COURT FILE NO.: CR-16-50000631-0000

DATE: 20200313

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CURTIS MURRAY and COREY MURRAY

Defendants

Jill Cameron, for the Crown

D. Sid Freeman and David Parry, for Curtis Murray

Adam Boni and Alexander Morris, for Corey Murray

HEARD: November 22, 25, 26, 27 and 29, 2019

MOLLOY J.

REASONS FOR DECISION #6

(Application for Stay of Proceedings)

[1] For ease of reference, these Reasons for Decision are organized under the headings set out in the following index:

A. INTRODUCTION (paras. 2-9)

B. BACKGROUND (paras. 10-25)

The issues in the trial (paras. 10-11)

The history of this proceeding (paras. 12-13)

Initial seizure of surveillance video by the police (paras. 14-17)

The significance of March 18 and 19, 2015 (paras. 18-25)

C. ADDITIONAL VIDEO FOOTAGE DISCLOSURE DURING THE TRIAL (paras. 26-60)

September 25, 2019: First reference at trial to defence understanding as to the extent of the video seized (paras. 26-27)

September 26, 2019: First reference at trial to the existence of the DVR/hard drive, leading to further disclosure (paras. 28-30)

Adjournments to facilitate video expert to examine “corrupted” hard drive (paras. 31-32)

October 18, 2019: Results of the expert analysis of the hard drive (paras. 33-35)

October 18, 2019: Adjournment/Mistrial/Lost evidence (paras. 36-43)

October 21, 2019: Recusal motion (paras. 44-45)

October 25, 2019: Completion of the Crown’s case (paras. 46-49)

October 25, 2019: Crown discloses for the first time that there was a mirror image of the hard drive (paras. 50-52)

October 29, 2019: The trial continued (paras. 53-55)

Report on the mirror image of the hard drive and further adjournment of the trial (paras. 56-60)

D. STAY APPLICATION: LEGAL PRINCIPLES (paras. 61-72)

The disclosure duty (paras. 61-62)

Lost evidence (paras. 63-68)

Abuse of process (paras. 69-72)

E. STAY APPLICATION: FACTUAL FINDINGS (paras. 73-117)

The initial seizure of video from 7 Richgrove (paras. 73-82)

The police handling of the hard drive (paras. 83-101)

Disclosure of the hard drive (paras. 102-108)

Disclosure of the mirror image (paras. 109-117)

F. STAY APPLICATION: ANALYSIS (paras. 118-160)

(i) Breach of the Charter (paras. 118-126)

Timing of disclosure (para. 118)

Circumstances surrounding the loss of the evidence (paras. 119-123)

Prejudice to the accused and consequences of Charter breach (paras. 124-126)

(ii) Abuse of Process (paras. 127-160)

Main Category Step 1: Prejudice to the right to a fair trial (paras. 127-140)

Residual Category Step 1: Prejudice from conduct undermining the integrity of the justice system (paras. 141-144)

Step 2: Adequacy of alternative remedies (paras. 145-157)

Step 3: Balancing of interests (paras. 158-160)

G. CONCLUSION (para. 161-167)

APPENDIX “A” (section of jury charge headed “Lost Evidence”)

APPENDIX “B” (other references to Lost Evidence in jury charge)

A. INTRODUCTION

[2] Curtis Murray and Corey Murray were jointly charged with first degree murder in connection with the death of 17-year-old Trevor Seraphine in the early morning hours of March 21, 2015. The trial proceeded before me with a jury, commencing on September 9, 2019. It was estimated to conclude by mid to late October. However, the trial was fraught with difficulties requiring substantial adjournments, largely due to problems arising from late Crown disclosure of relevant video surveillance evidence and related officers’ notes, some of which were not disclosed to the defence until the trial was well underway. There were several mistrial applications, not all of which were related to the disclosure issues, but all of which I dismissed.

[3] The Crown closed its case on October 25, 2019. Defence counsel indicated they intended to call evidence relating to police handling of the video surveillance evidence. In the course of the Crown making inquiries about the availability of those officers to testify, it was learned that there was yet another source of video surveillance, the existence of which had not previously been disclosed. This required additional adjournments to enable defence counsel, and their expert, to review the new video source.

[4] The defence brought a motion to stay the charge against both accused based on the Crown’s failure to make proper and timely disclosure of relevant evidence, and the loss of relevant evidence, in relation to the video surveillance in the Richgrove complex, where Curtis Murray resided. The defence asserted that this conduct was deliberate and constituted an abuse of process as well as a breach of the Charter rights of the accused. I heard that motion after all of the evidence in the trial had concluded.

[5] I advised the jury of the need for a further adjournment to review the new source of video surveillance and asked them to retire and then advise how many of them would be able to continue if the trial was adjourned to the last week of November, continuing into the first week of December. All but one of the 12 jurors indicated they could return.

[6] Because of the allegations of misconduct by the Crown lawyers who prosecuted the case, new Crown counsel was brought in to argue the stay application. Some of the evidence relevant to the application would also have been relevant at the trial. That evidence was called before the jury. The jury heard substantial evidence as to the circumstances surrounding the lost evidence. Some other evidence was heard solely by me.

[7] At the conclusion of the evidence and submissions by the parties, I ruled that this was not an appropriate case for a stay of proceedings and that any prejudice to the defence could be adequately addressed by instructions to the jury and various concessions made by the Crown. In addition, I ruled that: (1) the police breached their duty by, at the least, failing to preserve all video from 7 Richgrove from March 18-24, 2015; (2) the Crown breached its duty of timely disclosure by failing to disclose the hard drive, the efforts to recover data from the hard drive, and clips of what had been downloaded until well into the trial; (3) there had been no deliberate misrepresentations and the failures to disclose were also not deliberate; (4) there was no abuse of process; (5) there was no bar to Mr. Wilson (the senior Crown counsel at trial) delivering the Crown’s closing address to the jury; (6) there could be no reference in the evidence or addresses to the unidentified man in the elevator from the video of April 1, 2015; and (7) my charge to the jury would include instructions relating to the lost evidence as set out in the Court of Appeal decision in R. v. Bero,[^1] the specific terms of which would be subject to later submissions. I indicated that I would be delivering written reasons for this decision at a later date.

[8] The trial continued. The jury started its deliberations on Thursday, December 5, 2019 and returned with its verdict on the afternoon of Saturday, December 7, 2019, convicting both accused of second degree murder.

[9] My reasons for dismissing the application for a stay of proceedings are set out below. Essentially, I find that any prejudice to the accused by the late disclosure and lost evidence was adequately addressed by other remedies, including the adjournments, the Bero instruction in the final charge to the jury, and permitting the defence to go last in their addresses to the jury. The defence accusations of Crown impropriety and deliberate withholding of evidence were entirely without merit. There was no abuse of process. The trial was fair and there was no basis for a stay of proceedings.

B. BACKGROUND

The issues in the trial

[10] At 2:00 a.m. on March 21, 2015, two assailants attacked and killed Trevor Seraphine, after chasing him into an apartment lobby entrance at 44 Willowridge Drive in Toronto. It was clear from the evidence, including the video of the attack, that these two assailants unlawfully caused Trevor Seraphine’s death and that this constituted, at least, second degree murder. One of the assailants was armed with a handgun and the other had a knife. The first assailant fired several shots at the victim, one of which hit him but did not kill him. The other assailant thereupon stabbed the victim twice, including once in the heart, which was the fatal blow. The attack itself was captured on video by the apartment building’s surveillance cameras. There was also video of the two assailants as they arrived, walking along the side of the apartment building and approaching the entrance, and then running back in the same direction after the murder.

[11] There were two issues to be decided by the jury: (1) the identity of the assailants; and (2) the level of intent. The pivotal issue was whether Curtis and/or Corey Murray were the assailants. The faces of the assailants were substantially obscured, making it impossible to positively identify them based solely on the video. The Crown’s case was based largely on circumstantial evidence seeking to link Curtis and Corey Murray to the crime by tracing movements of a car alleged to have brought the assailants to the scene and connecting each item of clothing worn by the assailants to clothing worn by the two accused on various other occasions captured on surveillance video. The Crown also relied on evidence of a motive and post-offence conduct by Curtis Murray.

The history of this proceeding

[12] The trial on this charge first commenced before me with pretrial applications on March 5, 2018 and proceeded to jury selection on March 16, 2018. At that time, Corey Murray was represented by Boris Bytensky and Brittany Smith, and Curtis Murray was represented by Sid Freeman, without co-counsel. Michael Wilson and Michael Coristine appeared for the Crown throughout the trial. After numerous difficulties requiring adjournments at various times (largely because of Ms. Freeman’s ill-health), and two mistrials, the process of selecting a third jury started on April 9, 2018 and the trial itself finally commenced on April 12, 2018. Further adjournments were required, again because of Ms. Freeman’s health, but the trial was expected to resume in May, 2018. I directed that a second counsel for Curtis Murray be retained and funded, and that counsel should be prepared to proceed with the trial without Ms. Freeman if she became ill again. David Parry was duly retained as second counsel for Curtis Murray. However, on April 30, 2018 before the trial resumed, Corey Murray dismissed his then counsel, with the result that I again declared a mistrial and the matter was adjourned for new counsel to be retained. Both accused waived their rights under s. 11(b) of the Charter in relation to the delay caused by this adjournment. The trial started again before me (now for the fourth time) with pretrial motions on September 9, 2019, followed by jury selection.[^2] The trial was expected to conclude by mid-October, although I warned the jury that it could go as late as the end of October.

[13] The trial itself started on September 12, 2019. There were a number of delays and adjournments as a result of the late disclosure of further video evidence in the course of the trial, as well as the disclosure that video for relevant times had been lost. There was no issue with respect to the video seized from 44 Willowridge, depicting the actual killing of Trevor Seraphine and the arrival and departure of the two assailants. However, there was considerable controversy about the disclosure of video footage seized from cameras in the nearby Richgrove complex where Curtis Murray lived and Corey Murray was a frequent visitor.

Initial seizure of surveillance video by the police

[14] Trevor Seraphine was murdered at 44 Willowridge at approximately 2:00 a.m. on March 21, 2015. Video footage from 44 Willowridge was seized soon after the murder. All of it was disclosed to the defence in a timely way and there was no issue at trial with respect to that video.

[15] By March 25, 2015, the Toronto Police Service (“TPS”) investigating this homicide considered Curtis Murray and Corey Murray to be suspects for this murder and recognized the relevance of video surveillance footage from 7 Richgrove (where Curtis Murray lived). The Richgrove apartment complex was in the same general neighbourhood as the Willowridge complex, only a few minutes’ drive by car. Initially, the police seized video from the Richgrove system only for specific periods of time identified as being relevant for various purposes. This video was downloaded directly from the Richgrove system onto memory sticks and external hard drives by Detective Constable (“D.C.”) Steven Williams from 23 Division. All of that video was disclosed to the defence. In particular, the video initially seized consisted of footage from relevant cameras for the following:

• March 19—clip from the 7 Richgrove south stairwell at 1:23 a.m.;

• March 19—clip from the 7 Richgrove moving room at 4:00 a.m.;

• March 19 from 7:00 a.m. to midnight;

• All of March 20;

• March 21 from midnight until 7:00 a.m.

[16] It should be noted that the video initially seized and disclosed to the defence did not have any footage from March 18, 2015 and no footage from midnight on March 19 until 7:00 a.m. that morning, with the exception of two brief clips: one is from 1:23 a.m. in the south stairwell and shows Curtis Murray and another man alleged by the Crown to be Corey Murray, although that man was wearing a hoodie turned inside out and was hiding his face; the other is from 4:00 a.m. and shows Corey Murray entering the building with Samelia Wiltshire (Curtis Murray’s girlfriend).

[17] Subsequent to this seizure of video in relation to the Seraphine murder investigation, there was a separate police investigation into a wholly unrelated murder, in the course of which the officers in that investigation seized the hard drive itself from the Richgrove surveillance system. On April 2, 2015, that hard drive was provided to the Toronto Police Technical Crimes Unit (“Tech Crimes”) and stored in their vault. On June 24, 2015, when the officers in the other investigation decided they no longer needed the hard drive, it was turned over to D.C. Williams for possible use in the Seraphine investigation. What happened to that hard drive and the video footage on it over the months and years that followed is the subject of this application by the defence for a stay of proceedings. None of this was disclosed to the defence until the trial before me was already underway in the fall of 2019.

The significance of March 18 and 19, 2015

[18] The evidence established that Curtis Murray was embroiled in a dispute with a group of men associated with the Richgrove and Willowridge complexes, the leader of that group being a man named Rushaun Champagnie. Samelia Wiltshire, Curtis Murray’s former girlfriend, testified about an attack on Curtis Murray instigated by Mr. Champagnie and several men with him outside the neighbourhood Hasty Market at about 6:00 or 7:00 p.m. on March 18, 2015. She said that these men chased Curtis and that she, herself, left the car in which she had been waiting and fled into a nearby store for safety. She saw the men then go to the car and steal objects belonging to Curtis. Some of these men then left in a red Mazda hatchback. Ms. Wiltshire testified that she recognized the driver of the red Mazda as a resident of the apartment building at 7 Richgrove Drive where she had previously lived with Curtis and where Curtis still resided. She believed the driver to be Somalian and said that she had also seen his car in the parking lot at 7 Richgrove.

[19] Ms. Wiltshire testified that after this incident at the Hasty Market on March 18, she and Curtis returned to Curtis’ apartment, Unit 711 at 7 Richgrove. The apartment lease was actually in Ms. Wiltshire’s name. She had initially resided there with Curtis Murray, but had moved out a few months earlier. However, she continued to see Curtis Murray frequently, including staying with him from time to time at that apartment. She testified that when she and Curtis got back to the apartment after the incident at the Hasty Market, Corey Murray was already there. She said that another man, who was a friend of Curtis, arrived later. Ms. Wiltshire said that she was in the master bedroom for the rest of that evening studying for a test, but that she heard the apartment door open and close a number of times. She testified that later that night, she went out with Curtis and Corey and this friend, in Curtis’ car with Curtis driving, dropping the friend at his home in Scarborough, stopping at an after-hours club on the way back and then returning to 7 Richgrove. She said Curtis dropped her and Corey off at 7 Richgrove at about 4:00 a.m. Video footage from 7 Richgrove shows Ms. Wiltshire and Corey Murray entering the building at 4:01 a.m.

[20] In March 2015, Fabion Townsend lived at 7 Richgrove on the same floor as Curtis Murray. Mr. Townsend testified at trial that on the night of Wednesday, March 18, at some point between 10:00 p.m. and midnight, he observed an altercation in the parking lot outside the building. He was in his apartment and watched two men shouting and banging on the hood of a red Mazda, which he recognized as belonging to another resident of the building who he believed to be Somalian. He could not hear what was being said, nor could he see if any damage was done to the car. However, he testified that he recognized the two men banging on the car as Curtis and Corey Murray. He believed they both lived in Unit 711, across the hall from his apartment. He said the incident ended when the red Mazda drove away.

[21] Video surveillance from the early morning hours of March 19 shows two individuals coming down the south back staircase at 7 Richgrove at 1:24 a.m. One of them (wearing identical clothing that Curtis Murray was seen wearing earlier on March 18) went outside into the parking lot, while the other (wearing an inside out hoodie with his face obscured) waited at the door. After a short period of time, the first man returned and both went back up the stairs. Ms. Wiltshire identified the first of those men as Curtis Murray but was unable to say who the second man was. The Crown alleged that man to be Corey Murray. He was wearing shoes and pants similar to those worn by Corey Murray on other occasions close in time to this video.

[22] The next morning, March 19, the owner of the Mazda was unable to back his car out of his parking spot. That morning, Mr. Townsend again heard an argument in the parking lot and watched out his window. He said one of the tenants of Unit 711 was in a heated argument with the owner of the red Mazda. Then the other resident of Unit 711 arrived in his car. There was further argument, at which point the Mazda owner left and the two tenants of Unit 711 walked back into the building. Parts of this altercation were captured on video. The incident occurred between 10:37 and 10:48 on the morning of March 19, 2015. Mr. Townsend identified the two men as Curtis and Corey Murray. He said the owner of the Mazda ran off in the direction of Willowridge and disappeared from his view. Later, he saw the Mazda owner return to the parking lot with four or five other guys. A tow truck arrived and the red Mazda was put on a flatbed and taken away. Mr. Townsend could not see any damage to the Mazda. However, an Agreed Statement of Fact was filed stating that another resident, Alexandra Grahovac, saw the flatbed tow truck arrive and take away the red Mazda at about 1:30 p.m. on March 19. She said all four tires of the Mazda appeared to be flat.

[23] On the night of March 19, 2015, Rushaun Champagnie and two other men broke into Curtis Murray’s apartment, vandalized it, and stole virtually all of his clothing and his extensive collection of designer running shoes. The next day, March 20, 2015, Mr. Champagnie and his associates held a large “yard sale” in the lobby of 44 Willowridge and can be seen on video selling items that were identified by Ms. Wiltshire as the property stolen from Curtis Murray’s apartment.

[24] These events from March 18 to March 20 were relied upon by the Crown as evidence of an escalating dispute between Rushaun Champagnie’s group and the Murray brothers. The first known incident was the Hasty Market confrontation and theft of Curtis Murray’s property from his car. There was also evidence of angry words exchanged between the driver of the red Mazda (an associate of Rushaun Champagnie) and the two Murray brothers on the evening of March 18. At some point during the night of March 18/19, the tires of the red Mazda were flattened, likely the impetus for the second angry confrontation between these same individuals, which occurred on the morning of March 19. Curtis Murray was there that night and would have had an opportunity to carry out this vandalism, possibly when outside the building in the parking lot while the other man was standing watch, as shown on the video from about 1:23 a.m. in the south stairwell. Later on March 19, Rushaun Champagnie and his associates broke into Curtis Murray’s apartment and stole his belongings, which they then transported to 44 Willowridge the next day and brazenly offered for sale to the public in the 44 Willowridge lobby.

[25] Curtis and Corey Murray arrived by car at 44 Willowridge at 1:17 a.m. on March 21 and entered the foyer to the lobby (the same spot where Trevor Seraphine was murdered 43 minutes later). Video surveillance of the lobby shows that Curtis spoke to a number of young men in the elevator lobby and then removed from the door a flyer advertising the yard sale in the lobby. He and Corey then returned to the waiting car, which drove them to 7 Richgrove. Both brothers entered 7 Richgrove and went upstairs, returning back down the south staircase at 1:44 a.m. and returning to the same car.[^3] The two men who murdered Trevor Seraphine are first seen on video approaching the building thirteen minutes later, at 1:57 a.m.

C. ADDITIONAL VIDEO FOOTAGE DISCLOSURE DURING THE TRIAL

September 25, 2019: First reference at trial to defence understanding as to extent of the video seized

[26] In cross-examination on September 25, 2019, Mr. Boni, counsel for Corey Murray, suggested to Ms. Wiltshire that her evidence about returning to the apartment building with Curtis Murray on the evening of March 18, 2015 after the Hasty Market incident could not be true because neither of them are seen on video surveillance footage entering the building. Mr. Wilson, for the Crown, objected to this question. I excused the jury and heard argument on the issue. The Crown submitted that Mr. Boni’s question was improper and unfair to the witness because, as the defence knew, the police had not seized any video from the evening or night of March 18. Rather, only parts of the 7 Richgrove video footage had been downloaded onto a memory stick, and this did not include anything from March 18. It therefore could not be said that Ms. Wiltshire and Curtis Murray did not enter the building at the time she said, since the footage for that period of time had not been seized by the police. Crown counsel explained that Ms. Wiltshire had not mentioned the Hasty Market incident from March 18, 2015 until her testimony at the preliminary hearing in May 2016, so the significance of video from that date was not initially known to the police. It thus appeared that Mr. Boni, who was not Corey Murray’s original counsel, had simply been mistaken as to what video existed.

[27] Upon the jury’s return, I advised them that at the initial stages of the investigation, the relevance of footage from 7 Richgrove on March 18, 2015 was not known to the police and they therefore did not seize it. I told the jurors that Mr. Boni was under the misunderstanding that all of the video for the building on that date had been seized and that his suggestion to the witness that she could not possibly have entered the building on the evening of March 18 was simply a mistake on his part. I therefore explained to the jury that there was no corroborating video to show that Ms. Wiltshire’s testimony about returning to 7 Richgrove on the evening of March 18, 2015 was true, but neither could it be shown that she did not do so.

September 26, 2019: First reference at trial to the existence of the DVR/hard drive, leading to further disclosure

[28] On September 26, 2019, Mr. Boni again raised the issue of the confusion about video footage for March 18, 2015. Mr. Boni and his associate, Mr. Morris, were only retained on this file in the summer of 2018 after Corey Murray discharged his prior solicitors, resulting in my declaring a mistrial on April 30, 2018. In the course of reviewing the material and coming up to speed on the trial preparation, Mr. Boni had made various requests of the Crown for disclosure, including a request for all video footage. In an email response to one of those requests, the Crown had advised that “the police seized the actual DVR containing the surveillance from the Richgrove complex” and that “this footage was disclosed.” Mr. Boni submitted that it was because of this email that he believed they had all the footage, including for March 18, 2015, and that it was therefore the Crown that had induced him to make the “mistake” I had explained to the jury, which now made him look bad in front of the jury.

[29] At that point, Mr. Boni made disclosure requests of the Crown with respect to the handling of the DVR and surveillance footage, which resulted in further disclosure being provided by the Crown. As a result of this disclosure, it was learned that the entire hard drive from the 7 Richgrove surveillance system (“the Western Digital hard drive”) had been seized by other police officers involved in the investigation of a completely separate homicide. That hard drive had been examined by the TPS Tech Crimes Unit in connection with that other homicide and had then been turned over to D.C. Williams, who had been in charge of downloading relevant video from the 7 Richgrove system in the course of the Seraphine murder investigation. D.C. Williams left the hard drive in his desk drawer for nearly a year. In May 2016, when D.C. Williams attempted to obtain footage for various dates including March 18, 2015, he discovered that the entire hard drive had been corrupted and was not useable. This was first disclosed by the Crown at a pretrial conducted by McMahon J. in November 2018. The Crown’s pretrial form stated that the Crown was “in possession of corrupted video surveillance from 7 Richgrove on days leading up to and after the homicide” and that “efforts are being made to render the surveillance video useable.” However, the details of what had happened were not at that time disclosed to the defence, nor had the defence been given copies of the corrupted video footage.

[30] In fact, when D.C. Williams reviewed the Western Digital hard drive using the DVR machine from 7 Richgrove, he was unable to see anything on it. D.C. Williams downloaded the video onto his computer and, after several mishaps in that process, recovered some footage, but it was garbled and disorganized. He sent a sample of what the recovered video looked like to Mr. Wilson. It consisted of short clips of several seconds from one camera, then several seconds from another camera, which would go on for a while. Then inexplicably, the footage would jump to a completely different date and show additional short clips from that date from different cameras. There was no mechanism available to search the footage by date or camera. Subsequently, the hard drive and DVR were sent to Western Digital, the manufacturer of the DVR to see if their technical experts were able to remedy the problem, but they were not. Apparently at the suggestion of Western Digital, a copy of the sample video originally sent to the Crown by D.C. Williams was sent to the company in China that manufactured the hard drive, but they also were unable to solve the problem.

Adjournments to facilitate video expert to examine “corrupted” hard drive

[31] After reviewing some of the sample “corrupted” video disclosed by the Crown to the defence during the trial, the defence sought to have the hard drive itself examined by an independent expert to see if anything could be retrieved from it. After some initial disagreement, all parties consented to the Western Digital hard drive and DVR being sent to the expert retained by the defence, David McKay, who was based in Vancouver. It was agreed that the Crown would be provided with any material Mr. McKay could recover and with his report. If data helpful to the Crown was recovered, the Crown would not be entitled to use it at trial, unless in rebuttal of evidence tendered by the defence. The defence would be free to use any admissible data recovered. On October 4, 2019, I signed an Order setting out the agreed upon terms, and the material was sent to Mr. McKay.

[32] The trial was adjourned several times to enable Mr. McKay to carry out his analysis. Updates were provided by counsel from time to time, and further submissions were made. At various times the possibility of a mistrial was raised, which I declined to consider until clearer evidence was obtained from the expert and I could get a handle on the extent to which the defence may have been prejudiced in the conduct of the trial.

October 18, 2019: Results of the expert analysis of the hard drive

[33] By October 18, 2019, the information available from Mr. McKay, as passed on to me by defence counsel, was that no useable data for the relevant period could be obtained from the hard drive. That evidence was lost. There was data from before March 17 and after March 24, but it was in the same format as had been found on the video sample provided by D.C. Williams to the Crown in 2016. There were thousands of video clips of a few seconds each from different cameras, interspersed with similar clips from other cameras and other dates and times, all without any kind of organization and no file system. The footage was essentially not searchable and, for practical purposes, not useable.

[34] Thus, for the period of time from March 18 to March 21, there was no video for:

• March 18;

• March 19 from 12:01 a.m. to 7:00 a.m. (with the exception of the clip at 1:23 a.m. of the two men in the stairwell and the clip at 4:00 a.m. of Samelia Wiltshire and Corey Murray entering 7 Richgrove); and

• March 21 after 7:00 a.m.

[35] In addition, Ms. Freeman filed screen shots from video footage in one of the elevators at 21 Richgrove from April 1, 2015 of a man who she described as having “a striking resemblance” to the man who stabbed Trevor Seraphine on March 21, 2015. On April 1, 2015, while this same man was in the elevator at 21 Richgrove, video footage shows a silver Nissan in the parking lot. Apparently in the disclosure given to the defence, there was a person interviewed who said he saw two men get into a silver Nissan on Willowridge Drive around the time of the murder. Ms. Freeman sought to draw a connection between this man in the elevator and the Nissan in the parking lot, and between the Nissan and the getaway car used by the two killers. There was no information as to the identity of the man in the elevator.

October 18, 2019: Adjournment/Mistrial/Lost evidence

[36] On Friday, October 18, 2019, the defence sought a further adjournment of the trial in order to review the “corrupted” hard drive footage in search of helpful evidence and to investigate the new alternate suspect Ms. Freeman considered to be disclosed by the April 1, 2015 video, a man she asserted resembled Corey Murray (not her client, Curtis). Ms. Freeman argued that a fair trial required time to investigate the man in the elevator.

[37] As a practical matter, a further adjournment to review the content of the corrupted hard drive would necessitate a mistrial. It was clear that no additional footage had been found at all for the directly relevant time period. There were time and date stamped video clips for other dates over a six-month period. However, these were short clips of only a few seconds each and were not organized in any manner. I was advised that there were over 100,000 video clips on the hard drive comprising nearly 1.18 terabytes of data, without any organizational program or ability to search the data in a logical manner. Searching through that morass looking for “something helpful to the defence” would take an extensive period of time. This was quite literally the digital equivalent of the needle in the haystack. Reviewing all of that data would take weeks, if not months, of manpower.

[38] Likewise, tracking down the unknown man shown in the video from an elevator of a different building in April 2015 would be a monumental task to commence in the fall of 2019. If it could be achieved at all, it was unrealistic to suggest it could be done in time to continue the trial with this jury. Essentially, this would require a mistrial.

[39] In any event, I ruled that there was no air of reality to the man in the elevator being an alternate suspect. I saw no more than a passing similarity between the man in the video and the assailant who stabbed Trevor Seraphine (alleged to be Corey Murray). There was nothing whatsoever to connect this man to the murder and no reason to believe his identity could be determined at any point in the foreseeable future. An adjournment would not suffice to address this issue; a mistrial would be required. I refused to grant any further adjournment for the purpose of pursuing this issue, and I refused to declare a mistrial. Subsequently, in relation to a recusal motion (which I will address in the next section of these Reasons), I provided a summary of my ruling on this point as follows:

At this point, I see no air of reality to the suggestion that this man in the elevator is an alternative suspect. There is no known connection between him and Trevor Seraphine, between him and 44 Willowridge Road, or between him and the silver Nissan in the parking lot (even assuming there was a connection between that particular car and the murderers’ getaway car, which there is not). Further, I do not agree that there is a “striking resemblance” between him and the stabber. My own impression is that although this elevator man has a receding hairline, the hairline is more receded than that of the stabber and does not match the outline exactly. Also, his forehead appears to be more protruding. There is certainly not sufficient similarity between the two to suggest this is the same man, particularly with nothing else whatsoever to corroborate it. I note as well, that the only clip seen of this man is from a different building and 10 days after the murder. This is not video footage that would ever have been relevant to the police investigation and the defence has come across it now only by chance.

Accordingly, I declined to grant an adjournment for the purpose of permitting further defence investigation of this man, nor would I declare a mistrial to pursue an avenue I see as speculative at best. If a stronger basis for the alternate suspect point arises in the future, it can be raised at that time, including subsequent to any jury verdict finding the accused guilty.[^4]

[40] With respect to the missing video footage for the relevant periods between March 18 and 19, 2015, Mr. Boni conceded that it would not be appropriate to declare a mistrial at this stage, but argued that this evidence had been lost, was now not available to the jury, and this was the fault of the police. He submitted that this should be the subject of a “Bero”[^5] instruction in my final charge to the jury, and that some evidence would need to be called about this, including from officers who had handled the video and hard drive seizures and further evidence from Det. Price, the Crown’s principal witness in putting the video footage before the jury. There was an issue as to whether I should hear this evidence in a voir dire first, or whether it could proceed before the jury. There was also an issue as to whether the Crown should be required to call certain witnesses specified by the defence. Mr. Boni also noted that, depending on what was disclosed by this evidence, at a later date he might apply for a stay of proceedings.

[41] Mr. Wilson conceded that a lost evidence jury instruction was appropriate. Mr. Wilson also conceded that the jury should be told that by March 25, 2015 it should have been apparent to the police that all available video showing the comings and goings from 7 Richgrove starting from March 18, 2015 should have been searched for and seized, and that the police had failed to seize video for some of the relevant time periods, with the result that this video was lost.

[42] I ruled that the trial would continue on Monday, October 21. I saw no prejudice to the defence as a result of the timing of the disclosure by the Crown with respect to the hard drive and the steps undertaken to extract video from it. Had the defence been given this material in 2016 or 2017, they would be in no different position than they found themselves in after the adjournments at trial. The relevant video is irretrievably lost, as has been confirmed by the independent expert. I agreed that I would provide an instruction to the jury as to the failure of the police to seize and preserve relevant video and the manner in which they could use that failure in determining if the Crown had proved its case beyond a reasonable doubt. However, I saw no utility in further delaying the trial for the purpose of giving the defence more time to pore over the corrupted video on the hard drive.

[43] I directed that the trial would proceed on Monday, October 21, before the jury. The cross-examination of Det. Price would proceed, and the defence would be at liberty to cross-examine him about the lost evidence, including the failure to seize all of it in the first place, and any issues respecting the corrupted hard drive. The Crown also undertook to call D.C. Williams who would testify about his initial seizures of video footage (the footage disclosed to the defence) and his dealings with the hard drive (later found to be corrupted, the content of which was only disclosed to the defence during the trial). I left open the possibility of revisiting this if new information became available from the video and I also left open the possibility of a defence motion to stay the proceedings once all of the evidence at trial had been completed.

October 21, 2019: Recusal motion

[44] Ms. Freeman thereupon filed a motion that I recuse myself for bias, which was served over the weekend, returnable for the morning of Monday, October 21, 2019. The motion was based on the premise that my failure to adjourn the trial resulted in an unfair trial for her client and therefore gave rise to a reasonable apprehension of bias. Although the motion material referred to the inability of the defence to review the corrupted video files in relation to all issues, Ms. Freeman’s oral submissions related only to the man in the elevator on April 1, 2015, who was said to resemble Corey Murray. After hearing argument, I dismissed the motion. There was no actual allegation of bias, nor even of a reasonable apprehension of bias. The motion was essentially a re-argument of the adjournment request I had already denied on Friday, October 18, coupled with the assertion that my failure to adjourn the trial resulted in an unfair trial. Upon dismissing the recusal motion, I stated that I would deliver written reasons on a later date, including reasons for my decision refusing to adjourn the trial.

[45] On November 1, I released written reasons for my decision on those issues.[^6]

October 25, 2019: Completion of the Crown’s case

[46] Subsequently, on October 21, 2019, Det. Price was recalled. After a brief additional examination in chief by the Crown, Det. Price was cross-examined by counsel for both accused, which continued into October 22. Later on October 22, D.C. Williams was called as a witness for the Crown and his examination and cross-examination continued through to the middle of the afternoon on October 23.[^7] The jury was then discharged until October 25, at which point it was anticipated that the Crown would close its case. Defence counsel had not yet decided whether they would be calling any evidence.

[47] The defence brought a motion seeking an order that the Crown be required to call Alexandra Ionescu as its witness, or that she be called as a witness by the Court. I heard argument on that motion on the afternoon of October 23, and reserved my decision. One of the pivotal issues was whether this would be the only witness to be called by the defence, with the result that a decision by the defence to call her as a witness would result in the defence losing the opportunity to address the jury last.

[48] On October 24, in the absence of the jury, I dealt with various procedural issues with counsel. I was advised that counsel were unable to come to an agreement with respect to the evidence of D.C. Vadivelu, the officer at Tech Crimes who had dealt with the hard drive. Therefore, the defence stated that they would be calling evidence from D.C. Vadivelu and a number of other officers. In the course of discussions with counsel, I noted that D.C. Williams, in his testimony the day before, had stated that he did not make a mirror image of the hard drive because he assumed it would already have been done by Tech Crimes. I told counsel that my own experience in hearing testimony from officers from Tech Crimes, as well as other forensic experts testifying about the content of digital files, is that the invariable practice was to make a mirror image of a digital device as a first step before undertaking any kind of analysis. I asked the Crown whether any inquiries had been made of Tech Crimes to see if they had made such a mirror image. I was advised that no mirror image had been made. I was told by defence counsel that they had made the same inquiry the day before and received the same answer.

[49] On October 25, the trial resumed before the jury. After filing an Agreed Statement of Fact and a couple of exhibits, the Crown closed its case. The defence stated they would be calling evidence. I adjourned the trial to Monday, October 28 so that counsel could arrange for the attendance and scheduling of a lay witness, Alexandra Ionescu, as well as various police witnesses the defence intended to call.

October 25, 2019: Crown discloses for the first time that there was a mirror image of the hard drive

[50] Some hours after we had recessed for the day, I was advised that counsel for all parties wished to address me on an urgent matter. Upon court reconvening, Mr. Wilson stated that he had just learned that D.C. Vadivelu had in fact created a mirror image of the hard drive on the police server. Mr. Wilson apologized to the court for his earlier misinformation. He stated that he had caused inquiries to be made and that his information had been that no mirror image had been created. He said that his belief was reinforced by the fact that there was no reference in the notes of the officers involved indicating that such an image had been created.

[51] I ordered that nobody in the Toronto Police Force should attempt to download or analyze any data on the mirror image, but rather that a copy be made and forwarded as soon as possible to Mr. McKay in Vancouver for his analysis and report.

[52] I excused the jury for October 28, 2019 and on that date reviewed with counsel how we should proceed. I was advised that the mirror image of the hard drive was now in the hands of the expert, Mr. McKay, in Vancouver. I noted that if this mirror image of the hard drive turned out to be in the same condition as the original hard drive previously sent to Mr. McKay, there would be no impact on the trial. There was general agreement from counsel with respect to that proposition. However, if there was viewable and searchable video for the relevant periods of time, the impact on the trial would have to be assessed in light of that information. That impact could only be assessed upon receiving a report from Mr. McKay. Given the amount of data on the hard drive, this could take some considerable time. Meanwhile, I directed that the trial would proceed with evidence that would have been called in any event.

October 29, 2019: The trial continued

[53] On October 29, 2019, the defence called Vatsal Patel as a witness. He was a senior technical support analyst employed by Watchnet, the manufacturer of the DVR video surveillance system used at 7 Richgrove. When the Crown learned from D.C. Williams that the hard drive was corrupted, Watchnet had been retained to see if they could remedy the problem. Mr. Patel testified that he was the one who examined the DVR and hard drive and that he was not able to retrieve any video from it.

[54] Also, on October 29, Alexandra Ionescu testified. She was a friend of the victim and he was on his way to visit her at the time he was killed.

[55] Nothing further could be done until we had some information as to the state of the mirror image of the hard drive. The jury was excused until November 4.

Report on the mirror image of the hard drive and further adjournment of the trial

[56] As anticipated, it took a long time for the video to be downloaded. However, counsel received preliminary information from Mr. McKay that the mirror image was not corrupted as the original hard drive had been. There was viewable video and an intact header system that was searchable. Meanwhile, the Crown had a different expert working on another copy of the mirror image, who was coming to the same conclusions.

[57] Ultimately, it was learned that the mirror image had viewable and searchable video footage, but that it was not complete. Some footage was retrieved for March 18, 2015, but only up to approximately 6:00 p.m. There was a file on the mirror image labelled March 19, 2015, but it was empty and the experts were unable to retrieve any video from it.

[58] Mr. Boni, on behalf of Corey Murray, advised the court that he would be bringing an application to stay the proceedings based on abuse of process and deliberate misconduct and misfeasance by the police and Crown counsel in relation to their disclosure obligations. Further, in the event that I ruled that the trial would continue, he requested that Mr. Wilson be removed as counsel and not be permitted to address the jury. Counsel for Curtis Murray supported the position taken by Mr. Boni.

[59] I agreed that defence counsel needed some additional time to review the new video discovered on the mirror image, as well as to prepare for the stay application. Because of the allegations made against the trial Crown, separate counsel from the Crown’s office (Jill Cameron) was brought in to argue the application. I set November 22 as the date to commence the stay application. It was agreed that if the trial were to continue, it could be completed during the last week of November and first week of December. This, of course, would depend on whether the members of the jury would be available, given that they had been advised that the trial would finish by the end of October.

[60] On November 4, 2019, I briefly explained the dilemma to the jury. I advised the jury that I had only two options: (1) adjourn the trial to the last week of November, with the expectation that the trial would then finish in the first week of December; or (2) declare a mistrial and start the trial over again with a different jury. I asked the jury to retire and consider the matter and advise how many of them could return for those two weeks of trial. After a brief recess, the jury reported that 11 jurors could continue, but that one juror had a preplanned and paid for family vacation in the first week of December. I excused that juror and asked the remaining 11 to return on November 26.

D. STAY APPLICATION: LEGAL PRINCIPLES

The disclosure duty

[61] The law is well-settled, and all parties accept, that the Crown is obliged to disclose to the defence any and all information and materials in its possession or control that is relevant to the charge. This applies not only to evidence that will be relied upon by the Crown, but also any other information if there is a reasonable possibility that it may be of “some use” to the accused in making full answer and defence and is not clearly irrelevant. A generous and liberal interpretation of what is relevant must be adopted for this process. The Crown is required to err on the side of inclusion. The Crown’s duty to disclose must be exercised in the “utmost good faith” in accordance with its ethical responsibilities as an officer of the court. There is a corresponding obligation on the police to disclose all such information to the Crown. Although disclosure should be timely to enable the defence to adequately prepare, the duty to disclose does not end at the commencement of the trial. It is ongoing.[^8]

[62] None of these general propositions of law are disputed. Further, the Crown admitted that the police should have seized all surveillance footage for the entirety of the period from March 18 through to March 21 and all of it should have been disclosed to the defence. The existence and content of the hard drive should have been disclosed, as well as the existence and content of the mirror image of the hard drive, once it was apparent that the hard drive itself had been corrupted. Further, documentation relating to those devices and images, such as notes of the officers involved, should have been disclosed. The issues here are not what should have been done from the outset, but rather what flows from the fact it was not done. Relevant to that inquiry are the reasons for the failure to make timely disclosure and any prejudice to the defence.

Lost evidence

[63] Included within the disclosure obligations of the Crown is the principle that both the Crown and the police have an obligation to preserve relevant evidence.[^9] The more relevant the evidence, the greater the care that must be taken to preserve it.[^10]

[64] Where such evidence has been lost, the burden is on the Crown to establish that this loss was not deliberate, nor was it caused by “unacceptable negligence.” If the Crown fails to discharge that burden, this constitutes a breach of the s. 7 Charter rights of the accused. Usually, if the Crown provides a satisfactory explanation for the loss, there is no breach of the disclosure obligation and no breach of s. 7 of the Charter. However, in exceptional cases a s. 7 breach may be found, even in the absence of unacceptable negligence by the Crown, if the loss of the evidence is so prejudicial to the accused that his right to make full answer and defence has been impaired and his right to a fair trial is breached.[^11]

[65] In Bero, the Ontario Court of Appeal adopted a helpful summary of the principles to be applied as stated by Roscoe J.A. in R. v. F.C.B. 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.[^12]

[66] A stay of proceedings because of lost evidence is a remedy of last resort. As stated by the Court of Appeal in Bero:

The reluctance to stay criminal proceedings reflects the strong preference for a verdict on the merits. A stay of proceedings is sometimes necessary, but it is nonetheless an unsatisfactory result which denies both the accused and the community their legitimate expectation of a true verdict based on the merits.[^13]

[67] A stay will not be granted if there are alternative remedies to address any prejudice caused to the accused. In Bero, a car occupied by two men (Bero and Mills) went off the road while being followed by a police car. Both occupants were thrown from the vehicle and were seriously injured. Mills told the police at the scene that Bero had been driving and that he (Mills) had been in the front passenger seat. The accident occurred on October 25, 1996. The car was damaged beyond repair. No forensic tests were conducted on the inside of the vehicle, which might have determined the presence of fingerprints or bodily fluids showing where each man had been seated. On December 2, 1996, the car was sent to an auto wrecker, with no notice to Bero, who was still in hospital at the time. Bero was arrested and charged with impaired driving on January 16, 1997. By then, the vehicle was already out of the control of the police. By the time Bero’s lawyer requested that the car be retained for examination, it had already been destroyed. Notwithstanding a finding that the failure to preserve the vehicle for testing constituted a breach of s. 7 of the Charter, the Court of Appeal found that this did not justify a stay of proceedings as the prejudice could be minimized through a proper instruction to the jury. Doherty J.A. held as follows (at para. 54):

. . . There was, however, another avenue open to the trial judge to minimize the prejudice caused to the appellant. The trial judge should have given the defence the opportunity to place before the jury evidence that the Crown had failed to preserve the vehicle as it was obliged to do, and evidence as to how forensic testing may have assisted in determining the identity of the driver. In my view, had the defence been allowed to make these points and to relate them to its position that the Crown had failed to discharge its burden of proof, the prejudice caused to the appellant would have been substantially reduced.

[68] And further, (at para. 67):

Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence, I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs. 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.

Abuse of process

[69] An abuse of process entitling an accused to a remedy may arise in two situations: (1) where the prosecution is conducted in a manner that contravenes the community’s basic sense of fair play and decency, compromising the accused’s right to a fair trial (“the main category”); and (2) where the prosecutorial conduct undermines the integrity of the judicial system (“the residual category”).[^14] In this case, the defence asserts that the state conduct qualifies as an abuse of process under both categories.

[70] The test to determine whether a stay of proceedings is warranted for an abuse of process is the same for both categories and consists of three requirements:

(1) prejudice;

(2) no alternative remedy capable of redressing the prejudice; and

(3) where there is still uncertainty after assessing steps (1) and (2), a balancing of the interest in denouncing the state conduct and preserving the integrity of the justice system as against the interest that society has in having a final decision on its merits.[^15]

[71] At the first stage of the test, in considering prejudice under the main category, the prejudice must be ongoing, or carried forward through the conduct of the trial.[^16] Under the residual category, the question is whether the state conduct “is offensive to societal notions of fair play and decency” such that proceeding with the trial would be damaging to the integrity of the justice system, even where the trial itself would still be fair.[^17]

[72] The Supreme Court of Canada listed some relevant, but non-exhaustive factors to be considered at the third stage of the analysis, in balancing the competing interests, including: the nature and seriousness of the impugned conduct; whether the conduct is isolated or reflects a systemic problem; the circumstances of the accused; the nature of the charge faced by the accused; and, the interests of society in having the charge disposed of on its merits.[^18]

E. STAY APPLICATION: FACTUAL FINDINGS

The initial seizure of video from 7 Richgrove

[73] Within hours of Trevor Seraphine’s murder, the homicide officers investigating this crime had zeroed in on Curtis Murray as a possible suspect. They had video of the two assailants arriving at 44 Willowridge at 2:00 a.m., killing Trevor Seraphine, and then fleeing. They also had video of Curtis and Corey Murray arriving at that same front door at Willowridge just 43 minutes earlier, pulling the flyer off the door and getting back into the waiting car, which then drove off in the direction of Richgrove. When Det. Price reviewed the Willowridge footage at 7:00 a.m. that first morning of the investigation, he immediately noted the similarity in clothing between Curtis Murray at 1:17 a.m. and the shooter at the time of the murder.

[74] The next day (March 22, 2015), D.C. Williams, an officer attached to 23 Division (the precinct in which the crime was committed), was detailed to obtain video footage from 7 Richgrove. He spoke with building management that day and was told he could access the Richgrove footage the next day. Between March 23 and March 25, D.C. Williams downloaded specific portions of video from 7 Richgrove, as directed by officers on the homicide team. He did this by viewing the video on the building’s DVR system and downloading the specific clips, initially on memory sticks, and then (for larger files) on a hard drive provided by the homicide team. He turned over all of the video seized to the homicide officers. D.C. Williams’ initial viewing and downloading of footage from the 7 Richgrove lobby from the evening of March 20 through to 7:00 a.m. on March 21, reinforced the conclusion of the homicide team that the shooter was connected to 7 Richgrove. This, and other information obtained in the investigation, prompted the homicide team to request specific times and dates of additional video to be downloaded. However, these investigative decisions were not made by D.C. Williams. He was merely the technical person who carried out the process of downloading the clips specifically requested by the investigating officers. He downloaded all the material he was asked to provide from all relevant cameras, and he turned all of it over to the homicide team. In due course, all of that video was disclosed to the defence in the ordinary course. That video was as follows:

• March 19—clip showing two men in the south stairwell at 1:23 a.m.;

• March 19—clip showing Samelia Wiltshire and Corey Murray entering the moving room at 4:00 a.m.;

• March 19 from 7:00 a.m. to midnight;

• All of March 20;

• March 21 from midnight until 7:00 a.m.

[75] In the course of the evidence and submissions at trial, much was made of the fact that the investigating officers in this case chose to use the services of D.C. Williams for technical support, rather than utilizing the resources and expertise of the Technical Crimes Unit. D.C. Williams has been with the TPS for 18 years in various capacities, including the past five years as a Crime Analyst. In that capacity he uses his computer skills to do statistical analyses of crime trends and also provides technical support to officers in the field, including downloading video files from surveillance systems. He is essentially self-taught and has had no formal training with respect to the handling of digital video files. D.C. Williams described the process of downloading video from the Richgrove system as laborious and time-consuming. I attach no significance to that. The files are massive and it also took many, many hours for Mr. McKay, the expert retained during the trial, to accomplish the same task.

[76] I also have no difficulty with the investigative team using the services of D.C. Williams to download footage from an operating video system. Although labour intensive, this is not a particularly complex undertaking, and it is not negligent to have an officer with these skills do these relatively routine tasks.

[77] I accept that in the early days of the investigation before any arrests were made the focus was on obtaining reliable information as quickly as possible. Accordingly, I have no difficulty with the initial decision to download only specific periods of time known to be particularly relevant. The investigating officers had information about when key fobs were used to access entrances to 7 Richgrove and targeted their search for video to those hours. That is understandable, particularly given how long it would take to download all of the footage from all of the cameras for the relevant time period.

[78] However, by March 25, the investigative team had information from witnesses that should have alerted them to the importance of obtaining all of the video for the whole time period between March 18 and March 21. In particular, they had information from Samelia Wiltshire about an incident in the parking lot on either March 17 or March 18 involving the red Mazda. They also had information from Fabion Townsend about seeing the Murray brothers causing damage to the red Mazda in the parking lot after he came home on the evening of March 18. They had also not obtained footage to show that Curtis and Corey Murray were in the building prior to the footage of the two men in the stairwell at 1:23 a.m. on March 19. They had footage of the two men in the south stairwell at 1:23 a.m. on March 19, but no footage showing those men entering or leaving the building before or after that (apart from the footage of Corey Murray entering the building at 4:00 a.m.).

[79] The police were alert to the potential importance of this video. Supported by an Information to Obtain (“ITO”) sworn by Det. Price on March 26, 2015, the police applied for and obtained a search warrant authorizing the seizure of a digital copy of all of the video footage for 7 Richgrove from March 17, 2015 at 12:01 a.m. to March 24, 2015 at 11:59 p.m. In the ITO, one of the grounds noted by Det. Price for believing this evidence to be relevant was that the video was expected to show the suspects wearing clothing that was worn by the assailants during the commission of the offence. As of the date the warrant was issued, the full video was available and obtainable. Even if the exigencies of the murder investigation made it difficult to accomplish this task immediately, it certainly should have been the subject of timely follow-up. Unfortunately, no steps were taken to obtain any of the additional video not already in the possession of the police. As a result, with respect to the initial seizures, there were gaps in the video record for key periods of time.

[80] Neither Curtis nor Corey Murray went back to the apartment after 2:00 a.m. on March 21. There is nothing to indicate any relevance for the video from March 17,[^19] 22, 23, or 24, apart from the possibility of other people wearing clothes similar to those worn by the perpetrators of the murder. However, footage from the late afternoon and night of March 18 through to the morning of March 19 would be directly relevant to show the comings and goings of the suspects and others in the building, as well as the parking lot and building entrances at the time Mr. Townsend said the Murray brothers were thumping on the roof of the red Mazda in the parking lot.

[81] The Crown conceded that all of the video from March 18 to March 21 should have been seized by the police and preserved as relevant evidence. However, from that relevant period of time, the following video was missing from the evidence:

• March 18 from 5:52 p.m. until midnight;[^20]

• March 19 from 12:01 am to 7:00 a.m., with the exception of clips showing the two men in the south stairwell at about 1:24 a.m. and Samelia Wiltshire and Corey Murray entering the building at about 4:00 a.m.; and

• March 21 after 7:00 a.m.

[82] Although I find the police were negligent in not initially seizing all of this footage, their actions were not deliberate. At this stage, there would be absolutely no reason for the police to deliberately fail to download this video. At most their failure to do so was an oversight, or sloppiness in not tying down all of the details of the investigation. In my instructions to the jury, I told them that this footage should have been preserved by the police and should have been provided in a timely way to the defence as part of the disclosure duty. However, I also told the jury that this was negligence as opposed to deliberate wrongdoing.[^21]

The police handling of the hard drive

[83] On April 2, 2015, in relation to a completely separate homicide investigation, a different homicide team was interested in obtaining video footage from 7 Richgrove. Det. Dickinson asked D.C. Williams to find out if footage could be obtained from 7 Richgrove for March 18 to March 19, 2015 and from 21 Richgrove for March 21 to March 31, 2015. When D.C. Williams advised that this would take days to accomplish, Det. Dickinson decided to seize the entire hard drive instead. He attended at the building management office for this purpose, and although it is not clear who actually did the removal, the hard drive was physically removed from the DVR and, later that day, logged into the storage facility at the Tech Crimes Unit. Thus, at this point in time, at least in theory, the TPS had possession of all of the video footage for the periods of time relevant to the Seraphine murder investigation.

[84] The Tech Crimes property log, which I accept as accurate, shows that nobody accessed the hard drive stored in the vault until 2:29 p.m. on June 23, 2015, when it was signed out by D.C. Vadivelu. After retrieving the hard drive, D.C. Vadivelu took photographs of it and attempted to view its contents. He discovered that it contained proprietary software and that he would need the DVR in order to view it properly. He therefore sent an email to Det. Barnes, his contact in the investigation, asking him to obtain the DVR and provide it to him. D.C. Vadivelu could not recall, and made no note of, who had asked him to examine the hard drive or what he was to look for on it. While his request for the DVR was still outstanding, he considered this matter to be simply pending. D.C. Vadivelu did take the precaution of creating a mirror image of the hard drive to be stored on the police server. He started this process at 9:39 p.m., and then left for the day before it had completed. He did not make any note of the fact that he had started this process. Had he checked, he would have learned that something had gone wrong and that a complete mirror image had not been saved.

[85] On June 23, 2015, Det. Dickinson determined that his team no longer needed the hard drive for purposes of their own investigation. Det. Dickinson asked Det. Price if he wanted the hard drive for purposes of the Seraphine murder investigation and Det. Price indicated he did. On the morning of June 24, D.C. Vadivelu turned over the video to D.C. Robbins who provided it to D.C. Williams at 23 Division. That ended D.C. Vadivelu’s involvement. He did no analysis of the hard drive, nor did he check to see if the mirror imaging had been successfully completed, because the matter was now no longer his responsibility.

[86] Thus, as of June 24, 2015, again at least in theory, the TPS team investigating the Seraphine murder had in their possession video footage from all the relevant dates. D.C. Robbins told D.C. Williams that he would get back to him as to what he wanted from the hard drive. D.C. Williams put it in his desk drawer, which he kept locked. Nothing further happened until July 6, 2015 when D.C. Robbins asked D.C. Williams to download footage from 12:30 to 6:30 p.m. on March 24, 2015. D.C. Williams testified that he understood this was not an urgent request and that he did not do it right away. He then completely forgot about it. The hard drive sat in his desk drawer, forgotten, from June 24, 2015 until May 2016.

[87] The preliminary hearing was scheduled to commence on May 2, 2016. On April 28, 2016, Mr. Wilson, who was Crown counsel on the preliminary hearing, advised the defence that upon reviewing the surveillance video in preparation for the preliminary, he had discovered that the police had deemed some footage to be irrelevant, which he thought should be disclosed. He stated that he had therefore decided to provide to the defence “the entirety of all video seized by the police in this matter.” Due to the extent of this disclosure (and other issues), the preliminary hearing was adjourned until May 24, 2016.

[88] Meanwhile, Mr. Wilson, realizing there were gaps in the video seized by the police from 7 Richgrove, inquired of D.C. Williams as to whether further video could be obtained. In particular, he sought video for all day March 17, all day March 18 and from 12:00 a.m. to 7:00 a.m. on March 19, as well as video for March 23 and 24 (which he indicated was less of a priority). It seems that it was upon receiving this request that D.C. Williams suddenly remembered the hard drive in his desk drawer.

[89] D.C. Williams testified that he understood it would be preferable to view the content of the hard drive in the original DVR, which would have the software to run it.[^22] He therefore attended at the building management office to access the DVR. He was told that the building had switched to a new DVR system on December 15, 2015, but that the previous DVR was still there and in working order. There was a different hard drive in the DVR, the contents of which could be viewed. However, when D.C. Williams removed that hard drive and replaced it with the one seized in 2015, it appeared to have nothing on it. He concluded that this was the fault of the 2015 hard drive as the DVR had no difficulty with the other hard drive. He seized the DVR and returned with it to his office.

[90] D.C. Williams had never before attempted to download video directly from a hard drive outside its home DVR. Notwithstanding his lack of experience and training, he attempted to do just that. He did not advise the Crown of his inexperience, nor did he seek any assistance from Tech Crimes or anybody else. He testified that he did not make a mirror image of the hard drive before working on it because he knew it had come from Tech Crimes and believed they would have created a mirror image. However, he did not check with anyone at Tech Crimes to determine whether that was the case. Further, and in my view quite telling, when the problems with the hard drive being corrupted emerged, he never suggested to the Crown, or anyone, that there would be a mirror image of the original hard drive at Tech Crimes, nor did he seek to access the mirror image.

[91] D.C. Williams connected the hard drive into an external docking bay and connected it to his laptop running Windows 8. In an attempt to extract data from the hard drive, he used a software program that was his personal property, which he had previously purchased at a retail outlet. He started the recovery process on May 13, 2016 and allowed it to run over the weekend. He did not install a write-blocker before running the program. Unfortunately, he discovered on the Monday that the download had failed, which he thought was because the power cord had come loose. A further attempt also failed, this time he thought because of an automatic Windows upgrade that interrupted the download. Ultimately, by May 20, 2016, he had a large amount of recovered data. However, it consisted of thousands of short seconds-long clips, all out of order and without any index, or way of searching it, or retrieving specific data. He reported this problem to Mr. Wilson and provided him with a sample of the type of material on the hard drive.

[92] The preliminary hearing resumed on May 24, 2016 and continued for various dates through June 2016. During this time, D.C. Williams continued his attempts to make the video viewable, but ultimately reported to the Crown that there was nothing useable on the hard drive. He suggested that Watchnet, the manufacturer of the DVR, might be of some assistance in accessing the material.

[93] Mr. Wilson obtained approval to retain Watchnet to attempt to retrieve useable video from the hard drive. The hard drive and DVR were delivered to Vatsal Patel, a technician at Watchnet, on September 27, 2016. Mr. Patel testified at trial that when he examined the hard drive, he could see no files on it.[^23] He said that within three to five days of receiving the hard drive, he telephoned the TPS to tell them that he could not retrieve anything. He was advised that D.C. Williams was not in the office, but that he would be given a message to pick up the hard drive and DVR. He heard nothing further until the summer of 2017.

[94] In August 2017, Mr. Patel met with Mr. Wilson and D.C. Williams. It appears from emails exchanged and the notes of D.C. Williams that the raw data D.C. Williams had retrieved in a jumbled format were then provided to Mr. Patel to see if they could make them useable. However, Mr. Patel reported that they were unable to separate the files or make them useable. There is also some suggestion in the material that assistance was sought from the manufacturer of the hard drive in China to no avail, but there is no solid evidence that this was ever done.

[95] The defence was not aware in 2016 and 2017 that any of this was going on. It came to light in the course of the trial, as I discuss below under the heading “Disclosure of the Hard Drive.” It was only then, at the end of September 2019, that the sample video clips were disclosed to the defence and Mr. McKay was retained to see if he could make the content of the hard drive useable. He was unable to do so.

[96] The end result, after extensive examination and analysis of the hard drive by an acknowledged expert in the field, is that the only useable video of the relevant period is the video initially downloaded by D.C. Williams in March 2015, all of which was disclosed to the defence prior to the preliminary hearing. What is missing is video from March 18 and from March 19 prior to 7:00 a.m., with the exception of the two clips from 1:23 a.m. (the two men in the south stairwell) and 4:00 a.m. (Samelia Wiltshire and Corey Murray entering the building).

[97] David McKay testified by videolink from Vancouver. He said that it is never a good idea to remove the hard drive from a DVR. I note that this was done by TPS officers in connection with the other murder investigation in April 2015. Mr. McKay also noted a number of things done by D.C. Williams as being inconsistent with “best practices” as follows:

• he should have made a forensic copy of the hard drive rather than working on the original;

• he should have used a write blocker to prevent any data on the hard drive from being altered;

• he should not have connected the hard drive to a laptop operating Windows, as that could cause the system to try to change the data to a format recognized by Windows;

• the software he used was inappropriate for this purpose;

• the computer should not have been permitted to reboot during the process of the download;

• disconnecting from the power source is not advisable during a download; and

• the hard drive should have been stored in a hydrostatic bag to prevent deterioration due to environmental factors.

[98] Thus, there were many things that D.C. Williams did wrong. According to Mr. McKay, whose evidence I accept, some of these errors, or some combination of them, could have caused the file organizing system to be lost rendering the data unusable. It is also possible that these errors caused data from March 18 and March 19 to be erased or overwritten, but Mr. McKay was unable to say whether that was the case. It is also possible that what was done at Watchnet caused data to be overwritten. For example, video was recovered showing footage in December 2016 of a garage and an office, indicating the possibility that at some point the hard drive was put in another device and captured video from that DVR player.

[99] Because the mirror image created by D.C. Vadivelu has an intact file organization system, it is a logical conclusion that whatever was done with the hard drive by D.C. Williams and/or Watchnet, rendered it unusable. Since the nature of the data found by Mr. McKay on the hard drive is in the same unusable format as the sample provided to the Crown in 2016 (before the hard drive was sent to Watchnet), I conclude that it was D.C. Williams who caused that problem in one way or another. It is clear this was not done deliberately. D.C. Williams was well-meaning, did his best, and worked hard to try to extract usable video from the hard drive. His skills were simply not up to this task and he made numerous errors. I find that the unintelligible form of the data on the hard drive resulted from negligence by D.C. Williams. I find this negligence to be unacceptable in all of the circumstances, including that a task of this complexity ought not to have been assigned to somebody with no training or experience.

[100] That said, it is not possible to say that this negligence caused the loss of video from March 18 and 19, 2015. D.C. Vadivelu created at least a partial mirror image of the hard drive on June 23, 2015. The hard drive had been properly stored from April 2, 2015 until then. For reasons we will never know, the imaging process stopped before it was completed. It is unfortunate that D.C. Vadivelu did not check to see if the imaging process had been completed. However, since he was no longer assigned to do any work on the hard drive, I do not fault him for not doing so. Mr. McKay found in his analysis that there were “bad sectors” on the hard drive. When he attempted to create a copy of the hard drive, it would stop copying when the system encountered this bad sector. He was able to create a copy only by copying forward to the bad sector, and then copying backwards from the end of the data to the end of the bad sector. He testified that one possible explanation for the fact that the mirror imaging initiated by D.C. Vadivelu stopped before it was finished is that the system ran up to the bad sector and then stopped. It is therefore possible that this defect was already on the hard drive when it was obtained by Det. Dickinson on April 2 in connection with the other murder investigation, or that the process of removing it from the DVR caused the damage. At this stage, it is not possible to determine the precise cause of the problem. The mirror image created by D.C. Vadivelu had a file folder for March 19, but no video within it. Mr. McKay was unable to provide an explanation for this. A portion of the March 18 video was recovered, but only up to 5:52 p.m. Unfortunately, the more important period of time is the period from 6:00 p.m. on March 18 until 7:00 a.m. on March 19, none of which was recovered from either the hard drive or the mirror image. Although there is no clear answer to the question of what caused the video from March 18-19 to disappear, it is possible that it was already gone before D.C. Williams tried downloading it onto his computer. There is some support for that theory in the fact that both D.C. Williams and Mr. Patel could read nothing on the hard drive when it was in the DVR and the fact that Mr. McKay found nothing on the corrupted hard drive or on the mirror image from the evening of March 18 and all of March 19.

[101] Be that as it may, the fact remains that there is no video from about 6:00 p.m. on March 18 and all of March 19. There is, of course, a distinction between the police failing to do a thorough investigation by seizing all relevant video and the police losing or failing to preserve relevant evidence in their possession.[^24] I cannot be certain in this case that the missing video from March 18 and 19 was ever on the hard drive. However, in my view, the most likely explanation is that it was there originally and that something was done with the hard drive after it was in police custody, or in the process of removing it from the DVR, caused the data to be lost. This was a relevant period of time and the police had a duty to preserve that evidence. Their failure to preserve it initially ultimately resulted in the loss of the video, regardless of whether subsequent attempts to remedy the situation were also bungled.

Disclosure of the hard drive

[102] In May 2016, prior to the preliminary hearing, the Crown disclosed the notes of D.C. Williams up to that date, which included his note of receiving the hard drive on June 24, 2015 from D.C. Robbins and being “detailed to attempt retrieval of video” and his note on July 6, 2015 providing the dates and times for the video he was requested to download from the hard drive (March 24, 2015 from 12:30 p.m. to 6:30 p.m.). It would have been clear to the police and the Crown that what was being referred to was the Western Digital hard drive from the Richgrove complex DVR system. This would not have been as readily apparent to the defence as the notes of June 24 and July 6 are not specific about where the hard drive came from, and other hard drives are referred to here and there throughout the notes. It would have been preferable if the notes of the officers who retrieved the hard drive from the DVR and the notes from the Tech Crimes records had also been disclosed, even if only for the sake of establishing continuity. However, given the dates involved, the existence of this hard drive was at least discoverable by the defence, particularly if they had thought to ask. That said, I attribute no responsibility to the defence for missing this detail. It is not obvious.

[103] What is important, however, is that it is clear from this disclosure that neither the police nor the Crown were deliberately trying to hide the existence of the Western Digital hard drive. The Crown freely disclosed D.C. Williams’ notes from 2015 about having it. I see this as an unfortunate misunderstanding. The Crown thought the defence knew about the hard drive, but the defence did not understand the significance of these notes.

[104] A judicial pretrial was held before McMahon J. on November 28, 2016.[^25] The Crown’s pretrial form stated, under the heading “Disclosure,” that the Crown was “in possession of corrupted video surveillance from 7 Richgrove on days leading up to and after the homicide” and that “efforts are being made to render the surveillance useable.” This was during the time that the hard drive was still at Watchnet for the purpose of having the technicians there recover useable video. The judicial pretrial memo prepared by McMahon J. following the pretrial indicated that the disclosure issues “should” be resolved within 60 days. Again, the fact that the Crown disclosed the existence of corrupted video and attempts to recover data in writing to both the defence and the pretrial judge is a clear indication that there was no attempt to hide this from the defence.

[105] That said, the Crown failed to make full disclosure with respect to this matter. All of D.C. Williams’ notes with respect to his attempts to extract video and all of the communications with Watchnet in this regard should have been provided to the defence well in advance of trial. The Crown did request D.C. Williams to provide his notes, the only purpose of which would have been to provide disclosure. However, D.C. Williams failed to do so, and the Crown failed to follow up, with the result that this detail slipped between the cracks. There was no request from the defence for any follow-up as to whether the attempts to recover data had been successful, nor did the defence request any further particulars about the “corrupted video.” That said, the responsibility remains on the Crown to make timely disclosure and all of the dealings with the hard drive in 2016 and 2017 should have been disclosed.

[106] When Mr. Boni was retained, he asked for full disclosure of all available video and he was told all of the video had been disclosed. This was not incorrect. The Crown still had the corrupted Western Digital hard drive, but there was no useable video on it. Everything useable had been disclosed. However, knowing nothing about the police handling of the Western Digital hard drive, Mr. Boni was without the necessary information to ask about disclosure of the corrupted video.

[107] I see the Crown’s failure to specifically disclose these details as nothing more than an oversight. The amount of disclosure in this case, including video surveillance, was enormous. It is easy to understand how a detail such as this could have been overlooked by the Crown, just as it is easy to understand why the defence failed to ask specifically for information about the corrupted video. It should have been done; it was not done; it was a mistake. It most certainly was not deliberate, nor does it even approach prosecutorial misconduct as alleged by the defence.

[108] As soon as this gap in the disclosure and in the understanding of the defence arose at trial, the Crown took immediate steps to disclose everything relevant to the issue. I adjourned the trial so that the defence could review the material and consider the implications. The defence had all of the disclosure about what D.C. Williams had done before cross-examining him at trial. I also allowed sufficient time for the expert retained by the defence to examine the hard drive and attempt to rehabilitate it. In the end result, the defence is in precisely the same position it would have been in if this material had been disclosed in a timely manner in advance of trial. The evidence was lost then, and it remains lost.

Disclosure of the mirror image

[109] Throughout all of the efforts made by D.C. Williams in 2016 and 2017 to try to get useable video from the hard drive, he never once mentioned to the Crown that there may have been a mirror image created by Tech Crimes. This failure to raise the possibility of a mirror image continued through having Watchnet try to recover data, as well as the suggestion of seeking assistance from the hard drive manufacturer in China. Even after the trial was adjourned and Mr. McKay was retained to see if he could recover the lost video, D.C. Williams said nothing about the possibility that a mirror image existed. The first time he mentioned the possibility was in response to questioning at trial as to why he did not create a copy of the hard drive before doing any work on the original. Then, for the first time, he offered as an explanation his assumption that this would have been done by Tech Crimes. I have great difficulty believing that D.C. Williams knew all along that there was a mirror image, nor even that he believed there was one.

[110] The information received by the Crown from Det. Dickinson was that Tech Crimes did not carry out any analysis of the hard drive before turning it over to 23 Division. That was accurate. In that event, there would be no reason to believe that a mirror image would have been created. What nobody on the Seraphine murder investigation knew was that the day before the team working on the other murder decided they did not need the video, D.C. Vadivelu had taken a very preliminary step to examine the video and took the precaution of creating a mirror image while waiting for the DVR to be obtained.

[111] D.C. Vadivelu was asked to produce his notes so that they could be disclosed to the defence. He replied that he did not have any notes, but he produced a will-say statement setting out all of the steps he had taken with respect to the hard drive. He did not mention starting the process of creating the mirror image. At the request of the Crown, Det. Tavares (the officer assisting the Crown at trial) went back to D.C. Vadivelu and specifically asked if he had done so. He answered that he did not recall doing it.

[112] Because of D.C. Williams’ testimony that he assumed there would be a mirror image, and the request of the defence as to whether this was correct, these extra checks were done. The information obtained from the police was passed along to the defence in good faith. When I asked Mr. Wilson in court whether such a mirror image existed, he also told me, without hesitation, that it did not. There was no reason for the Crown to believe that it would have been standard practice for Tech Crimes technicians to have created such a mirror image in these circumstances. Indeed, D.C. Vadivelu testified that it was not always done because of the size of some materials and the limited storage space available on the server. There was no reason for Mr. Wilson to doubt the information provided to him. I am completely satisfied that when Mr. Wilson advised the court on October 23, 2019 that there was no mirror image, he believed that to be the truth, and it was reasonable for him to have believed it to be so.

[113] Notwithstanding all of that, Mr. Wilson, being extraordinarily conscientious, instructed Det. Tavares on October 23, 2019 to go back to D.C. Vadivelu and ask him again. Det. Tavares forwarded this request to D.C. Vadivelu on October 24. When he had not heard from D.C. Vadivelu he called him the next day, October 25, at which point D.C. Vadivelu stated he did not know, but would check. Upon checking the server, D.C. Vadivelu realized that he had in fact started that process and he so advised Det. Tavares. As soon as he received this information, Mr. Wilson immediately advised the defence. He also advised the court at the earliest opportunity.

[114] All of the steps taken by the Crown in 2016, 2017, and through the trial, are fully consistent with the Crown not being aware of the existence of the mirror image. It was Mr. Wilson who initiated the request in 2016 for the police to obtain further video from March 18 and March 19, 2015, believing this would assist the Crown’s case. It was Mr. Wilson who kept after D.C. Williams in 2016, trying to get that video. It was Mr. Wilson who sought funding to have Watchnet attempt to recover the video, again because he believed it might be helpful to the Crown’s case. And it was Mr. Wilson who stated in his pretrial form that the Crown was still attempting to retrieve useable data from the corrupted surveillance video. Had Mr. Wilson realized that there was a separate, potentially uncorrupted copy of the video sitting on the police server, I have no doubt he would have taken immediate action to have it reviewed. Everything he did was consistent with him wanting to have that video.

[115] There is not a shred of evidence to support the defence accusation that the failure by Crown counsel to make disclosure of these various things was indicative of a “systematic and wanton disregard of his disclosure obligations,” or that he deliberately withheld evidence, or that he deliberately misled defence counsel and the court, or most particularly, that he only disclosed the existence of the mirror image when he realized that the officer in question was being called as a witness by the defence and the truth would come out. I also take great exception to the defence suggestion that this course of conduct was “divorced from the ethical and legal obligations of the Crown.” I find the opposite to be true.

[116] It is indeed unfortunate that the existence of the mirror image did not come to light earlier. However, I find this to be merely a mistake, or perhaps a series of mistakes. Crown counsel acted reasonably, ethically, and honestly throughout.

[117] That said, the mirror image was in the possession of the police, and therefore within the control of the Crown since June 2015. It cannot be said to be clearly irrelevant. It should have been disclosed. As soon as the Crown and police connected with this case became aware of it, it was disclosed. I granted a further adjournment so that it could be examined. The only new evidence recovered was video footage from March 18, 2015 up to 5:52 p.m., none of which was put into evidence by the defence, and so I take it to be either irrelevant or unhelpful to the defence case. The initial failure to disclose the mirror image, and the subsequent late disclosure of the mirror image, had no impact on the trial, other than to cause a delay of about one month and some additional expense.

F. STAY APPLICATION: ANALYSIS

(i) Breach of the Charter

Timing of disclosure

[118] The defence was entitled to disclosure of the hard drive and related notes with respect to actions taken to rehabilitate it and to disclosure of the mirror image well in advance of the trial. In that sense, the timing of the disclosure constituted a breach of the duty to make full disclosure. However, I granted several adjournments during the course of the trial to give the defence an opportunity to review the new evidence and have an expert analysis done of both the hard drive and the mirror image. The expert evidence is that the video surveillance evidence from March 18 at 5:52 p.m. to March 19 at 7:00 a.m. is lost and cannot be recovered. It does not matter that this was not discovered during the course of the trial, as opposed to before the trial. The fact remains that it is gone. The real issue in this case is lost evidence, not delayed disclosure. Apart from the adjournments already granted, no additional remedy is appropriate as a result of the late disclosure. The lost evidence is a different matter.

Circumstances surrounding the loss of the evidence

[119] It cannot be said that the lost video surveillance from March 18 and March 19 was “clearly irrelevant.” The Crown concedes relevance and also concedes that the police should have preserved all of that video in 2015 and disclosed it to the defence in the normal course prior to the preliminary hearing. The police failed in that obligation, as a direct result of which the evidence has been lost. In these circumstances, it is incumbent upon the Crown to provide an explanation as to why the evidence was lost.

[120] It is relevant in these circumstances to look at the extent of what has been lost, as well as the explanation for the fact that it was lost. I have reviewed much of that evidence in the preceding section dealing with the facts, but it is useful to summarize it here:

(i) As a result of the failure of the police to preserve all relevant video in 2015, the video for all of March 18 and March 19 from 12:01 a.m. to 7:00 a.m. was lost. This was due to inadvertence and sloppiness by the police.

(ii) Efforts to recover that lost video from the hard drive were unsuccessful, possibly because the hard drive was defective from the outset, possibly because it was damaged when it was removed from the DVR, or possibly because of the negligence of D.C. Williams. The result is the same. The relevant video not initially seized in 2015 is lost. As noted above, the late disclosure of the information about the hard drive had no impact.

(iii) The late disclosure of the mirror image was a matter of inadvertence and had no impact. However, as a result of the eventual disclosure, video was retrieved for March 18, 2018 from 12:01 a.m. to 5:52 p.m. This time period was not particularly relevant. Since the defence did not introduce any of the video into evidence, I conclude it was either irrelevant or unhelpful for defence purposes.

[121] In R. v. Sheng, Laskin J.A. summarized what flows from the Crown’s explanation for why evidence was lost as follows:

Where the Crown gives no explanation or where the Crown’s explanation shows that the evidence has been lost or destroyed because of the Crown’s “unacceptable negligence”, then the Crown has failed to meet its disclosure obligation. It has breached s. 7 of the Charter. Whether the breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actual prejudice caused by the loss or destruction of the evidence.

Where the Crown satisfactorily explains the loss or destruction of the evidence, it has met its disclosure obligation. Section 7 of the Charter has not been breached. Still, “in extraordinary circumstances” the accused may be entitled to a stay if the accused can show that the lost or destroyed evidence is “so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial.”[^26]

[122] There is an acceptable explanation, which I discuss below, for the initial failure to disclose the existence of the hard drive and no prejudice as a result of the timing of the eventual disclosure. I find no Charter breach flowing from anything involving the mirror image.

[123] As noted, the burden is on the Crown to demonstrate there was no unacceptable negligence in connection with the loss of the video for parts of March 18 and 19, 2015. The failure to seize the footage at the very outset of the investigation can be excused due to the exigencies of the investigation and the amount of time required to download video. However, there has been no explanation for the failure to download the full footage from March 18 and 19 as part of the completion of the investigation, other than apparent inadvertence. There is no clear answer as to how the data on the hard drive itself was lost. However, for the purposes of this argument and given that the Crown bears the burden, I am prepared to accept that the conduct of the police in failing to preserve this when it was available at the early stages of the investigation, when combined with the negligence in the way the police later handled the hard drive, amounted to unacceptable negligence. Accordingly, I find that the loss of this evidence was a breach of s. 7 of the Charter.

Prejudice to the accused and consequences of Charter breach

[124] What remedy flows from this Charter breach depends on the extent of any prejudice to the accused. Where evidence has been lost, it will usually be impossible to pinpoint the actual prejudice with certainty, as it will not be known what the evidence would actually have shown. That is the situation here. Nobody has seen the video from March 18 and 19, 2015 and, to some extent, we must speculate on what it might contain. However, that does not mean that the accused persons are unable to establish prejudice for the purposes of obtaining a remedy for the Charter breach.

[125] R. v. Carosella[^27] involved a sexual assault charge against a former teacher of the complainant many years earlier. The complainant spoke to a social worker at a rape crisis centre seeking advice about what could be done. That social worker took notes of their session. At trial, the Crown, the defence, and the complainant all consented to the notes being produced. However, the crisis centre had destroyed the notes as part of its deliberate strategy to keep such documents out of any court proceedings. The social worker denied any memory of what was said at the meeting. The Supreme Court of Canada ruled that the defence is not required to prove actual prejudice from the loss of the evidence in order to obtain a remedy, noting that this would be an “impossible burden.” Rather, an accused need only show on a balance of probabilities that he lost “a realistic opportunity to garner evidence or make decisions about the defence.”[^28] I find this threshold is met in the case before me. The question is what remedy is appropriate.

[126] In this case, the accused seek a stay of proceedings based on both the Charter breach and the alleged abuse of process. Even in the absence of a Charter breach a finding of abuse of process could entitle the accused to a remedy, whether that be a stay or some other remedy. The abuse of process analysis includes a consideration of the prejudice to the rights of the accused. There is therefore a good deal of overlap in considering the remedy for the Charter breach and the first two steps of the abuse of process analysis (i.e. (1) whether there has been prejudice to the fair trial rights and (2) the adequacy of remedies other than a stay of proceedings). Accordingly, rather than duplicate that analysis here, I will defer it to the following sections dealing with the first two steps in the abuse of process analysis.

(ii) Abuse of Process

Main Category Step 1: Prejudice to the right to a fair trial

[127] The video from March 18 and 19, 2015 was potentially relevant to the defence in four ways:

(i) to show other people in the area wearing articles of clothing similar to those worn by the two assailants who killed Trevor Seraphine;

(ii) to challenge the testimony of Samelia Wiltshire that she and Curtis went back to 7 Richgrove after the incident at the Hasty Market on March 18;

(iii) to challenge the testimony of Mr. Townsend about seeing the two Murray brothers pounding on the roof of the red Mazda in the parking lot on the evening of March 18; and

(iv) to show the comings and goings of the Murray brothers at 7 Richgrove prior to 1:23 a.m. on March 19, with a view to challenging Samelia Wiltshire’s testimony that Corey Murray was there that night and might therefore be the man wearing the inside out hoodie in the stairwell.

[128] This was a circumstantial evidence case, largely dependent on showing the similarity between the shoes and clothing worn by Curtis and Corey Murray in the days leading up to the murder and the shoes and clothing worn by the perpetrators. All of the lost footage is from 7 Richgrove, where Curtis Murray lived and his brother Corey was a frequent guest. The murder was at 44 Willowridge. There is no particular relevance as to what other people were wearing at 7 Richgrove on March 18 and March 19, 2015, any more than what people were wearing anywhere else. Substantial video footage was available from 44 Willowridge of many young men shopping at the yard sale and generally moving through the lobby. For that matter, if counsel wanted to demonstrate that the articles of clothing worn by the perpetrators were commonplace, that was open to them through video of anywhere at all. The chance that this would be seen at 7 Richgrove during these particular times is wildly speculative. Therefore, I do not see the lost footage as being particularly prejudicial for this purpose.

[129] Samelia Wiltshire clearly identified Curtis Murray as one of the men in the stairwell at 1:23 a.m. on March 19. Her testimony in that regard was not challenged. The evidence was overwhelming that this man was Curtis Murray, including the fact that his face is visible and everything he was wearing that night can be traced to other video of him wearing precisely the same clothing. The possibility that video footage from the evening of March 18 would interfere with that conclusion is infinitesimal.

[130] Ms. Wiltshire’s evidence and the video from 1:23 a.m. on March 19 provide some corroboration for the testimony of Mr. Townsend, showing that Curtis was around the building that night, and Mr. Townsend’s evidence also corroborates that of Ms. Wiltshire.

[131] The incident described by Mr. Townsend on the late afternoon of March 18 was only one small component of the escalating pattern of conflict between Curtis Murray and the Rushaun Champagnie group. This was relevant only to a potential motive, which the jury was instructed did not have to be proved in any event. It was a very tangential part of the evidence.

[132] The one area where the video might have been helpful for the defence would have been to support the theory that Corey Murray was not in the building in the early morning hours of March 19, prior to the footage of his entry with Samelia Wiltshire at 4:00 a.m. This could cast doubt on the potential identification of him as the man wearing the inside out hoodie in the stairwell at 1:23 a.m., which has some additional importance because the second perpetrator (with the knife) was wearing an inside out hoodie of the same colour. If the full video was available, the defence might be able to point to the absence of video to corroborate Ms. Wiltshire’s testimony that Corey was in the building at this relevant time.

[133] Thus, at step 1 in considering whether abuse of process is established under the main category, I find there was some, albeit minimal, prejudice to the fair trial rights of the accused, Corey Murray.

[134] In addition to the aspects of possible prejudice I have already mentioned, there were a number of other grounds advanced by the defence which were said to constitute prejudice. For the reasons that follow I find no merit to any of these points.

[135] Mr. Boni argued that through “misrepresentation and non-disclosure” the Crown obtained a mid-trial instruction indicating that he had been mistaken about the existence of video footage for the night of March 18 and that this “damaged his reliability and credibility as an advocate before the jury.” I reject this argument. There was no “misrepresentation” by the Crown; there was a misunderstanding between counsel. This arose during Mr. Boni’s cross-examination of Ms. Wiltshire based on his belief that, because there was no video of her and Curtis Murray returning to 7 Richgrove after the Hasty Market incident, she was wrong in her recollection of doing so. In my mid-trial instruction to the jury I merely advised them that Mr. Boni was “mistaken” in his understanding as to the extent of the video seized by the police and that there was no video for that part of March 18. As it turns out, that instruction was correct. I was not critical of Mr. Boni in any way, and it is not reasonable to suggest that the jurors would have formed an adverse opinion of him because of this, much less that it would interfere with their duty to judge the case fairly on the evidence before them. In any event, the true state of affairs was made clear to the jury in my final instructions, including laying the blame for the non-disclosure solely upon the police and Crown. In that instruction, I reminded the jury of how the issue arose during the cross-examination of Ms. Wiltshire and what I had told them in my mid-trial instruction. I then laid the blame solely at the feet of the Crown, stating (in part):

The defence was not aware of all of the things done by D.C. Williams and Watchnet in 2016 and 2017 in respect of the hard drive, because they had not been given full disclosure of it. This was not a simple mistake by Mr. Boni, it was a fundamental misunderstanding as to the nature of the video he had been given, caused by the fact that the disclosure was not as complete as it ought to have been.[^29]

Given that instruction, I am satisfied that this issue caused no prejudice to the accused’s right to a fair trial.

[136] I also reject the argument that the loss of this video prevented the defence from showing footage of Mr. Champagnie and his associates, including the driver of the red Mazda, in and around this time. It was established in the evidence that the driver of the red Mazda lived at 7 Richgrove and that Mr. Champagnie was frequently seen there. Additional footage of these people in the area adds nothing and would not have assisted the defence, even if it existed.

[137] I also reject the defence argument that the jury’s ability to recall the evidence was impaired by their repeated and lengthy absences. Much of the evidence in this trial consisted of video tape and other exhibits, all of which the jury had for their review. Most, if not all, of the jurors took extensive notes as the evidence was heard, and I instructed them that if they were unsure about evidence, we could have it read back to them. The evidence in this trial commenced on September 10, 2019 and the jury deliberations started on December 5. That is not an inconsequential period of time, but many trials of this nature are longer. I do not have any concerns about the jury’s inability to recall the evidence.

[138] Defence counsel also argued that their conduct of the trial was prejudiced by having conceded the admissibility of the video footage from 7 Richgrove. They maintained that if they had known that some video was missing, they would never have agreed to any of the footage from 7 Richgrove being admitted. I reject that argument. It may have been the case that there would have been a more vigorously contested Crown application about the admissibility of this evidence. However, I would still have ruled the evidence admissible. The evidence that did exist was highly relevant and probative. It was relevant standing alone, and did not require other evidence for context. In any event, full video was available for the most important footage, that being for the periods of time immediately prior to the murder. Since the evidence would inevitably have been admitted without any concessions by the defence, the fact that they made concessions does not give rise to any prejudice.

[139] The defence argued that there was additional prejudice caused by the fact that at the time of a motion to dismiss the case for unreasonable delay there were admissions made that disclosure was complete. That application was dismissed for unrelated reasons. I find no merit to this argument.

[140] Finally, the defence argued that the late timing of the disclosure prevented them from fully investigating the man shown in the elevator at 21 Richgrove on April 1, 2015, whom they assert might have been a viable alternate suspect. Video from another apartment building 10 days after the murder would never have been part of the normal video disclosure to which the defence would have been entitled in any event. They only obtained this video by chance as a result of the circumstances surrounding the recovery of data from the hard drive after the fact. In any event, as I already ruled in my decision on the recusal motion, there is no air of reality to the suggestion that this man could have been the stabber. He does not in my view bear more than a passing resemblance to the man with the knife who killed Trevor Seraphine, the similarities being largely based on skin colour, age, and body type, none of which are distinctive. I do not see the hairline as being the same, or particularly distinctive.[^30] There was no prejudice to the previous defence application with respect to evidence of alternate suspects, which I dismissed. The addition of evidence about another possible suspect for which there is no air of reality would not have changed that result.

Residual Category Step 1: Prejudice from conduct undermining the integrity of the justice system

[141] At its very highest, there was some negligence in the police handling of the hard drive resulting in some of the relevant footage being lost. There was also a failure by the Crown to fully disclose all of the things done with the hard drive during 2015 and 2016. Clearly that should have been disclosed. However, there was nothing deliberate about the failure to disclose, no attempt to destroy evidence, and no attempt to hide anything from the defence. The police and the Crown are not held to a standard of perfection. Mistakes were made and it would have been preferable if they had not been made. However, there is no merit whatsoever in the suggestion that the Crown or the police deliberately withheld evidence or suppressed evidence or deliberately misrepresented the facts to the Court. There was no conduct of a sort that could be considered contrary to societal norms of decency or fair play, such as contemplated by the Supreme Court of Canada in cases such as O’Connor and Babos.[^31] In short, there was nothing about any of the conduct here that even remotely could be said to bring the administration of justice into disrepute.

[142] Neither do I see this as a case of systemic failures by the police of such proportion as to call into question public confidence in the justice system or the police force. These were individual errors by individual people and not, in my view, any indication of a “wanton disregard” of the duty to make full disclosure, as suggested by the defence. The existence of the mirror image was simply not known and the reasons for it are understandable. One officer undertook technical tasks that were beyond his level of expertise. That does not amount to a systemic failure, nor does it indicate that these aspects of an investigation should be supervised by the Crown as opposed to being the responsibility of the police. In my opinion, the duty of disclosure was regarded very seriously by both the Crown and the police. That they made mistakes does not elevate the problem beyond that. The amount of disclosure in this case was voluminous. As I previously noted, the Crown was not the only party who failed to follow-up on the corrupted video issue referred to at the pretrial; the defence also missed that point. Had they thought to ask, everything would have inevitably been disclosed far earlier. I say that not to attribute blame to the defence, but merely to point out that perfection is not the standard required.

[143] I also recognize that the whole of the conduct must be looked at collectively rather than piecemeal. Even where an individual failure on its own would not cause a concern about the integrity of the police, the Crown or the justice system generally, the cumulative effect of a number of such instances could potentially do so. However, even viewed cumulatively, I do not see that the conduct of the Crown and/or the police even comes close to causing the kind of prejudice required to constitute abuse of process under the residual ground.

[144] For these reasons, I find that the initial step in establishing prejudice under the residual ground is not met.

Step 2: Adequacy of alternative remedies

[145] It is well-established in the case law that a stay of proceedings is an extreme remedy that should only be granted in the “clearest of cases” and where no other remedy would suffice.[^32] The accused is “entitled to a trial that is fundamentally fair and not the fairest of trials.”[^33] A standard of perfection is impossible. The fact that relevant evidence has been lost and that this has an impact on the accused to mount his defence is not sufficient. Actual prejudice must be shown. Even where the task of an accused is made more difficult because of missing evidence, this does not render the trial fundamentally unfair. As explained in R. v. Bradford, “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.”[^34]

[146] As I have already stated, I granted adjournments to permit the defence to review the new disclosure and to have an expert attempt to retrieve additional footage. Those adjournments were adequate remedies to address any prejudice arising from the timing of the eventual disclosure. The defence were either not called upon to cross-examine relevant witnesses until after these adjournments, or I offered them the opportunity to recall any witnesses they wished to cross-examine as a result of the new evidence.

[147] Because of the non-disclosure, the defence called evidence before the jury relating to the disclosure issues after the Crown had closed its case. Either those witnesses were examined in chief by the Crown, giving the defence a full right of cross-examination, or I allowed the defence considerable leeway in examining those witnesses. The defence raised the issue of having been prejudiced by now having to address the jury last, even though neither of the accused had testified. The Crown immediately offered that the defence could address the jury after the Crown had concluded its address, to which I acceded. Therefore, there was no further remedy required in that regard.

[148] The defence objected to Mr. Wilson addressing the jury, arguing that this would be seen as condonation of his conduct before the jury, and pointing out that he could be seen to be defending his own actions before the jury, even though he did not testify. I found no misconduct by Mr. Wilson, nor did I have any reservations about his sense of professionalism and ethical standards. He was not called as a witness by the Crown, as the issues with respect to disclosure could be established by other evidence. That was a decision the Crown was entitled to make. Since Mr. Wilson was not a witness and has not been guilty of any wrongdoing, I saw no basis to prevent him, as the senior Crown, from addressing the jury. I had no doubt that he would not contravene the prohibition against giving evidence in the course of his address, and I was correct in that assessment. His closing address was beyond reproach.

[149] Finally, in all other respects in which any prejudice could arise (e.g. no corroboration of the evidence of Samelia Wiltshire that Curtis and Corey Murray were both in the building during the night of March 18 and prior to the video of the two men in the stairwell at 1:23 a.m. on March 19, and no corroboration of the evidence of Fabion Townsend as to seeing the two Murray brothers pounding on the roof of the red Mazda on the night of March 18), I gave the jury extensive instructions as to the use they could make of the lost evidence issue, as provided for in the Court of Appeal’s decision in Bero. Under the general heading “Lost Evidence,”[^35] I instructed the jury on the extent of the duty on the Crown and the police to make full and timely disclosure, both at the outset and on an ongoing basis. I reviewed the facts on what had happened with the video evidence in this case and I told the jury that the Crown and the police had breached their duty to make full and timely disclosure, with the result that potentially relevant evidence was lost. I then told the jury that:

Given the failure of the police to preserve potentially relevant video evidence, it is open to you to take this failure into account in assessing the weight of the evidence. It is not disputed that this evidence: (a) could have been preserved; and (b) should have been preserved; and (c) was not preserved. In these circumstances, it is open to you to conclude that the evidence that was lost would not support the position of the Crown. You may conclude that, or you may choose not to. It is entirely for you to say. In considering how to treat this lost evidence, you should have regard to the nature of the evidence that is lost, how directly relevant it is to the offence charged, and any explanation provided for the loss. I can tell you that the defence is in no way to blame for the loss of this evidence; the blame lies entirely at the feet of the Crown and the police. That said, there are gradations of blame for the loss of evidence. At one end of the spectrum would be deliberate steps taken by police to knowingly destroy evidence directly relevant to a defence raised by the accused. At the other end of the spectrum is a simple mistake or human error as a result of which some small piece of evidence was not collected properly, or was misfiled somewhere and cannot be found. The problem in this case lies somewhere between those extremes. I have already made a ruling in this case that none of this was done deliberately, either by the police or the Crown. However, there was clearly some negligence involved at the time the first seizures of video were made and subsequently in the efforts to retrieve further data. It is for you to determine the extent to which it affects your analysis. You may consider that the lost evidence should be presumed to favour the defence, but you are not required to do so. You may consider that it gives rise to a reasonable doubt, but you are not required to do so. You may also, if you choose analyze the impact of the missing evidence in the context of what it might relate to and decide how it affects your analysis in each distinct situation. You must not, however engage in an analysis based on some notion that the police and/or the Crown have deliberately acted to keep relevant evidence away from the defence, or away from you. That is simply not the case.[^36]

[Emphasis added.]

[150] Having given those general instructions, I then reviewed the specific circumstances in which the issue arose and how they could treat the lost evidence, including on the issues of: the credibility and reliability of Ms. Wiltshire’s evidence that Curtis and Corey Murray were in the building; the video of the two men in the stairwell at 1:23 a.m. on March 19; and, the reliability and credibility of Fabion Townsend’s testimony as to the altercations he witnessed involving the brothers in the parking lot.[^37] Also, I provided a similar instruction with respect to the jury’s analysis of video of the car alleged to have transported the killers to 44 Willowridge, although not raised as a specific area of concern before me in the abuse of process argument.[^38]

[151] As I noted earlier, in my opinion there was minimal, if any, prejudice to the defence due to not being able to point to other individuals at 7 Richgrove on March 18 and 19, 2015 wearing similar clothing to the assailants. However, I left it to the jury to take this into account if they chose to. In this regard, my general instruction under the heading “Lost Evidence” included the following:

The fourth area of potential impact is the possibility that the lost evidence might have had footage of other people wearing clothing and shoes similar to those worn by Curtis Murray and Corey Murray. This is a circumstantial case in which identification is based, to a significant extent, on the clothing worn by the perpetrators. It is therefore open to you to take into account that if the defence had the full footage it would contain images of other people wearing similar clothing. Before doing so, however, you may wish to consider the points set out below.

(i) The individual items of clothing are not alleged to be particularly unique, but rather it is the combination of those items that is distinctive.

(ii) The shoes are alleged to be unique, but you have had specific evidence addressing how common they are.

(iii) The defence has significant footage from 7 Richgrove and 44 Willowridge, including extensive video of many people in the Willowridge lobby during the Block Friday sale, and has not sought to direct you to any video footage of people wearing similar clothes or shoes. Ms. Freeman referred to some blue and orange Nike shoes being on sale at the Block Friday sale. D.S. Price did not confirm that these shoes were Nikes, and he described them as being aqua and pink. That is merely his opinion. You can look at the footage for yourselves and determine whether the shoes are similar to the ones worn by the gunman (See Exhibit 59, 44 Willowridge, front lobby4-23-40—the shoes in question are being handled by Mr. Champagnie, the man wearing the red tee shirt, at 4:23:44)

(iv) There is no particular magic to the video from 7 Richgrove. Footage of people walking around anywhere in the same time frame would also demonstrate how common the items might be.[^39]

[152] Later in the jury charge, I again referred to the issue of the lost evidence in my summary of the position of the defence (immediately before reviewing the elements of the offence and relevant evidence).[^40] Also, as areas of specific evidence came up in my charge, I reminded the jury about the implications of the lost evidence on matters such as the identity of the accused on various pieces of video footage, the similarity of clothing, and actions of the accused showing a possible motive for the murder.[^41]

[153] In my view, given that the jury heard substantial evidence about the problems with the video disclosure, and the nature and extent of my instructions as to the inferences that could be drawn as a result of the missing video, the fair trial rights of the accused were preserved.

[154] In Bero, the police did not conduct any forensic tests of the interior of the vehicle which the accused had been charged with driving while impaired. Then, without any notice to the accused (who was still in hospital), the police had the car towed away to a scrap yard and it was destroyed before the accused had an opportunity to conduct any forensic tests that might have shown he was in the passenger seat rather than behind the wheel. There had been two people in the car before it was involved in an accident and both were thrown clear of the vehicle. In these circumstances, the Court of Appeal held that the trial judge should have permitted evidence to be called with respect to what forensic tests could have been done and what they might have revealed. A new trial was ordered. The Court of Appeal held that the Charter rights of the accused were breached as a result of the failure of the police to preserve this evidence but that a stay was not required to remedy this breach. Instead, Doherty J.A. held that the following instruction would have been appropriate:

Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence, I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs. 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.[^42]

[155] There are parallels between the situation in Bero and the situation here – an initial lack of thoroughness by the police (in Bero, not doing forensic tests in the front seat of the car, and in this case not downloading all the relevant video at the outset) followed by the subsequent destruction of the source material (in Bero, the complete destruction of the car, and in this case the loss of the relevant dates from the hard drive). In both cases there was nothing deliberate in the conduct causing the loss of the evidence. In my view, the remedy provided in Bero is particularly apt in this case.

[156] A similar issue arose in R. v. Dulude,[^43] in which the accused was charged with refusing to provide a breath sample after seven failed attempts to do so in the breathalyzer room. The police station did not formally videotape the proceedings in the breathalyzer room, but there were internal security video surveillance cameras in 16 locations, including the breathalyzer room. The video produced from each camera was not continuous, but rotated from location to location. What would have been available from the breathalyzer room was a series of still photos taken every 15 seconds, without any audio. The police erased the video after 60 days, just as a matter of regular procedure. Defence counsel requested a copy of “all videotape” within the 60 days, but because this was considered only to be for security purposes rather than evidence, the police did not produce it and it was erased in the normal course. The trial judge found the tape to be relevant and ordered a stay of proceedings. On appeal, the Ontario Court of Appeal did not disturb the trial judge’s finding of relevance, but noted that the relevance was “marginal” given the nature of the video itself. The Court of Appeal also held that the police conduct, in the absence of any real explanation for their standard practice, amounted to unacceptable negligence. However, the Court of Appeal reversed the trial judge’s remedy of a stay of proceedings, finding she had made legal errors in coming to that conclusion, including that she failed to apply the stringent “clearest of cases” standard. The Court of Appeal therefore considered afresh what the remedy should be and held that the remedy granted in Bero would have been appropriate. As in the case before me, there was no evidence in Dulude that the tape had been erased deliberately for the purpose of avoiding disclosure or due to a systemic disregard for the prosecution’s duty to make disclosure. Further, the Court of Appeal found the missing tape to be of marginal relevance, also similar to the findings I have made in this case. Laskin J.A. held that this was not “one of those rare cases where the prejudice to the accused was so great that a stay was justified,”[^44] stating (at paras. 42-43):

This court held that the destruction of the car caused a breach of the accused’s rights under s. 7 of the Charter. However, even though the car was potentially highly relevant and, therefore, its loss was potentially highly prejudicial to the defence, the court did not order a stay. Instead, it ordered that at the new trial the defence should be allowed to lead evidence that the Crown failed to preserve the car despite its obligation to do so, and that forensic testing on the car might have assisted in determining the identity of the driver. In Doherty J.A.’s words, at para. 54, “had the defence been allowed to make these points and to relate them to its position that the Crown had failed to discharge its burden of proof, the prejudice caused to the appellant would have been substantially reduced.”

If the destruction of the car in Bero did not warrant a stay despite the car’s relevance and the potential prejudice from its loss, I do not see how a stay is justified in this case where the security videotape is but marginally relevant and its loss only minimally prejudicial to Ms. Dulude’s defence.

[157] The remedy of a stay of proceedings is repeatedly referred to in the case authorities as being “rare,” “exceptional,” and reserved for only the “clearest of cases.” The Supreme Court of Canada ruled in R. v. Taillefer; R. v. Duguay that the criteria warranting a stay of proceedings are where:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice.[^45]

Neither of those criteria are met in this case, nor is this a situation where the integrity of the justice system would be compromised. Given the concessions made by the Crown, the evidence the defence was permitted to introduce at trial, and the instructions I gave to the jury about the impact of the lost evidence on the Crown’s burden to prove the case beyond a reasonable doubt, I find that any prejudice to the defence has been adequately addressed by these remedies.

Step 3: Balancing of interests

[158] Having found that there has been no abuse of process and that any breach of s. 7 of the Charter or prejudice to the fair trial rights of the accused has been addressed by alternative remedies, there is no need for me to proceed with the third step of the abuse of process analysis. Nevertheless, in the event that I have erred in respect of any of these previous steps, I will consider the test to be applied at this third step.

[159] This step of the analysis requires me to balance the competing interests involved: whether the interests of justice are better protected by staying the trial as opposed to proceeding to a determination on the merits, notwithstanding the impugned conduct. One of the most influential factors is the nature of the impugned conduct. Here, I have found no deliberate wrongdoing by either the Crown or the police and no conduct that undermines the integrity of the judicial system. It is because of those findings, in part, that I would not have reached this final stage of the analysis. Another important factor is the extent to which trial fairness has been compromised and the impact on the accused. Again, because I have found the impact to be minimal and adequately addressed by other remedies, I would not have reached this interest balancing stage of the process.

[160] However, there is a factor to be taken into account at the balancing stage which is not relevant to any other step in this process, that being the importance to the public of a determination on the merits of this case. This was a vicious killing, captured on video. The victim was an innocent 17-year-old with no connection at all to the two accused. His murder was, at most, symbolic, or possibly random, or possibly a case of mistaken identity. The victim was pursued, shot at, trapped in a small apartment lobby, shot again, and then stabbed to death. This was an extremely strong Crown case, notwithstanding the fact that it was largely circumstantial. In my opinion, the interests of society generally, the community directly involved, and the integrity of the justice system required that the jury in this case proceed to a verdict on all of the evidence before it. Had I decided differently on other components of the test, in light of the minimal degree of relevance and minimal impairment of rights, I nevertheless would have dismissed the application for a stay based on the balance of interests involved.

G. CONCLUSION

[161] To summarize, I have reached the following conclusions:

(1) the Crown and the police breached their duty of full disclosure by failing to preserve video surveillance for March 18 and March 19, 2015 and by failing to disclose in a timely way everything done with the Western Digital hard drive and mirror image of that hard drive in 2015 and 2016;

(2) as a result of unacceptable negligence, potentially relevant video from March 18 and 19 was lost, resulting in sufficient prejudice to the fair trial rights of the accused to constitute a breach of s. 7 of the Charter and warrant a remedy;

(3) any prejudice to the defence was minimal and was adequately addressed through concessions by the Crown, adjournments, and instructions to the jury similar to the remedy provided for in Bero;

(4) there was no misconduct by the Crown or police and no deliberate attempt to mislead the defence or the court or to keep evidence away from the defence;

(5) there was no conduct by the Crown or police or prejudice to the defence that could be said to meet the first requirement for a finding of abuse of process either in the main category or residual category of abuse of process;

(6) even if there could be said to be prejudice, it was adequately addressed by the other remedies provided, and the second requirement for abuse of process was also not met; and

(7) even if the first two requirements had been met, I would not have stayed the charge because the interest in having a trial on its merits far outweighs any minimal impairment of the rights of the accused and there is no conduct of the police or Crown to warrant the extreme remedy of a stay of proceedings.

[162] In the result, for the foregoing reasons, I dismissed the application for a stay. This is without prejudice to the defence to raise the issue of financial compensation from the Crown if there is evidence to support any economic loss to the accused as a result of the delayed disclosure.

[163] After I dismissed the application for a stay, the trial proceeded before the jury. After nearly two full days of deliberations, the jury convicted both accused of second degree murder.

[164] This was a long and difficult trial for all involved, fraught with problems including, but not limited to, the disclosure issues I have referred to in this decision. For the most part, all counsel were professional and courteous in their dealings with each other and with the Court. However, at times, tempers flared. I consider that to be an understandable offshoot of the frustration level amongst all counsel. I also recognize that defence counsel must be fearless in their duty to advance every proper argument to protect the rights of their clients. That said, as was noted by my colleague Code J. in R. v. Walton, “To make speculative and unsupported allegations of serious misconduct by counsel, especially in the face of a factual record that strongly suggests no such misconduct, is irresponsible.”[^46] Counsel’s duty to zealously advance the interests of their clients does not extent to making serious accusations of wrongdoing against fellow counsel in the absence of a sound basis for doing so.

[165] In R. v. Felderhof,[^47] the Ontario Court of Appeal referred to the old adage that “a trial is not a tea party” and commented that this has nothing to do with counsel not conducting themselves within the ethical principles of civility established by the Law Society of Upper Canada and within their responsibilities as officers of the court. The Court referred with approval to the long-established principle in Rondel v. Worsley, in which Lord Reid said, in part that, “[c]ounsel must not mislead the court, [and] he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession.”[^48] In Groia v. Law Society of Upper Canada (involving the same trial and same lawyer as in Felderhof), a different panel of the Ontario Court of Appeal reinforced this principle, again citing Rondel v. Woreley:

The advocate’s duty of professionalism encompasses both the duty of zealous advocacy and the duty of courtesy and civility. Lord Reid’s famous statement in Rondel v. Worsley, [1969] 1 A.C. 191, at pp. 227, captures this principle well:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession…[^49]

[Emphasis added by the Court of Appeal.]

[166] Also as noted by the Court of Appeal in Groia, this is not a new principle. It has strong roots in the unwritten codes of professional ethics for lawyers going back many generations. One example of judicial recognition of this principle is the 1975 Ontario Court of Appeal decision in R. v. Elliott (per Jelly J.A.):

I consider it most unfortunate that any counsel, carried away by his enthusiastic support of his client’s cause, should permit himself, by reason of his client’s instructions, to make allegations inferring unjust conduct on the part of the Court, or unprofessional conduct on the part of brother solicitors without first satisfying himself by personal investigations or inquiries that some foundation, apart from his client’s instructions, existed for making such allegations. His duty to his client does not absolve a solicitor from heeding his duty to the Court and to his fellow solicitors.[^50]

[167] A lawyer’s reputation for honesty and integrity is vital to his or her ability to practice his profession. In order to properly represent a client, it may sometimes be necessary to impugn the honesty of opposing counsel. However, this should never be done without a sound evidentiary basis. In this case very serious allegations were made with respect to the honesty and integrity of Crown counsel, all of which I have found to be completely without foundation. It troubles me that accusations of this nature would be made in the absence of any evidence whatsoever to support them. I say this not to be gratuitously critical of counsel in this case, nor to suggest that their conduct was equivalent to that of counsel in some of the cases I have mentioned above. However, it has been my experience that in recent years counsel are increasingly willing to accuse other counsel of “misleading the court” or “misrepresenting the evidence” without appreciating that these are extremely serious accusations going to the very heart of the other counsel’s professional integrity. This is a trend I find disturbing, and one I hope will not continue. I need say no more.

MOLLOY J.

Released: March 13, 2020

APPENDIX “A”

Lost Evidence

(pages 45-59 of the jury charge)

(a) The Nature of the Problem

[1] In every criminal case, the police investigating an offence have an obligation to preserve all relevant evidence and provide that evidence to the Crown attorneys who will be prosecuting the case. The Crown has a duty to disclose to the defence any and all information and material in its possession or control that is relevant to the charges. That includes not only the evidence to be relied upon by the Crown in prosecuting the case but also any other information or material if there is a reasonable possibility it could be useful to the defence. The duty of disclosure arises at an early stage in the proceedings, but it is an ongoing duty. If new information comes to the attention of the police or the Crown at any time during the course of the proceedings, or if there some is a reason to reassess the relevance of information they already have, there is a duty to disclose this information at the earliest possible opportunity.

[2] In this case, the police and the Crown failed to completely fulfill their duty to preserve evidence known to be relevant and to make full and timely disclosure of all relevant evidence. This breach relates to the video evidence from 7 Richgrove. No issue is raised as to the disclosure of video and other evidence in relation to 44 Willowridge. Further, no issue is raised with respect to any other aspect of the police investigation. The sole issue you can consider with respect to the adequacy of the police investigation relates to the missing video from the Richgrove complex.

[3] By March 25, 2015, the Toronto Police service were considering Curtis and Corey Murray as suspects and were aware of the possible relevance of video footage from 7 Richgrove. They had by then conducted interviews of both Samelia Wiltshire and Fabion Townsend. At that time, it was incumbent upon the police to obtain and preserve video footage from the relevant cameras at 7 Richgrove and the exterior cameras at 21 Richgrove for the whole of the period from March 18, 2015 to March 24, 2015. On March 27, 2015, the police applied for and obtained a search warrant entitling them to seize all video for 7 Richgrove from March 17, 2015 at 12:01 a.m. to March 24, 2015, at 11:59 p.m. A search warrant is only permission to search for and seize specified potential evidence; it is not an order directing them to do so. However, the point is that there was nothing to prevent the police from preserving all of this footage at that time, and it would have been prudent for them to do so. Instead of doing that, they chose to download only selective periods of time between March 19 and 21, 2015. In particular, the video they seized consisted of the following:

• March 19—clip from the south stairwell at 1.23 a.m.

• March 19—clip from moving room and 4:00 a.m.

• March 19 from 7:00 a.m. to midnight

• All of March 20

• March 21 from midnight until 7:00 a.m.

(See Exhibit 71(b) and (c))

[4] On April 2, 2015, in relation to a completely different and unconnected homicide investigation, Det. Dickinson directed that the entire hard drive in the DVR machine at 7 Richgrove be seized. The hard drive was seized and turned over to the Toronto Police Tech Crimes division and stored in their vault. It sat in the vault until 2;29 pm on June 23, 2015 when D.C. Vadivelu signed it out as he had received a request from Det. Barnes to conduct an examination of it. Upon an initial review of the hard drive, D.C. Vadivelu determined that there was proprietary software used and that he would need to have the DVR itself to do an examination. He sent an email to Det. Barnes requesting that he bring the DVR to him. In preparation for what D.C. Vadivelu believed would be his subsequent analysis of the hard drive, he used a software program (Raptor Imaging) to create a mirror image of the hard drive for storage on their server. The program had started to run but had not completed by the time D.C. Vadivelu went home for the day. Meanwhile, unbeknownst to D.C. Vadivelu, the homicide officers who had directed seizure of the hard drive decided they no longer needed to pursue this area of investigation. They made inquiries of the team investigating the murder of Trevor Seraphine and it was decided to transfer the hard drive to the custody of that team. By 11:00 on the morning of June 24, 2015, the hard drive had been returned to the police and later given to D.C. Williams at 23 Division. Therefore, D.C. Vadivelu never did an analysis of the hard drive. Further, he considered his role in analyzing the hard drive to be “pending” because of his request for the DVR, and he did not check to see if the mirror image had properly downloaded. Further, he did not record in his notes that he had made a mirror image. There was no record that he had done so.

[5] When D.C. Williams was given the hard drive on June 24, 2015, he put it in his locked desk drawer. On July 6, 2015, he was asked by one of the homicide detectives to see if he could extract video for March 24, 2015 from 12:30 to 6:30 p.m. He understood there was no rush for this and he did nothing for about a year. Nothing was done with the hard drive until May 2016, when the preliminary hearing was about to begin, at which point Mr. Wilson asked if there was additional video available, over and above the specific clips previously provided to the Crown, and which the Crown had already disclosed to the defence.

[6] For present purposes, it is not necessary to detail everything that went wrong after that. Suffice to say that D.C. Williams, who had no training and no prior experience downloading video directly from a hard drive, attempted to do so. What he retrieved was what has been fairly described as a “mishmash” of video consisting of short small clips of a few seconds from different cameras interspersed with similar clips from other cameras, all without any kind of organization and with no file system and no ability to search. Both the D.C. Williams and the Crown considered this footage to be unusable. Although reference was made from time to time to the “corrupted video” which the Crown was trying to get access to and also to the fact that there was a hard drive, the notes of D.C. Williams were not disclosed (as they should have been) and the data D.C. Williams had managed to download was also not disclosed (which it should have been). The defence was therefore unaware of extent of the problem. The Crown and police made efforts to render the data useable by retaining the manufacturer (Watchnet) to see what they could do, and also making inquiries of the Chinese company that manufactured the software. None of these efforts were successful.

[7] The trial started. The extent to which the defence was unaware of the true state of affairs with the video became apparent during Mr. Boni’s cross-examination of Samelia Wiltshire, which you may recall. Ms. Wiltshire testified that after the Hasty Market incident on March 18, 2015 she and Curtis Murray went back to 7 Richgrove. She said that Corey Murray was also there. She identified Curtis Murray as one of the men in the stairwell later that night, actually at 1:24 am March 19, 2015. Mr. Boni challenged her on her evidence of having gone back to 7 Richgrove based on the fact that there was no video showing her entering the building that evening or night. His understanding was that the police had the hard drive and he had been given all of the relevant video from the hard drive from March 18, which did not include any of Ms. Wiltshire, Curtis Murray or Corey Murray entering the building. Mr. Wilson objected. He understood that the question was unfair to Ms. Wiltshire because he knew that only selected clips of video were available and that she and Curtis therefore could have entered the building at times not shown on the available footage. You may recall that I excluded you from the courtroom at that time and explored the issue with counsel. It was clear that the Crown had never disclosed the entire footage from March 18. I therefore advised you when you returned to the courtroom that Mr. Boni had simply been mistaken about the extent of the videotape seized by the police and that although there was no corroboration of Ms. Wiltshire’s testimony that they returned to 7 Richgrove, neither could it be said based on the video that they had not done so. Over the next few days, a clearer picture as to the extent of the misunderstanding as between the Crown and the defence emerged. The defence was not aware of all of the things done by D.C. Williams and Watchnet in 2016 and 2017 in respect of the hard drive, because they had not been given full disclosure of it. This was not a simple mistake by Mr. Boni, it was a fundamental misunderstanding as to the nature of the video he had been given, caused by the fact that the disclosure was not as complete as it ought to have been. Understandably, the defence was not confident that D.C. Williams and/or Watchnet had the expertise to state definitively that the hard drive was completely corrupted and no useable data could ever be retrieved. I agreed. Mr. McKay is a well-regarded expert in forensic analysis of video, his expertise being recognized by both the Crown and defence, as well as by myself. Hence, the first adjournment. The hard drive and the DVR were sent to Vancouver to see if Mr. McKay could remedy the situation and extract full video for all the relevant dates. Again, for present purposes, I do not consider it necessary to dwell at length with everything Mr. McKay tried and all of the problems with the hard drive. Suffice to say that although he was able to download a considerable amount of data, there was no file system, the data was still completely intermingled and disorganized, and it was not functionally searchable. There were also big gaps in the available video. In particular, there appeared to be nothing for March 18 through to March 24. Further, on a somewhat related issue, it is not your task to base your factual findings on any alleged inadequacies in the police investigation at large. Your sole concern is to assess the impact of the lost footage of March 18 after 6 through March 19 at 7 a.m. on the assessment of reasonable doubt. Whatever was in the minds of the police when they laid this charge, in particular whether they thought they had a strong or a weak case, is absolutely irrelevant to your analysis. Speculating on why one brother was arrested five days after the other brother is improper and you must not do it. There can be any number of reasons for that and those reasons are not before you in evidence, because they are not relevant to anything you have to decide. You heard no such evidence at trial for the simple reason that it would not be relevant or admissible. The alleged opinion of the police as to their case against Corey Murray being weak is pure speculation and would be no more admissible than the opposite opinion that their case against him was strong. Simply put, the opinion of the police is irrelevant. Your decision must be based solely on the evidence at this trial, or the absence of evidence, for example, the impact of this lost video footage from the evening of March 18 to March 19 at 7 a.m., and whether upon reviewing all of the evidence you are satisfied beyond a reasonable doubt as to the guilt of the accused.

[9] All through this period of time, nobody knew that D.C. Vadivelu had at least attempted to create a mirror image of the hard drive. D.C. Vadivelu made no note of it at the time, and when asked about it, had no recollection of doing it and said it was not the case that he would always made a mirror image. Bear in mind that he never actually did any analysis of the hard drive itself. It was only at the point when the evidence in this trial was virtually complete that the existence of the mirror image was discovered. That was the reason for the second significant adjournment. A copy was made of the mirror image and it was sent to Mr. McKay to see if this might, finally, solve the problem of the missing video.

[10] Unfortunately, as you have heard in evidence, the mirror imaging did not complete successfully. You do not need to be concerned about the reasons for that, whether the hard drive was already missing data by the time D.C. Vadivelu got it, or whether it was damaged in some way when it was extracted from the DVR, or whether D.C. Vadivelu damaged it in some way. For your purposes, it really does not matter. There was some video footage retrieved from the hard drive that had not previously been available, specifically from 12:01 a.m. to 5:52 p.m. on March 18, 2015. Apart from that, nothing was recovered for the relevant period for which video was sought. In the end result, video for relevant periods of time, which should have been preserved by the police and provided to the defence, has been lost.

[11] The potentially relevant video that is now lost is as follows:

• March 18 from 5:52 p.m. until midnight

• March 19 from 12:01 am to 7:00 a.m., with the exception of clips showing the two men in the south stairwell at about 1:24 a.m. and Samelia Wiltshire and Corey Murray entering the building at about 4:00 a.m.

• March 21 after 7:00 a.m.

[12] I now turn to what impact this has on your analysis in this case.

(b) Impact on your Analysis

[1] Given the failure of the police to preserve potentially relevant video evidence, it is open to you to take this failure into account in assessing the weight of the evidence. It is not disputed that this evidence: (a) could have been preserved; and (b) should have been preserved; and (c) was not preserved. In these circumstances, it is open to you to conclude that the evidence that was lost would not support the position of the Crown. You may conclude that, or you may choose not to. It is entirely for you to say. In considering how to treat this lost evidence, you should have regard to the nature of the evidence that is lost, how directly relevant it is to the offence charged, and any explanation provided for the loss. I can tell you that the defence is in no way to blame for the loss of this evidence; the blame lies entirely at the feet of the Crown and the police. That said, there are gradations of blame for the loss of evidence. At one end of the spectrum would be deliberate steps taken by police to knowingly destroy evidence directly relevant to a defence raised by the accused. At the other end of the spectrum is a simple mistake or human error as a result of which some small piece of evidence was not collected properly, or was misfiled somewhere and cannot be found. The problem in this case lies somewhere between those extremes. I have already made a ruling in this case that none of this was done deliberately, either by the police or the Crown. However, there was clearly some negligence involved at the time the first seizures of video were made and subsequently in the efforts to retrieve further data. It is for you to determine the extent to which it affects your analysis. You may consider that the lost evidence should be presumed to favour the defence, but you are not required to do so. You may consider that it gives rise to a reasonable doubt, but you are not required to do so. You may also, if you choose analyze the impact of the missing evidence in the context of what it might relate to and decide how it affects your analysis in each distinct situation. You must not, however engage in an analysis based on some notion that the police and/or the Crown have deliberately acted to keep relevant evidence away from the defence, or away from you. That is simply not the case.

[2] Samelia Wiltshire testified about the altercation in the Hasty Market parking lot on March 18, 2015. She said that after that incident, she and Curtis Murray returned to the apartment at 7 Richgrove and that Curtis and another man were also there. She was shown video footage of two men going down the stairs in the south stairwell at 1:24 a.m. The defence have accepted the truth of Samelia Wiltshire’s identification of them in all video footage where their faces can be seen. However, they do not admit identity for this video of the two men seen in the south stairwell at 1:24 a.m. on March 19, 2015. The faces of the men cannot be seen. Samelia Wiltshire identified one of the men as Curtis Murray. That man was wearing a Brawlers jacket similar to the one worn by Curtis in other video before and after that time. Ms. Wiltshire was unable to identify the other man. This is the video in which the two men come down the stairs, the man in the Brawlers jacket goes outside while the other man (wearing what appears to be a hoodie turned inside out), waits at the door, and then both go back upstairs.

[3] If all the video footage from all entrances to 7 Richgrove for March 18 and March 19 was available, you would be able to confirm the accuracy of Ms. Wiltshire’s testimony that Curtis and Corey Murray were in the building. Of course, even if they were there, that does not mean that they are the men in the stairwell at 1:24 a.m., but at least it would be possible. Without the video, you may consider whether there is other evidence to corroborate Ms. Wiltshire’s recollection of that night, such as the testimony of Mr. Townsend that he saw both brothers outside the building at 10:00 p.m. and the video footage of Corey Murray entering with Ms. Wiltshire at 4:00 a.m. (compare the shoes and pants worn). Such evidence may be useful, although not as definitive as the full video footage of all entrances would have been. Of course, you are free to accept Ms. Wiltshire’s sworn testimony on the point if you find it to be credible and reliable. Corroboration is not required. However, you should also consider the fact that if the defence had the full video, it might show that Curtis Murray did not enter the building at anytime between the Hasty Market incident on March 18, 2015 and 1:24 a.m. on March 19, which would undermine Ms. Wiltshire’s identification of him in the stairwell, and could also potentially be used by you as an indication that her evidence as a whole might not be credible or reliable. Given that this evidence has been lost, it is open to you to conclude that Curtis Murray and Corey Murray were not there that night. Alternatively, you may choose merely to reject Ms. Wiltshire’s identification as being unreliable due to the lack of corroboration, but not go the next step and conclude the Murray brothers were not in the building. Even if you reject Ms. Wiltshire’s identification because of the missing evidence, it is still open to you to consider whether, based on the whole of the evidence, Curtis and/or Corey Murray were in the south stairwell at 1:24 a.m., as shown on the video. Or, you may accept Ms. Wiltshire’s evidence on this point as being reliable and credible. This is entirely your decision. You do not need to be unanimous on this. Each of you can make your own decision on how to treat it.

[4] Another area in which you may find that the missing video has an impact is the testimony of Fabion Townsend about seeing two men, who he identified as Corey Murray and Curtis Murray, pounding on the top of the red Mazda in the parking lot. Although there is video of the incident Mr. Townsend described in the parking lot the next day (March 19), there is no video for the time period on March 18 when the banging on the roof is said to have occurred. Again, it is open to you to simply accept Mr. Townsend’s evidence on this. It is certainly not the case that all testimony needs to be corroborated before it can be accepted. However, given the lost evidence issue, it is also open to you to discount this testimony on the basis that if the defence had the video to which they were entitled, they might have been able to contradict Mr. Townsend’s testimony on the issue. As I have said before, how you treat it is entirely up to you and you do not need to be unanimous on it.

[5] A third area of potential impact relates to the movements of the car relied upon by the Crown. You will recall seeing that video from the early morning hours of March 21, 2015 in which a car passes by Willowridge, goes around the circle, and exits by Richgrove Road. Det. Price then directed your attention to a series of flickering lights along the back of the 21 Richgrove apartment building. It was suggested to you that you could conclude this was the same car as you had seen circling in front of Willowridge. Each time, the next time you see that alleged vehicle is as it enters the 7 Richgrove parking lot. There is a camera at the back of 21 Richgrove. Because of the angle it faces, it would not be able to capture the continuous movement of a vehicle going across the back of 21 Richgrove, but it would have caught a brief image of the car as it rounded the corner at the south edge of 21 Richgrove and headed towards 7 Richgrove. The footage from that camera for the relevant times in the early morning hours of March 21, 2015 is lost. As with the other two examples I discussed, you may, but are not required to, determine that this footage would not have assisted the Crown. As with the other categories, this is entirely for you to decide and you do not need to be unanimous.

[6] The fourth area of potential impact is the possibility that the lost evidence might have had footage of other people wearing clothing and shoes similar to those worn by Curtis Murray and Corey Murray. This is a circumstantial case in which identification is based, to a significant extent, on the clothing worn by the perpetrators. It is therefore open to you to take into account that if the defence had the full footage it would contain images of other people wearing similar clothing. Before doing so, however, you may wish to consider the points set out below.

(i) The individual items of clothing are not alleged to be particularly unique, but rather it is the combination of those items that is distinctive.

(ii) The shoes are alleged to be unique, but you have had specific evidence addressing how common they are.

(iii) The defence has significant footage from 7 Richgrove and 44 Willowridge, including extensive video of many people in the Willowridge lobby during the Block Friday sale, and has not sought to direct you to any video footage of people wearing similar clothes or shoes. Ms. Freeman referred to some blue and orange Nike shoes being on sale at the Block Friday sale. D.S. Price did not confirm that these shoes were Nikes, and he described them as being aqua and pink. That is merely his opinion. You can look at the footage for yourselves and determine whether the shoes are similar to the ones worn by the gunman (See Exhibit 59, 44 Willowridge, front lobby4-23-40—the shoes in question are being handled by Mr. Champagnie, the man wearing the red tee short, at 4:23:44)

(iv) There is no particular magic to the video from 7 Richgrove. Footage of people walking around anywhere in the same time frame would also demonstrate how common the items might be.

[7] As with the other areas I have discussed, how you treat this issue in your analysis of the evidence is entirely up to you and you do not need to be unanimous. You must be fair to the defence if you find that they have been harmed in any way by the loss of particular pieces of video that the police ought to have preserved. However, any notions of misfeasance by the police must not be part of your analysis. Emotion has no place in your assessment of the impact of the lost evidence. Your personal feelings about the police conduct must be set aside. In considering the impact of the lost evidence, you are not to consider how the loss of this evidence would make either accused, or the family of Trevor Seraphine “feel”.

[8] Further, on a somewhat related issue, it is not your task to base your factual findings on any alleged inadequacies in the police investigation. Whatever was in the minds of the police when they laid this charge, in particular whether they thought they had a strong or a weak case, is absolutely irrelevant to your analysis. You heard no such evidence at trial for the simple reason that it would not be relevant or admissible. The alleged opinion of the police as to their case against Corey Murray being weak is pure speculation and would be no more admissible than the opposite opinion that their case against him was strong. Simply put, the opinion of the police is irrelevant. Your decision must be based solely on the evidence at this trial, or the absence of evidence, and whether upon reviewing that evidence you are satisfied beyond a reasonable doubt as to the guilt of the accused.

[9] Finally, it follows that speculating on why one brother was arrested five days after the other brother is improper and you must not do it. There can be any number of reasons for that and those reasons are not before you in evidence, because they are not relevant to anything you have to decide.

APPENDIX “B”

(Other References to Lost Evidence in the Jury Charge

Excerpt: Theory of the Defence for Curtis Murray (Jury Charge page 65)

…The way police dealt with some of the video was unacceptable and raises concerns about the adequacy of the proof in this case…

Excerpt: Theory of the Defence for Corey Murray (Jury Charge page 67)

The position of the defence on behalf of Corey Murray is as follows:

The Crown's case against Corey Murray was weak from the outset of trial, and once the lost video evidence came to light, it went totally downhill from there. Because of the lost video from 7 Richgrove from between March 18 at 6 p.m. through to March 19 at 4a.m., you should be wary of relying on any evidence that cannot now be corroborated because the video from that time period is missing, particularly with respect to whether Corey Murray was even in the building at the time the Crown alleges he was coming down the south stairwell at 1:23 a.m. on March 19. …

Excerpt: Credibility and Reliability of Idenitfication Evidence (Jury Charge p. 75)

…There is no video available from 7 Richgrove for the period between 5:52 p.m. on March 18 and 1:24 a.m. on March 19 when the video clip of these two men in the south stairwell

begins. I remind you of my earlier instructions under the heading “Lost Evidence” as to how this may affect your consideration. …

Excerpt: Identification (Jury Charge p. 83)

… You may also wish to review the footage from the Block Friday sale, in particular Ex. 59 at 4:23:44 (see my earlier instruction on Lost Evidence).

Excerpt: Motive and Townsend Evidence re March 18 Incident (Jury Charge p. 98)

…This period of time is part of the period for which there is no video available and is subject to my instruction to you about lost evidence. There is nothing to directly corroborate Mr. Townsend’s evidence on this point. It is entirely up to you whether you will draw any inferences in respect of this evidence based on the fact that the potentially corroborating or contradicting evidence has been lost.

Excerpt: Motive and Damage to Tires of Mazda (Jury Charge p. 99)

. . .There is no direct evidence as to who damaged those tires. However, you may wish to consider whether the two men in the south stairwell at 1:24 a.m. on March 19, 2015 may have had something to do with it, given the timing, the location, and their attempts to hide their identities. This also is affected by the lost evidence issue, as there is no video to confirm whether Curtis Murray entered 7 Richgrove after the altercation at the Hasty Market on March 18. You may, however, consider that Fabion Townsend’s evidence at least corroborates that Curtis and Corey were in the parking lot of the building, depending on whether or not you accept his evidence on this point.

[^1]: R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.) [Bero].

[^2]: The rulings I made on the pretrial motions heard in 2018 continued to apply in the 2019 trial. Those rulings: dismissed an application to exclude evidence obtained from a search (R. v. Murray #1, 2018 ONSC 3053, 410 C.R.R. (2d) 146); allowed an application to admit evidence of post-offence conduct (R. v. Murray #2, 2018 ONSC 2570, 147 W.C.B. (2d) 481); and, dismissed an alternate suspects application (R. v. Murray #3, 2018 ONSC 3060, 147 W.C.B. (2d) 265). Additional motions were brought in September 2019. Some were resolved or abandoned. Others were the subject of oral rulings.

[^3]: It is clear from the video that Curtis Murray got back into the waiting car. Whether Corey also got back into the car was a question of fact left for the jury. The video is quite blurry. However, my conclusion is that the video shows both brothers getting back into the car. Further, the fact that the jury convicted both brothers of second degree murder supports that conclusion.

[^4]: R. v. Murray #5, 2019 ONSC 6325, at paras. 27-28.

[^5]: R. v. Bero, supra note 1; see also R. v. Dulude (2004), 2004 CanLII 30967 (ON CA), 189 C.C.C. (3d) 18 (Ont. C.A.).

[^6]: R. v. Murray #5, supra note 4.

[^7]: I will deal with the substance of their evidence in my analysis of the evidence on the application for a stay of proceedings.

[^8]: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R.; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35.

[^9]: R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at p. 472; R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at para. 17.

[^10]: R. v. La, supra note 9, at para. 21.

[^11]: R. v. Bero, supra note 1, at paras. 30 and 32; R. v. La, supra note 9 at para 20; R. v. Sheng, 2010 ONCA 296, 209 C.R.R. (2d) 48, at paras. 33-35.

[^12]: R. v. Bero, supra note 1, at para. 30, citing R. v. F.C.B. (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540, at p. 547-548 (N.S.C.A.).

[^13]: R. v. Bero, supra note 1, at para. 42

[^14]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at paras. 63 and 73; R. v. Babos; R. v. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-32.

[^15]: R. v. Babos, supra note 14, at para. 32.

[^16]: Ibid, at para. 34.

[^17]: Ibid, at para. 35.

[^18]: Ibid, at para. 41.

[^19]: Ms. Wiltshire was mistaken in her recollection that anything relevant happened on March 17; the incident she described as being on either March 17 or 18 actually happened on March 18.

[^20]: Although the investigating officers did not seize any video from March 18, 2015, the video from midnight until 5:52 p.m. was recovered by Mr. McKay from the mirror image created at Tech Crimes. Therefore, the missing footage for March 18 is the period after 5:52 p.m.

[^21]: The full text of my jury charge dealing with the lost evidence is attached as Appendix “A”, consisting of the general instructions on Lost Evidence and specific references to ****

[^22]: I note that this approach had also been taken by D.C. Vadivelu, who has considerable expertise and qualifications in the area.

[^23]: I note that D.C. Williams had the same problem when he tried to view the hard drive in the DVR.

[^24]: R. v. Barnes, 2009 ONCA 432; R. v. Darwish, 2010 ONCA 124.

[^25]: In my earlier decision on the recusal motion I incorrectly stated that this pretrial was in July 2019. There was a further pretrial in July 2019, but the one in which the corrupted video was referenced was on November 28, 2016.

[^26]: R. v. Sheng, supra note 11, at paras. 34-35.

[^27]: R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80

[^28]: Ibid, at paras. 35-40, particularly para. 35.

[^29]: Jury Charge, at para. 50.

[^30]: R. v. Murray #5, supra note 4, at para. 27.

[^31]: R. v. O’Connor, supra note 14, at paras. 63 and 73; R. v. Babos, supra note 14, at paras. 58-72.

[^32]: R. v. O’Connor, supra note 14, at paras. 68, 82.

[^33]: R. v. Bradford (2001), 52 O.R. (3d) (C.A.), at para. 6, leave to appeal dismissed, [2001] S.C.C.A. No. 131 (June 11, 2001).

[^34]: Ibid, at para.8, see also paras. 6-8 and 46.

[^35]: See Appendix “A” to this decision.

[^36]: Jury Charge, at pages 53-54, see Appendix “A”.

[^37]: Jury Charge, at pages 54-56, see Appendix “A”.

[^38]: Jury Charge, at pages 56-57, see Appendix “A”.

[^39]: Jury Charge, at pages 57-58, see Appendix “A”.

[^40]: Jury Charge, at page 67, see Appendix “B”.

[^41]: e.g. Jury Charge, at pages 75, 83, 98 and 99, see Appendix “B”.

[^42]: R. v. Bero, supra note 1, at para. 67.

[^43]: Supra note 5.

[^44]: R. v. Dulude, supra note 5, at, para. 44.

[^45]: R. v. Taillefer; R. v. Duguay, supra note 8, at para. 118.

[^46]: R. v. Walton, 2019 ONSC 928 at para. 99.

[^47]: R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481, 235 D.L.R. (4th) 131, 17 C.R. (6th) 20, 180 C.C.C. (3d) 498 (C.A.)

[^48]: Ibid, at para. 95, citing Rondel v. Worsley, [1967] All E.R. 993 at p.998, [1969] 1 A.C. 191 (H.L.) at pp. 227-228

[^49]: Groia v. Law Society of Upper Canada, 2016 ONCA 471 at para. 133.

[^50]: R. v. Elliott (1975), 1975 CanLII 1501 (ON CA), 28 C.C.C. (2d) 546 at 549 (Ont. C.A.).