Court File and Parties

COURT FILE NO.: CR-20-10000153-0000 DATE: 2020-03-25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – BASHIR OSMAN

Counsel: Melissa Atkin, for the Crown Ryan Handlarski, for the Accused

HEARD: March 2-5, and 9-13, 2020

M.A. Code J.

Reasons for Judgement

ON S. 7 CHARTER LOST EVIDENCE MOTION

A. OVERVIEW

[1] The accused Bashir Osman (hereinafter, Osman) is charged in a three count indictment with possession of a loaded prohibited firearm, contrary to ss. 91, 92 and 95 of the Criminal Code. At the beginning of his trial, Osman brought a Motion pursuant to s. 7 of the Charter of Rights and Freedoms seeking a stay of proceedings. The trial was scheduled for three weeks with a jury. The parties assumed that the first week of trial would be devoted to hearing the s. 7 Charter Motion.

[2] Counsel for Osman characterized the s. 7 Motion as one that arose from the duty to disclose and preserve relevant evidence that had been lost, relying on well-known authorities such as R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.) and R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.). I ruled that the Motion should be heard at the end of the trial, prior to charging the jury and after any evidence relating to the Motion had been developed at trial. See: R. v. La, supra at paras. 27-8; R. v. Bero, supra at para. 18.

[3] As a result of the above ruling on the first day of trial, jury selection proceeded that same day. The Crown called its evidence over the next four days and the defence cross-examined the Crown witnesses in relation to both the merits and the Charter issue. The defence called its witnesses over the next two days and the Crown cross-examined in relation to both the merits and the Charter issue. Argument of the s. 7 Charter Motion was then heard, in effect as part of the pre-charge conference.

[4] During argument of the Motion, counsel for Osman wisely abandoned the remedy of a stay of proceedings and sought a jury instruction relating to the “lost evidence” issue. I ruled orally that a jury instruction was the appropriate remedy, with written Reasons to follow. After three days of deliberation, the jury was unable to reach a unanimous verdict. I declared a mistrial and discharged the jury.

[5] In the event that the s. 7 Charter issue arises again at a re-trial of this case, I have proceeded to release these written Reasons in relation to the Motion as they may be of assistance to the trial judge.

B. FACTS

[6] In brief summary, the facts relating to the merits of the case are that five police officers were on bicycle patrol in the Entertainment District of downtown Toronto during the early morning hours of January 1, 2018. It was New Year’s Eve and they had been called to a nightclub on King Street West as a result of an altercation inside the club. It was about 3:00 a.m. When the officers arrived on their bicycles, the complaint was being looked after by other officers who were already inside the club. The five bicycle officers exited the club and returned to their bicycles, which they had left at the curb on the south side of King Street West.

[7] As the five officers were either leaving or were about to leave on their bicycles, the relevant events happened on the sidewalk just to the east of the front doors to the nightclub. All of the evidence at trial was to the effect that a loaded prohibited firearm was either dropped, or was thrown, by someone who must have been standing on the sidewalk. The accused Osman was undoubtedly the person who was closest to this small black handgun. In addition, he undoubtedly moved closer, bent over, and looked down at the handgun. At this point, the accounts of the Crown and defence witnesses diverged as to what happened next.

[8] According to the five police officers, Osman must have picked up the loaded handgun and moved to the east along the sidewalk, until he was tackled by the two lead officers who had rapidly moved towards him. He went to the ground in the front door alcove of the premises located two doors to the east of the nightclub. The gun was underneath his body. After a short but vigorous struggle, the gun was recovered and Osman was arrested. Two officers – Cst. Decaire and Cst. Bronilla – provided direct evidence of “possession” to the effect that the gun had been picked up from the sidewalk by Osman and was seized from his left hand, with considerable difficulty, after he refused to give it up. Three other officers – Staff Sgt. Bui, Sgt. Epperson, and Sgt. Fairclough – provided circumstantial evidence to generally similar effect as they either saw Osman appear to pick up the gun, or they saw Cst. Decaire appear to seize it from Osman’s left hand, or both.

[9] The two defence witnesses – Osman and his girlfriend, Deqa Ali – testified that Osman never picked up the gun, after bending down and looking at it. He was almost immediately tackled by the officers in the alcove two doors to the east of the nightclub. The gun was not underneath Osman when he was arrested, nor was it in his hand, according to the defence evidence. It was implicit in the defence case that Cst. Decaire must have independently picked up the gun at some point during the brief chase and struggle on the sidewalk, and then falsely testified that the gun was seized directly from Osman’s left hand.

[10] All of the witnesses agreed that the gun somehow moved along King Street from the point where it initially came to rest on the sidewalk, just to the east of the nightclub’s front doors, to the point where it was seized in the alcove two doors to the east of the nightclub building. There were no precise measurements of this distance but it appeared to be about 10 to 15 feet. The Crown submitted that Osman had picked up the gun and carried it that distance, trying to escape while in possession of the gun, before he was tackled by the officers. The defence submitted that one of the officers kicked the gun along the sidewalk and Cst. Decaire then picked it up in the alcove. Assessing the credibility of both the Crown and defence witnesses was central to the correct resolution of these issues.

[11] The “lost evidence” s. 7 Charter Motion focused on four separate areas of the police investigation: first, the police were criticized for not seizing video surveillance footage from the front door cameras at the nightclub; second, the police did not interview any civilian witnesses who may have seen the events on the sidewalk in front of the nightclub; third, the police did not look for or review any video surveillance cameras from locations to the west of the nightclub; and fourth, Cst. Decaire “proved the gun safe” at the scene with his bare hands and then handled it a second time with his bare hands at the police station, thus compromising any possibility of obtaining fingerprints or DNA from the gun.

[12] Each of these four areas of alleged police error was the subject of evidence at trial. The first area – the video surveillance evidence from the nightclub – was addressed by three witnesses. Det. Cst. Galamiyeva was the first investigating officer from the Major Crime Unit on scene, after the bicycle officers had arrested Osman and seized the gun. She went into the club and viewed the surveillance footage from the front door cameras, together with the club manager Ryan Smyth. She concluded that the incident in question was not captured by the video surveillance cameras. Ryan Smyth testified and he corroborated Det. Cst. Galamiyeva’s account on this point. Both witnesses agreed that the video footage simply showed people stopping and then either looking or moving to the east, at the relevant time, indicating that something had just happened off camera. Although it appeared that the incident took place to the east of the front door cameras, and was not captured by the cameras, Det. Cst. Galamiyeva asked Mr. Smyth to make a copy of the relevant video footage for the police to pick up. She wanted to check it more carefully, to make sure she had not missed anything. Unfortunately, she forgot to make a note on the file of the need to follow up and pick up a copy of this video footage. She simply spoke to her colleagues in the Major Crime Unit about the matter and made a note that she had checked the nightclub cameras and “the incident was not caught…was out of view.” She was working overtime on New Year’s Eve, she was going to be away from work on holidays for the next two weeks, other priorities intervened when she returned to work, and it simply slipped her mind to make a note about the need to follow-up. A few weeks later, at the end of January 2018, the Crown inquired about any video surveillance. The officer-in-charge, Det. Cst. Shufman, looked into the matter and discovered that the video surveillance footage from the nightclub had been over-written and was no longer available.

[13] Det. Cst. Galamiyeva also testified about the failure to interview any civilian witnesses. The arresting officers advised her of one potential eye witness, namely, Osman’s girlfriend Deqa Ali. The police arranged to interview Ms. Ali and she was taken to the police station. However, she declined to give a statement about the relevant events. None of the arresting officers mentioned any other potential witnesses to Det. Cst. Galamiyeva. She felt that it was their investigation and so she did not look for any other civilian witnesses. Staff Sgt. Bui testified that he expected the Major Crime Unit detectives to canvass for potential civilian witnesses, including the front door staff at the nightclub. Mr. Smyth, the club manager, testified that he would have made his door staff available if the police had asked to interview them.

[14] The third area of the police investigation addressed in the s. 7 Charter Motion related to any other video surveillance cameras in the vicinity of the nightclub. Det. Cst. Galamiyeva understood that the incident occurred to the east of the nightclub and so she checked this area for video surveillance cameras. In the three business premises directly to the east of the nightclub, including in the alcove where the arrest occurred, she found no exterior or interior cameras. She did not check the area to the west of the nightclub. Det. Cst. Shufman, the officer-in-charge, agreed that there are surveillance cameras to the west of the nightclub but he did not think they would be useful. He also testified that the police have to prioritize their cases and he did not think that this case required further investigation.

[15] The final area of the police investigation addressed on the s. 7 Charter Motion related to the handling of the seized firearm. All the witnesses agreed that it was a particularly cold night. As a result, the bicycle patrol officers were wearing heavy winter mittens or gloves. Cst. Decaire explained that the dexterity required, in order to “prove the gun safe”, meant that he had to remove his heavy gloves. Staff Sgt. Bui agreed with Cst. Decaire on this point. However, the officers also agreed that they may have been carrying thin plastic gloves in their bicycle bags, which could have been used. Alternatively, it may have been possible to hold the gun by its handle with one gloved hand while “proving it safe” with one bare hand. Finally, the officers agreed that there was no justification for Cst. Decaire’s further handling of the gun with his bare hands at the station. Cst. Decaire agreed that this was a mistake on his part.

[16] The gun was submitted to Forensic Identification Services (FIS) for examination. No fingerprints were found. It was swabbed for bodily fluids but the swab was not sent to the Centre of Forensic Sciences (CFS). Det. Cst. Shufman explained that he made this decision for two reasons. First, the gun had been handled by Cst. Decaire so there was potential contamination. Second, the CFS prioritizes its work and will not test samples from guns for DNA in cases where the gun has been seized directly from the accused, due to their overwhelming DNA testing workload.

C. ANALYSIS

[17] The s. 7 Charter duty to preserve evidence flows from the duty to disclose evidence. As Sopinka J. explained in R. v. La, supra at paras. 16-23, speaking for the majority, “the obligation of the Crown to disclose all relevant information in its possession” is protected by s. 7 of the Charter. As a result, “the Crown’s duty to disclose gives rise to an obligation to preserve relevant evidence”. He explained that the scope of the duty to disclose determines the scope of the duty to preserve, stating that “the duty of the Crown and the police [is] to preserve the fruits of the investigation.” He went on to state that the duty to preserve is itself a s. 7 obligation because the duty to disclose depends on it: “The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant.”

[18] In R. v. Bero, supra at paras. 30-32, Doherty J.A. gave the judgement of the Court and similarly stressed the linkage between the duty to disclose and the duty to preserve. He stated:

The proper approach where any accused claims that the failure to preserve material in the possession of the Crown results in a breach of a Charter right is found in R. v. La, supra. That approach is conveniently summarized by Roscoe J.A. in R. v. F.C.B. (2000), 142 C.C.C. (3d) 540 at 547-8 (N.S.C.A.):

(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. (4) If the explanation [for a failure to preserve] establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

An accused’s right to disclosure of relevant information in the possession of the Crown is a component of the right to make full answer and defence which is in turn a principle of fundamental justice. Hence, the failure to preserve information which, if preserved would be disclosable to the defence under R. v. Stinchcombe, supra, will constitute a breach of an accused’s constitutional right to disclosure of the Crown’s case as protected by s. 7 of the Charter, unless the Crown can advance a satisfactory explanation for the failure to preserve the evidence: R. v. La, supra, at pp.106-7.

Also see: R. v. Hersi (2019), 373 C.C.C. (3d) 229 at paras. 25-34 (Ont. C.A.)

[19] Applying the above principles, I am of the view that most of the criticisms of the police investigation, as advanced by Osman in this case, do not engage the Crown’s duty to preserve and disclose relevant evidence. That is because most of the potential evidence that is the subject of the s. 7 Charter Motion – the video surveillance evidence, the civilian witness interviews, and DNA test results from the gun swab – was never in the possession of the Crown or the police and was, therefore, never subject to a duty to disclose (and preserve) relevant evidence. In fact, most of this evidence may never have existed. It is more accurately described as “potential evidence” that was never sought or obtained by the police.

[20] The defence attack on the police investigation in this case, when properly characterized, does not rest on s. 7 Charter principles. Rather it depends on pre-Charter common law precepts concerning the adequacy of the investigation and the impact of any investigative failings on the Crown’s burden of proof beyond reasonable doubt. Once again, Doherty J.A. explained this distinction in R. v. Bero, supra at paras. 56-8:

Before the constitutionalization of the criminal process, there were, of course, cases where the police had failed to preserve relevant evidence or failed to take investigative steps which should have been taken. In those situations, defence counsel would turn those failings to the advantage of the accused through cross-examination aimed at bringing out the inadequacies in the investigation and the effect those inadequacies may have had on the information available to the trier of fact.

The absence of evidence can, in some cases, be an important consideration in determining whether the Crown has proved its case beyond a reasonable doubt. As Cory J. said, in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 at 14 (S.C.C.), a reasonable doubt may be “derived from the evidence or absence of evidence.” The absence of evidence may be particularly important to the defence where, as here, no defence evidence is called. Prior to the Charter, many an acquittal could be attributed to the police failure to preserve evidence or otherwise to conduct a proper investigation.

The Charter has not diminished defence counsel’s forensic arsenal. The defence is still entitled to demonstrate inadequacies or failures in an investigation and to link those failures to the Crown’s obligation to prove its case beyond a reasonable doubt. In this case, the trial judge prohibited that line of defence. [Emphasis added].

[21] Alleged inadequacies in a police investigation, in and of themselves, do not amount to violations of s. 7 of the Charter. The Court of Appeal made this point succinctly in R. v. Barnes (2009), 83 W.C.B. (2d) 326 (Ont. C.A.): “As the law now stands, a failure to adequately investigate a case does not give rise to an independent Charter violation.” In the following year, Doherty J.A. elaborated on the above principle in Barnes, when giving the judgement of the Court in R. v. Darwish (2010), 252 C.C.C. (3d) 1 at paras. 29-43 (Ont. C.A.):

An accused does not have a free-standing constitutional right to an adequate investigation of the charges against him or her: R. v. Barnes, 2009 ONCA 432 (Ont. C.A.), at para. 1. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in-and-of-themselves constitute a denial of the right to make full answer and defence.

An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. As Hill J. put it in R. v. West, [2001] O.J. No. 3406 (Ont. S.C.J.), at para. 75, the defence cannot, through a disguised-disclosure demand, "conscript the police to undertake investigatory work for the accused". See also: R. v. Schmidt (2001), 151 C.C.C. (3d) 74 (B.C.C.A.), at para. 19. That is not to say that the police and the Crown should not give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. Criminal investigations involve the use of public resources and the exercise of intrusive powers in the public interest. Responsibility for the proper use of those resources and powers rests with those in the service of the prosecution, and not with the defence.

Nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences. The Crown's disclosure obligation was recently described in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. The court, at para. 22, reiterated the Crown's obligation, subject to very limited exceptions, to make timely disclosure to an accused of all relevant material "in the possession or control of the Crown". The Crown's disclosure obligation will also require the Crown, in response to defence requests, to take reasonable steps to inquire about and obtain relevant information in the possession of some third parties.

I see a vast difference between requiring the Crown to take reasonable steps to assist an accused in obtaining disclosure of relevant material in the possession of a third party, and requiring the Crown to conduct investigations that may assist the defence. The former recognizes an accused's right to relevant information and the practical advantage that the Crown may have over the defence when it comes to obtaining that information from some third parties. The latter would require the prosecution to effectively surrender control of the investigation to the defence, or ultimately face a stay of the criminal charges.

The disclosure obligation rests on the premise that material in possession of the prosecutorial authorities that is relevant to a criminal prosecution is not the "property" of the Crown, but is rather "the property of the public to be used to ensure that justice is done": R. v. Stinchcombe, 1991 SCC 45, [1991] 3 S.C.R. 326 at p. 333. This rationale fully justifies the broad disclosure obligations imposed on the prosecution with respect to material that is in existence. It does not justify an approach that would permit the defence to dictate the course of the investigation to prosecutorial authorities.

The distinction between the right to the disclosure of the fruits of an investigation and a right to demand an additional investigation is made clear in R. v. Daley, 2008 BCCA 257 (B.C.C.A.). In Daley, the complainant in a sexual assault case had been examined following the assault by a nurse. The results of that examination were placed in a "sexual assault kit". The police preserved the kit, but did not attempt to have the samples it contained forensically examined. Disclosure of the kit was made to the defence. The defence argued that, as the samples were potentially exculpatory, the Crown was obliged not only to disclose their existence to the defence, but also to have the necessary forensic tests performed.

The British Columbia Court of Appeal unanimously rejected this submission, stating, at para. 15:

The Crown's obligation was to disclose what could be inculpatory or exculpatory evidence. It did so. Once the appellant had knowledge of the existence of the kit, it was open to him to have it examined and he could easily have done so. He evidently chose not to. [Citations omitted.]

An interpretation of the right to make full answer and defence that imposes a duty on the prosecution to investigate possible defences is also irreconcilable with the basic features of the criminal justice system. No doubt, the Crown has obligations to an accused and to the administration of justice that go beyond those normally imposed on opposing counsel in litigation. However, the criminal justice system remains essentially an accusatorial and adversarial one. The prosecution, which includes the Crown and the police, is charged with the responsibility of investigating and prosecuting crime in the public interest. To do so, the prosecution must investigate allegations, lay charges and prove those charges in a criminal proceeding. To properly perform these functions, the prosecution must decide on the nature and scope of an investigation. The accused is entitled to the product of that investigation, but is not entitled to dictate the nature or scope of that investigation.

Giving this kind of control over the conduct of an investigation to the accused, who is, after all, the target of that investigation, is unworkable. It turns the adversarial process at least sideways, if not upside down. [Emphasis added].

[22] Applying the above principles set out in La, Bero, Barnes, and Darwish to the present s. 7 Charter Motion, I am satisfied that the only relevant evidence that was ever in the possession of the police, and was therefore subject to a duty to disclose and preserve, was the surveillance camera footage from the front door cameras at the nightclub. Even this evidence was never personally or physically in the possession of the police. However, Det. Cst. Galamiyeva had been given access to it, had viewed it, and had requested a copy of the relevant excerpt. The club manager, Ryan Smyth, had agreed to provide this requested copy. The police simply failed to follow-up by attending at the nightclub and picking up the copy. In all these circumstances, a copy of the video footage was in the effective or constructive possession of the police. For all practical purposes, the nightclub was holding a copy of the relevant footage for the police.

[23] However, the loss of this relevant evidence only gives rise to a s. 7 Charter violation of the duty to disclose, if its loss was due to “unacceptable negligence,” as explained in R. v. La, supra at paras. 20-21 and in R. v. Hersi, supra at paras. 29-34. In this regard, “the relevance that the evidence was perceived to have at the time” is an important consideration. Greater care is required in relation to obviously important evidence. Det. Cst. Galamiyeva did not believe that the video footage captured the relevant events on the sidewalk to the east of the nightclub. The manager of the nightclub, Ryan Smyth, agreed with Det. Cst. Galamiyeva on this point. Indeed, all the evidence at trial, including from the accused Osman, was to the effect that the front door cameras would not have captured the relevant events (or, at best, were unlikely to have captured these events). This video surveillance footage would have provided some evidence as to the number of persons present at the front doors at the time, although the camera angle did not provide a complete picture of everyone present. In other words, the lost evidence was partially relevant to one of the surrounding circumstances. It was, therefore, marginally relevant evidence.

[24] In addition, Det. Cst. Galamiyeva explained the loss of this evidence. She testified that she told her colleagues who were present in the Major Crime Unit that night, that she had ordered a copy of the front door video surveillance from the nightclub and that someone would need to follow-up, as she was about to leave on a two week holiday. She was working overtime and she failed to leave a note in the file of this requested follow-up. As a result, Det. Cst. Shufman never became aware of the request for follow-up. He was not working on New Year’s Eve. He was named officer-in-charge of the case the next day, when he came in to work and read the file. He was the officer who would have been responsible for any follow-up, such as ensuring that the video had been copied and then picked up, had he been aware of this further step that needed to be taken. When Det. Cst. Galamiyeva returned from holidays, she was immediately assigned to a high priority shooting case, where the suspect had not been arrested and where the gun had not been seized. As a result, she did not follow-up herself concerning the nightclub video surveillance in the present case.

[25] In all these circumstances, the loss of the front door video surveillance from the nightclub was not due to “unacceptable negligence”. It was marginally relevant evidence that was lost due to a minor error in Det. Cst. Galamiyeva’s record keeping and due to a number of other minor unfortunate circumstances, as summarized above.

[26] As a result, there was no s. 7 violation in this case due to a breach of the duty to make disclosure. The Court in La set out two other potential bases for finding a s. 7 violation in “lost evidence” cases, neither of which was pressed during oral argument. In my view, the above circumstances do not begin to approach an abuse of process. In addition, the lost evidence was not so significant that it caused “actual prejudice to [Osman’s] right to make full answer and defence”, as explained in R. v. La, supra at paras. 24-5. At best, the lost video surveillance evidence required a series of speculative inferences before it could have provided any assistance to the defence; for example, that it would show a large crowd present at the front door to the nightclub, that within such a large crowd it was more likely that some criminally disposed person would attempt to get rid of a loaded prohibited firearm (due to the police presence), that the chosen means of getting rid of the gun would be throwing it along the sidewalk towards Osman, and that this throwing action could not be seen on the video surveillance because it must have occurred outside the camera angle. See: R. v. Barnes, supra, where the relevance and utility of the lost “video tapes” was similarly described as “speculative” by the Court of Appeal.

[27] Given that there was no s. 7 “lost evidence” violation in the present case, the accused was not entitled to the particular jury instruction that is set out at the end of R. v. Bero, supra 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.

See: R. v. Barnes, supra at paras. 1-2; David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd Ed. 2015, Final 43 at pp. 432-3; R. v. Abreha, 2019 ONCA 392 at paras. 12-15 and 42-46; R. v. Hersi, supra at paras. 35-39.

[28] However, the inability of the defence to make out any s. 7 Charter violation relating to “lost evidence”, does not exhaust the accused’s and the Crown’s right to an appropriate jury instruction. The broad issue of alleged inadequacies in the police investigation, and any resulting impact on the Crown’s burden of proving guilt beyond reasonable doubt, still remains. As the Court of Appeal put it in R. v. Barnes, supra at para. 4, “it would have been preferable if the trial judge had referred to the lack of the video tapes along with some of the other evidence casting doubt on the identification,” even though there was no s. 7 Charter violation in that case. Similarly, in R. v. Bero, supra at paras. 56-8, Doherty J.A. referred to the pre-Charter common law principles at play in cases where no constitutional violation has occurred, and which continue to inform the appropriate jury instruction in such cases. See also: David Watt, Watt’s Manual of Criminal Jury Instructions, supra Final 68 at pp. 1193-4; R. v. Laing (2015), 33 C.R. (7th) 48 at paras. 42-6 (Ont. C.A.); R. v. Perlett (2006), 212 C.C.C. (3d) 11 at paras. 60-62 (Ont. C.A.).

[29] It is not easy to craft an appropriate jury instruction in a case like the present one, where there is no s. 7 Charter violation and the real issue is alleged inadequacies in the police investigation. The above authorities concerning an appropriate jury instruction in this kind of case – Barnes, Bero, and Watt’s Manual – all link this issue to the standard instruction in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 at 14 (S.C.C.), to the effect that reasonable doubt can arise from an “absence of evidence”. However, because the allegedly missing evidence has never been obtained, there is inevitably a certain amount of speculation involved in these cases, whenever argument is made about the missing evidence and what it might have revealed. This was the situation in Barnes where the Court described the potential effect of the missing tapes as “speculative”. To similar effect, in R v. Bero, supra at paras. 49 and 55, Doherty J.A. pointed out that the missing evidence may have helped the defence or it may have “confirmed the Crown’s case, or it may have produced information that supported neither the Crown nor the defence.” As a result, Justice Watt’s model instruction reminds the jury that a reasonable doubt cannot be “based on speculation”.

[30] In light of the above authorities, the Charge to the Jury should include the standard Lifchus instruction on “absence of evidence”, in the early part of the Charge setting out the meaning of reasonable doubt. In addition, when summarizing the evidence relevant to the critical essential element of the three offences charged, namely, the element of “possession”, the Charge should include reference to the allegedly missing evidence. However, it should be stressed that this is simply “one factor”, to be considered together with all the other direct and circumstantial evidence relating to the alleged “possession” of the prohibited handgun. Reference to the allegedly missing evidence will also figure prominently in the part of the Charge setting out the “Position of the Defence.” Finally, after summarizing this body of evidence relating to alleged inadequacies in the investigation, and the police explanations for not taking these steps, the following concluding instruction should be given:

There is no right to a perfect investigation. No one is expected to work to a standard of perfection, including the police. There is also no right to direct the conduct of a criminal investigation of which you are the target, as a matter of common sense. Finally, the police are not required to investigate potential defences. The criminal process remains adversarial and the accused is responsible for preparing the defence. However, you have heard admissible evidence and submissions in this case suggesting that the police investigation of the offences with which Mr. Osman is charged was inadequate.

That is because when deciding whether Crown counsel has satisfied you beyond a reasonable doubt that it was Mr. Osman who committed the offences with which he is charged, you are entitled to take into account, along with the rest of the evidence you have heard, any gaps in the evidence. You have heard evidence that the police did not ask the CFS to test the firearm for DNA, did not attempt to seize video surveillance footage from any other cameras that might have been in the area (aside from the nightclub cameras, where efforts were made), and did not attempt to conduct interviews of any potential civilian witnesses in the vicinity (aside from Ms. Ali, where efforts were made). Consider whether any of these potential sources of evidence would likely have produced relevant evidence and whether the police decisions not to pursue these avenues of investigation were reasonable or unreasonable. In this regard, I have summarized the evidence above in Section “S” of the Charge, explaining whether this evidence may or may not have been helpful and why it was not pursued.

As you consider this evidence, along with the rest of the evidence, remember that a reasonable doubt can arise from an absence of evidence, provided it is based on reason and common sense. It must be a doubt that logically arises from the evidence, or the lack of evidence. It is not an imaginary or frivolous doubt based on speculation, sympathy or prejudice.

D. CONCLUSION

[31] For all the above reasons, I was satisfied that there was no s. 7 Charter violation due to “lost evidence,” based on the principles set out in La. Nevertheless, the accused and the Crown were entitled to an instruction relating to proof beyond reasonable doubt and any gaps in the evidence, based on the pre-Charter common law principles that emerge from Barnes, Darwish, Bero, and Lifchus.

M.A. Code J.

Released: March 25, 2020