Court File and Parties
COURT FILE NO.: CR-17-338 DATE: February 4, 2020
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Tim McCann for Her Majesty the Queen
- and -
ALBERT TREMBLAY AMANDA RUDDY
Cedric Nahum for the Accused Tremblay Mellington Godoy for the Accused Ruddy
Accused
HEARD: December 10, 2019
RULING REGARDING LOST/UNDISCLOSED EVIDENCE
Introduction
[1] This is an application for a stay of proceedings or alternatively for an order excluding evidence gathered:
i. During the search of a house at 1351 Westmeath Road and; ii. From the office of Dr. Brian Baxter,
because the applicant’s rights to full disclosure under Section 7 of the Charter were violated.
[2] The charges involved in this case arose as a result of a pharmacist who became suspicious that Amanda Ruddy had obtained opioids using a fraudulent prescription. The police investigation led to the medical office of Dr. Brian Baxter and to Ms. Ruddy’s partner, Albert Tremblay. Both of them were patients of Dr. Baxter. In addition to being patients, they performed cleaning services for Dr. Baxter and had access to his office after business hours.
Lost Photographs
[3] The police obtained a search warrant to search a property thought to be occupied by Ms. Ruddy and Mr. Tremblay at 1351 Westmeath Road. The search team consisted of several officers including Det. Cst. David Schilling, his superior, Det. Sgt. Liam Watkins and Cst. Keltie Milloy who acted as the scene of crime officer (“SOCO”) responsible for securing any exhibits seized during the search. Her tasks included photographing, documenting, labelling, sealing and safeguarding the exhibits.
[4] Cst. Milloy testified that the photographs she took of the exhibits were copied to a DVD and given to Det. Sgt. Watkins. Det. Sgt. Watkins put the DVD on Det. Cst. Schilling’s desk at the detachment. Det. Cst. Schilling said he never got the DVD. No back up copies of the photographs were made. The DVD containing the photographs has not been found.
[5] Det. Sgt. Watkins said a backup copy of the photographs was supposed to be placed on a computer. Cst. Milloy was not aware of this requirement and did not keep or save any copies. She had not worked as a SOCO or exhibit officer before.
Position of the Applicants
[6] The Crown has a duty to preserve and disclose relevant evidence. The right of an accused person to proper disclosure is a fundamental component of the right to make full answer and defence. If the applicants demonstrate there is an air of reality to the contention that the missing evidence would have assisted their defence and that the loss has prejudiced their right to make full answer and defence, the Crown has breached its duty to disclose.
Position of the Respondent
[7] The Crown agrees that lost evidence is similar to undisclosed evidence. The question that arises is twofold:
- Did the failure to disclose have an effect upon the applicants’ right to make full answer and defence?
- Did the conduct of the police in failing to disclose violate fundamental principles underlying the community’s sense of decency and fair play and cause prejudice to the integrity of the judicial system?
[8] Where either of these effects is demonstrated on a balance of probabilities, a violation of s.7 will have been demonstrated.
[9] Where the failure to disclose occurred because the evidence was lost, the inquiry is the same except that it will be incumbent upon the Crown to explain the absence of the evidence. After this explanation, however, it will be up to the accused to satisfy the trial judge that his or her right to full answer and defence has been impaired or that an abuse of process has occurred.
Discussion and Analysis
[10] When the prosecution or the police have lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. If the trial judge is satisfied that the evidence has not been lost owing to unacceptable negligence, the duty to disclose will not have been breached.
[11] The Court must analyze the circumstances surrounding the breach including considering whether the police took reasonable steps to preserve the evidence for disclosure and how relevant the police would have perceived the evidence to be at the time.
[12] The applicants point to the following factors in support of their position. No back up copy of the photographs were made. The images were not downloaded into a computer. The delivery of the DVD by Det. Sgt. Watkins to Det. Cst. Schilling by placing it on his desk as opposed to a direct handoff, with no apparent follow up to ensure it was received, was inadequate. Efforts to retrieve the images from the camera appear to have been minimal. It is not clear if the memory card for the camera was checked.
[13] The respondent notes that Cst. Milloy provided a detailed description of the photographs from her notes. Importantly, the exhibits themselves have been filed.
[14] I do not agree that the photographs were or would have been highly relevant. The photographing of items as they were collected to become exhibits was ancillary to the search and seizure process. The seized items were catalogued and preserved. The exhibits themselves are available to the applicants. In addition, in many instances individual officers made notes of what they found in their duty books and were cross-examined about their involvement in the search and what they found.
[15] I conclude that the loss of the photographs of the exhibits as they were collected does not constitute unacceptable negligence and does not deprive the applicants of the right to make full answer and defence. There should be no exclusion of evidence as a result of the loss of the photographs.
[16] Finally, even if the Crown or the police are not found to have breached the duty to disclose, a section 7 breach may occur when the applicants demonstrate actual prejudice. In all the circumstances I am not persuaded that the applicants have established actual prejudice.
Incomplete Records
[17] On or about August 31, 2016, at or near the beginning of the police investigation in this case, Det. Cst. Schilling attended at Dr. Baxter’s office and spoke with Dr. Baxter and members of his staff, including a longtime employee by the name of Kathleen Deschambeault.
[18] At trial Ms. Deschambeault explained that most prescriptions, especially prescriptions for opioids, were faxed from Dr. Baxter’s office to the dispensing pharmacy. It seems that this is a more secure manner of handling opioid prescriptions by reducing the risk of unauthorized alterations to the prescription by drug-seeking patients. As a result of this method of issuing prescriptions, the hard copy of the prescription was not provided to the patient and remained at Dr. Baxter’s office.
[19] The practice in Dr. Baxter’s office was for the issued prescriptions to be stored in the file boxes that were initially located on file cabinets in the secretaries’ work area. When a file box was filled, which took a month or so according to Dr. Baxter, it was taken from the secretaries’ work are to a storage room. As a result, the storage room had many file boxes for different time periods, with each box being organized alphabetically.
[20] Ms. Deschambeault showed Det. Cst. Schilling how prescriptions were stored alphabetically in file boxes.
[21] Det. Cst Schilling testified that Ms. Deschambeault provided him with two “questionable” prescriptions, both made in relation to Amanda Ruddy and dated June 8, 2016 and June 15, 2016 respectively. He said the copies that he was shown were faxed documents that had been sent back to Dr. Baxter’s office from the pharmacies involved. He said he signed and dated the documents and kept them.
[22] These documents were obtained without the authorization of a production order. They were placed in Det. Cst. Schilling’s file and not documented as exhibits. He did not refer to these documents or the fact that they were in his possession when he prepared the Information To Obtain (“ITO”) for the search warrant that authorized the search of the property and house at 1351 Westmeath Road.
[23] About a year later, on or about August 10, 2017, Det. Cst. Schilling asked Ms. Deschambeault to come to the detachment to provide a statement. He asked her to bring “prescription receipts” relating to Ms. Ruddy and Mr. Tremblay. By this time Det. Cst. Schilling had in his possession a document referred to as a narcotics control data sheet. These sheets summarize opioid prescriptions issued to patients based on reporting from Ontario pharmacists. Det. Cst. Schilling’s evidence about these documents was initially confused and unclear. Later in his examination in chief he said he requested Ms. Deschambeault to bring “receipts” that were on file at Dr. Baxter’s office from January 1, 2016 to present (ie. August, 2017). He wanted to compare the receipts on file at Dr. Baxter’s office with the information recorded on the narcotics control data sheets. They didn’t match for a period of time during 2016 but after Ms. Ruddy and Mr. Tremblay had been charged by the police and released from custody and Dr. Baxter resumed prescribing for them, the prescription receipts and the narcotics control data sheets did match. Det. Cst. Schilling said that Ms. Deschambeault did not leave the prescription receipts with him.
[24] Ms. Deschambeault said she was uncertain whether she left any documents with Det. Cst. Schilling at the second meeting at the detachment.
Position of the Applicants
[25] The position of the applicants is that according to Ms. Deschambeault, she gave Det. Cst. Schilling certain documents at their two meetings that have not been disclosed to the defence. The applicants suggest that these undisclosed documents were legitimate prescriptions from Dr. Baxter’s records that would be highly probative in determining what prescriptions, if any, are fraudulent. Not having access to the legitimate prescriptions provided to Det. Cst. Schilling makes it more difficult for the applicants to cast doubt on the allegedly illegitimate prescriptions.
[26] The applicants further contend that these documents were not properly logged as exhibits and that Det. Cst. Schilling did not have lawful authority to take possession of them. They say that the only possible explanation for Det. Cst. Schilling’s failure to properly document the procurement of this evidence is that he knew that this evidence was obtained in violation of the applicants’ Charter-protected rights to privacy in their medical records.
Position of the Respondent
[27] The respondent says Det. Cst. Schilling obtained two faxed copies of prescriptions for Amanda Ruddy on August 31, 2016 while at Dr. Baxter’s office. These prescriptions were dated June 8 and 15 respectively.
[28] The respondent says that Det. Cst. Schilling was clear in his evidence that he did not receive additional documents in addition to the two faxed copies of prescriptions that he noted. The Crown cannot disclose documents that it never had.
Discussion and Analysis
[29] There is disagreement between the applicant and the respondent as to whether Ms. Deschambeault provided additional documents to Det. Cst. Schilling although they agree that on August 21, 2016 Ms. Deschambeault provided two faxed copies of prescriptions to Det. Cst. Schilling. These documents were not disclosed to the applicants in the usual course of disclosure but were included in a binder of documents prepared by Crown counsel for use at trial. They subsequently became exhibits #26 and #27.
[30] In my view the evidence of Ms. Deschambeault regarding what documents she gave to Det. Cst. Schilling does not go as far as the applicants contend. Her evidence on this point was uncertain because she had difficulty recollecting what she may have given to the police. She did not clearly say that she gave Det. Cst. Schilling copies or original versions of allegedly legitimate prescriptions.
[31] Det. Cst. Schilling testified he was certain he did not receive additional documents from Ms. Deschambeault.
[32] While I accept that Det. Cst. Schilling received copies of exhibits #26 and #27 from Ms. Deschambeault, I am not prepared to find as a fact that Det. Cst. Schilling received additional documents from Ms. Deschambeault that have not been disclosed.
[33] I also accept that he did not have authority to seize these documents. They are documents in which the applicants have a legitimate expectation of privacy and in my view, the possibility that the prescriptions are not genuine doesn’t change this. Also, they were not disclosed in a timely fashion. I find that as a result, the applicants’ Charter rights under both section 7 and 8 have been breached.
[34] What is an appropriate remedy? A stay of proceedings is not warranted. Firstly, this is not an abuse of process situation. Secondly, the Charter-infringing conduct falls far short of warranting such a drastic remedy.
[35] I recognize that there is a distinction between evidence obtained in a manner that infringes a Charter right (warrantless seizure) and the exclusion of evidence that may be found to be inadmissible due to a subsequent transgression (failure to disclose). Having determined that there is a direct link between these two exhibits and the breach of the applicants’ Charter rights, I have also considered whether section 24(2) applies. In the result I have determined that even if section 24(2) applies, these exhibits should be found to be inadmissible for the following reasons.
a. Whether the documents were “offered” to the police or whether Det. Cst. Schilling requested them makes no difference to the applicants’ privacy interests; b. Neither Dr. Baxter nor his medical staff were entitled to waive the privacy interest of the applicants; c. The documents were not referred to in the ITO for the search warrant; d. The documents were not treated or catalogued as exhibits; and e. The documents were not disclosed until trial.
[36] In terms of the Grant factors, as for the seriousness of the Charter-infringing conduct, Det. Cst. Schilling would have been aware that documents that have even potential evidentiary value, ought to be handled in accordance with police procedures applicable to exhibits yet he did not do so. Also, there is the issue of late disclosure. These considerations weigh in favour of exclusion. As for the impact on the applicants’ Charter-protected interests, the privacy interest that attaches to medical records including prescriptions is high. This consideration also weighs in favour of exclusion. As for society’s interest in a trial on the merits, I do not regard this evidence as pivotal to the prosecution’s case. Also, it is well established that if the first two factors weigh in favour of exclusion, the application of the third factor will seldom lead to a different result.
[37] In the result, I have determined that the evidence does not support a finding that Ms. Deschambeault gave to Det. Cst Schilling any documents in addition to the documents that were marked as exhibits #26 and #27 and that for the foregoing reasons, these two exhibits are found to be inadmissible.
Mr. Justice Martin James DATE RELEASED: February 4, 2020