser. This evidence tends, in turn, to confirm Poyser’s identification of Ali-Nur as one of the persons involved in the homicide and his account of both his and the three applicants’ movements and activities in the hours leading up to the homicide.

[4] R. v. Stinchcombe, [1991] 3 S.C.R. 326.

[5] R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.)

[6] Freedom was formerly known as “Wind Mobile.”