COURT FILE NO.: CR-19-00001609-0000
DATE: 2021 07 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Haejun Rim for the Crown
- and -
SUJENDRA PERINPAMOORTHY
Christopher Murphy for the Defendant
HEARD: June 4, 2021 by Zoom conference
PUBLICATION IS BANNED PURUSANT TO 486.4 OF THE CRIMINAL CODE OF ANY INFORMATION WHICH COULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS RULING CONFORMS TO THIS PUBLICATION BAN.
CHARTER RULING
D. E. HARRIS J.
[1] In my ruling dated February 23, 2021, it was ordered that a DVD originally in the exclusive possession of the defence was to be copied and delivered to the Crown and police: R v. Perinpamoorthy, 2021 ONSC 1364, 170 W.C.B. (2d) 553 (Ont. S.C.J). The present ruling concerns the evidentiary use of the DVD at trial. The defence says that the DVD ought not to be admitted into evidence or used in any way at the instance of the Crown.
[2] The DVD was ordered sealed in a previous proceeding heard in early March of 2020: see R. v. Perinpamoorthy 2020 ONSC 1551 (Ont. S.C.J.). To reiterate what was explained in the last ruling, the accused is charged with sexual assault and sexual interference along with other charges. At the time, he was 19 years old and the complainant was 14 years old. He was more than five years older than her which restricts the defences he can raise: see Section 150.1(1), (2.1), (4) of the Code. The main allegation with respect to the sexual counts is that on February 4, 2017, there were two acts of sexual intercourse in a Motel 6.
[3] In this case, Mr. Murphy disclosed to the prosecution his possession of a DVD video and he obtained advice from senior lawyers and from the Law Society. In the earlier proceeding, I ordered the video sealed and only to be unsealed by court order. All other copies in defence counsel’s possession were ordered destroyed.
[4] According to defence counsel, the video is a “selfie” apparently taken by the accused. His hand is shown on the complainant’s breast, over her clothing. It was taken while the accused and complainant were inside the room at the Motel 6 on the day of the alleged sexual offences. As I noted, the video is likely child pornography under Section 163.1 of the Criminal Code.
[5] The February 23, 2021 ruling held that the defence was ethically required to hand the DVD over following the judgment in R. v. Murray, (2000) 2000 CanLII 22378 (ON SC), 144 C.C.C. (3d) 289, 34 C.R. (5th) 290, 168 D.L.R. (3d) 544 (Ont. S.C.J.) and Rule 5.1-2A (Incriminating Physical Evidence) of the Law Society of Ontario’s Rules of Professional Conduct.
DECISION
[6] It is Mr. Murphy’s position that the DVD is compelled evidence and its use at trial by the Crown would consequently violate Sections 7 and 11(d) of the Charter of Rights and Freedoms. It would lead to an unfair trial.
[7] Mr. Murphy’s argument is that he was required to bring an application to the court under Section 278.94 of the Criminal Code to use the DVD at the trial. It is a record of the complainant under Section 278.1 and therefore its admissibility fell to be analyzed under the production of records regime established in Part VIII of the Code. Mr. Murphy was required to disclose it in the Part VIII voir dire proceeding: see the provision for admissibility for records in the possession of the defence, Section 278.92. A judicial ruling that it is admissible is required for the DVD to be used by the defence at trial: Section 278.94(4).
[8] The Crown now intends to use the video either in its case or to cross-examine the Applicant or both. Mr. Murphy asserts that the Crown is prohibited from using it as the knowledge that it existed and its physical presence arose within the Part VIII voir dire process.
[9] Although there is no need for a definitive opinion on the matter, Mr. Murphy is likely correct that a record produced by the defence under Section 278.92 for the purpose of obtaining a judicial ruling on admissibility, would not generally be admissible at the instance of the Crown. However, the determination of that issue can await another day.
[10] There is, in my opinion, a flaw in the defence argument which obviates the need to tackle this issue. The voir dire involving the DVD, although in the context of the Section 278.1 record regime, was pushed to the background by the rules of professional conduct which govern the way in which defence counsel must deal with physical evidence received from the accused. The DVD was held by the defence and it was evidence of a criminal offence. It likely constituted child pornography. These facts being established, the use to which the DVD was to be put by the defence was subsidiary to the issue of whether the DVD had to be disgorged. Although at the time, the case was in the midst of a Section 278.1 regime voir dire, that was incidental. Mr. Murphy had an obligation to act in the manner he did quite apart from the voir dire which he brought on behalf of his client.
[11] The requirement that the DVD be turned over, like the issue of the Bernardo tapes in R. v. Murray, (2000) 2000 CanLII 22378 (ON SC), 144 C.C.C. (3d) 289, 168 D.L.R. (3d) 544 (Ont. S.C.J.) pre-empts other rules of evidence. The operative principles are that physical evidence of a crime is not protected by solicitor client privilege and, more to the point, that concealing direct physical evidence of crime could lead to the lawyer being found guilty as an accessory after the fact or of attempting to obstruct justice. Officers of the court cannot be party to the criminal offences of their clients. This would lead to the undermining of the integrity of the system.
[12] The ethical responsibilities debated over many years involving the bloody shirt, the Bernardo tapes or other instrumentalities of crime, were the driving force not only behind the requirement that the evidence be given over to the authorities but to its subsequent use. To prohibit the Crown from the use of the DVD at trial would be incongruous with the reason that it was ordered disclosed in the first place.
[13] The ultimate question is whether there would be an unfairness to the accused or damage to the integrity of the judicial system if the Crown is permitted to use the DVD at trial: R v Bjelland, 2009 SCC 38, paras. 19, 23-24. Although it was not argued expressly, the crux of the defence objection appears to be that the accused’s right against self-incrimination has been violated by forcing him to turn over the DVD and then permitting the Crown to use it against the Applicant at trial. The major authorities exploring the meaning of the right against self-incrimination are R. v. White (1999), 1999 CanLII 689 (SCC), 135 C.C.C. (3d) 257 (S.C.C.); R. v. P. (M.B.) (1994), 1994 CanLII 125 (SCC), 89 C.C.C. (3d) 289 (S.C.C.); R. v. S. (R.J.) (1995), 1995 CanLII 121 (SCC), 96 C.C.C. (3d) 1 (S.C.C.); and R. v. Fitzpatrick, (1995), 1995 CanLII 44 (SCC), 102 C.C.C. (3d) 144 (S.C.C).
[14] As has been emphasized in those cases, the right against self-incrimination requires an approach particularly sensitive to context: Fitzpatrick, at paras. 31-32; White at paras.40-48. As was said in White, at para. 45,
The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue.
[15] The present context is quite unlike other applications of the right against self-incrimination. No helpful analogies present themselves. In concluding that the right against self-incrimination is not violated by allowing the Crown to use the DVD, there are several factors which stem from the self-incrimination case law:
i) The creation of the DVD pre-dated the prosecution: R. v. D’Amour (2002), 2002 CanLII 45015 (ON CA), 166 C.C.C. (3d) 477, 4 C.R. (6th) 275 (Ont. C.A.), at paras. 37-47. This may not be determinative but is a significant factor.
ii) There existed an adversarial relationship between the accused and the state when the accused and his counsel were ordered to turn over the evidence. However, the purpose of requiring the evidence to be turned over was not to assist in convicting the accused of a crime, although it could have that effect. The purpose was to maintain the integrity of the judicial system by ensuring defence counsel are not actively hindering a prosecution by concealing direct physical evidence of a crime. As officers of the court, defence counsel are in a similar position to the fishermen in Fitzpatrick who were partners in a regulatory scheme with the authorities: Fitzpartrick, at paras. 36-37. This is not a regulatory context but counsel practicing in Ontario are required to adhere to a canon of professional ethics and share its values. Ethical obligations are essential in the legal profession: White, at para. 60. No part of this obligation is adversarial.
iii) There was coercion in a limited sense here in that a judicial order forced the DVD to be disclosed by the defence but again, the purpose was not to incriminate but rather to protect the system by ensuring that ethical standards are maintained. Although this could be seen as coercive in the sense used in the case law, more accurately, it was the application of well-accepted ethical rules which bind defence counsel.
iv) There is no risk similar to that of unreliable confessions as is cited in the authorities. Direct physical evidence of a crime will generally be reliable and is so in this case.
v) There is no substantial concern with respect to abuse of power by the state. The rules and duties which led to the order that the DVD be turned over derive from professional obligations and exist apart from governmental action.
[16] In my view, fairness to the accused does not prohibit the Crown from using the DVD. The application is dismissed.
D. E. HARRIS J.
Released: July 13, 2021
COURT FILE NO.: CR-19-00001609-0000
DATE: 2021 07 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SUJENDRA PERINPAMOORTHY
CHARTER RULING
D. E. HARRIS J.
Released: July 13, 2021