COURT FILE NO.: CR-20-10000231-0000
DATE: 20211122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DUNCAN SINCLAIR
Defendant
M. Cantlon and P. Santora, for the Crown
J. Klein, for the Defendant
HEARD: November 8, 2021
molloy j.
reasons for decision
(Mistrial Application)
A. INTRODUCTION
[1] Shortly after 7:00 p.m. on April 10, 2019, a man approached the service area at Fast Fresh Foods, a shop selling sandwiches and salads on the concourse level under Commerce Court in Toronto. After pacing back and forth for a couple of minutes and peering into the employee area of the store, he walked through a door and entered the interior of the store where two employees were doing food preparation. This was an area restricted to employees only. Upon entering this area, the man exchanged brief words with one of the employees, Rae Carrington, then pulled out a large chef’s knife with a bright purple blade. He plunged the knife into Rae Carrington’s abdomen, then chased her around the store, stabbing her multiple times. Having stabbed her a total of ten times, he turned to leave, but changed his mind, returned to where she lay bleeding, and stabbed her one more time. He then walked calmly away. Rae Carrington was mortally wounded and died within minutes. The man’s approach to the store and his attack on Ms. Carrington were captured on the store’s surveillance video cameras. The images are very clear. The man’s face can be clearly seen, as can the knife.
[2] Two days later, Rae Carrington’s son, Duncan Sinclair, was arrested and charged with first degree murder. The trial commenced before me on Monday, November 1, 2021. Jury selection started that day and continued on Tuesday morning. Crown counsel delivered an opening address to the jury on Tuesday and the evidence began that afternoon. In her opening, Crown counsel told the jury that they would be shown videotape of the murder and photographs taken of the accused shortly after his arrest and that it would be open to them to come to their own conclusion that Duncan Sinclair was the man on the video killing Rae Carrington. Further, four witnesses would be called by the Crown who would identify Mr. Sinclair as the man on the video based on their knowledge of him: his boss, a coworker, his sister, and one of his brothers. Crown counsel also referred to substantial circumstantial evidence that would be led from which, she submitted, the jury could draw the inference that Mr. Sinclair was the murderer. One such piece of circumstantial evidence was the murder weapon, which the jury was advised had never been found, but which was the missing knife from a set of knives found in Duncan Sinclair’s home.
[3] Although originally slated to be a one-month trial, the evidence was completed in five days, by Monday, November 8. The last Crown witness was the officer in charge of the case, Det. Aman Nasser. By then, defence counsel had already advised the Court that no defence evidence would be called. As a result of the evidence given by Det. Nasser, the defence requested that I declare a mistrial. The next morning, November 9, 2021, I heard argument on the mistrial application. I dismissed the motion, ruling that a strongly worded instruction to the jury about the inadmissibility of parts of Det. Nasser’s evidence would be sufficient. I advised that written reasons for my decision would follow.
[4] Following the mistrial application, I heard submissions from counsel on the content of the jury charge. Counsel addressed the jury on Wednesday, November 10. I started my final instructions to the jury that day, but did not complete them. The Court was closed on November 11 for Remembrance Day observance. I completed my final instructions shortly after 10:00 a.m. on Friday morning, November 12. After deliberating for the rest of that day, the jury returned a verdict of guilty on the charge of first degree murder.
[5] My reasons for dismissing the mistrial application are set out below.
B. BACKGROUND
[6] The tragedy of this murder, a 19-year-old tracking his mother down and stabbing her to death in her workplace, must be seen within the context of the history and current situation of the family as a whole. The murder victim, Rae Carrington, had eight children – seven boys and one girl (Amber), whose ages ranged between 33 and 9 at the time of her death. For over thirty years, the family essentially lived under the radar of any government or community agency oversight. The father, Paul Sinclair, stayed at home and Rae Carrington was the principal breadwinner, often working two full-time jobs. None of the children ever attended school, nor did they ever see a doctor or a dentist. The family pulled up stakes frequently, whenever Paul Sinclair feared that police or social services had become interested in them. All of them had aliases, and were told to lie to any authorities who asked about their identity. By the fall of 2018, three of the children were no longer living in the family unit: two had fled the home and sought the protection of the CAS and one had been apprehended by the CAS many years earlier.
[7] Paul Sinclair ruled the home. He trained the children to ignore and detest their mother, whom they rarely saw anyway because she was almost always working or sleeping. Most of the children never went outside until they were over the age of 10 and then only when accompanying their mother on errands. They learned to read haphazardly, but were otherwise unschooled. When they reached the age of 16, they were required to get a job to help support the family, typically in fast food restaurants. All of their wages were turned over to their father. I heard reports that Paul Sinclair physically and mentally abused the children, and also their mother.
[8] The first child to leave the family was the third oldest, Matthew. When he was five years old, he was found wandering on railroad tracks in the wilderness and taken into care by the Children’s Aid Society (“CAS”). At the time, Paul Sinclair had been living in the woods with the three boys. Rae Carrington was pregnant with Duncan, the couple’s fourth child, and living in Toronto pending his birth. Upon finding Matthew, the CAS made further inquiries and located the rest of the family. Instead of reclaiming their son, the parents abandoned Matthew and fled with the other two children. Matthew stayed with the CAS and was later adopted. Thereafter, the family moved frequently, always seeking to avoid the curiosity of neighbours or anything that could attract the attention of CAS or the police.
[9] In 2014, Adam Sinclair (the second oldest child) left home and went into the foster care system because he wanted to go to school. The whole family immediately changed locations and Adam had no further contact with any of them, except for James who worked with him at the same restaurant. James never told Adam where the rest of the family lived. Adam did not report any of the abuse he suffered as a child until years later. In 2018, when Amber Sinclair was 15, she called 911 asking if they could provide her with the number for a Suicide Helpline she had seen on a poster in the subway when out running errands with her mother. Police responded by tracing the call and coming to the family’s home to ensure she was safe. They were told everything was fine. However, concerned about the state of the apartment and the welfare of the children, the police called CAS. Rae Carrington spoke to a CAS worker on the phone and agreed to meet with the CAS for a home visit. However, when the CAS arrived, the whole family was gone. From then on, most of the family lived on a farm property north of Napanee. However, James and Duncan lived in an apartment in Toronto, because they were working in the city. In May 2018, Amber moved into that apartment at 90 Tyndall and lived there with her bothers. She managed to reconnect with Adam and went to the CAS hoping to go into foster care as Adam had done and be able to go to school. She left the apartment on August 2, 2018, without telling any of her family members ahead of time, and was taken into care by the CAS. In the fall of 2018 first Amber, and a short while later, Adam, went to the police with accounts of years of abuse and neglect at the hands of their father and deep concerns for the welfare of their three youngest siblings who were under 16 and still in the hands of Paul Sinclair. The police commenced a missing persons investigation for the children.
[10] Police were not able to find the family until December 2018. At that point, Paul Sinclair was arrested and charged and the three youngest children were taken into the care of the CAS. Paul Sinclair was released on bail with his oldest son James as his surety. Duncan Sinclair was also in attendance with James at the bail hearings and was seen as being largely supportive of their father. Rae Carrington moved into a shelter for abused women and started to put her life back together again. She was seeking to be reunited with her three youngest children. As a result of further information obtained from the three youngest children, and from Rae Carrington, further charges were laid against Paul Sinclair and his bail was revoked.
[11] On January 9, 2019, one day after Rae Carrington gave her statement to police, James and Duncan Sinclair went to a police station seeking to have charges laid against their mother. In Duncan’s videotaped statement, which was an exhibit at the trial before me, he told the police that his mother was unstable and should not have custody of the younger kids because he was afraid she would “snap” and hurt them. For the most part, he defended his father. No charges were laid against Rae Carrington and the prosecution of Paul Sinclair on multiple charges of child abuse continued.
[12] Paul Sinclair was still in jail awaiting trial when his son Duncan murdered Rae Carrington on April 10, 2019. Paul Sinclair ultimately pleaded guilty to 12 counts of various kinds of maltreatment in relation to six of his children (all except James and Duncan). He was sentenced to three years in prison.
C. THE EVIDENCE OF DET. NASSER
Examination in Chief
[13] At the outset of trial, I made an order excluding witnesses, with an exception for the officer in charge of the case, Det. Aman Nasser. The Crown stated that there was no current intention to call Det. Nasser as a witness, but that this position might change as the trial evolved.
[14] On Monday, November 8, after all the regularly scheduled witnesses from the Crown’s witness list had been completed, the Crown advised that they proposed calling Det. Nasser briefly to “tidy up some loose ends,” stating that they had discussed this with defence counsel. Crown counsel, Mr. Cantlon, had a brief off-the-record discussion with defence counsel before proceeding. He then advised that there was an area of the evidence about which defence counsel wanted to confer with the witness before conducting her cross-examination.
[15] The jury and the witness returned to the courtroom and the examination-in-chief of Det. Nasser proceeded. Det. Nasser was led through some fairly innocuous evidence about how Mr. Sinclair was transported from Midland (where he was arrested) to Toronto (where certain property, in particular the clothing he was wearing, was seized by Toronto police). His attention was then turned to 90 Tyndall, where Toronto police had conducted a search pursuant to a warrant. He testified that he “had learned” that this was the last known address for Duncan Sinclair and James Sinclair and that he had received information that Duncan Sinclair, James Sinclair and Jormalyn Mateo lived there, stating his understanding that the latter was James Sinclair’s girlfriend. Although it was clear that this was hearsay evidence, defence counsel did not object.
[16] Det. Nasser testified that he was not present at the time the search warrant was executed. He said that a red Caravan was found in the underground and that a subsequent search of government databases showed this vehicle was registered to James Sinclair. Again, there was no objection to the hearsay nature of this evidence.
[17] Det. Nasser next discussed searching for fingerprints at the scene of the crime. In particular, he had been interested in obtaining prints from a swinging door that the murdered could be seen touching as he entered the store. He said that useable prints could not be obtained from that surface. He then filed a map of the downtown Toronto area with various relevant locations highlighted. None of this is controversial.
[18] Det. Nasser then testified about obtaining video footage from the surveillance cameras at 90 Tyndall. He said he reviewed that footage for April 9, 2019 and saw a person entering, using a fob, who looked like Duncan Sinclair. He also saw that same person leaving the building at about noon on April 10, turning back briefly, and coming back out again with a ballcap and backpack. He said that Duncan Sinclair did not appear on any video after noon on April 10, but that he saw a man he believed to be James Sinclair entering at around 8:00 or 9:00 pm on April 10. At the time Det. Nasser was viewing this footage, he had never met Duncan or James Sinclair. Defence counsel did not object to this evidence when it was being lead.
[19] Finally, Det. Nasser described efforts made by police to recover Duncan Sinclair’s cellphone. He said he had searched the garbage containers at Valu Village in Barrie, where Duncan Sinclair was known to have shopped on April 12, 2019, but that the bins were empty, the garbage having been taken away the day before. At this point, Crown counsel asked that the jury be excused, which was done. I also excused the witness.
The First Objection
[20] The Crown explained that although Det. Nasser had a memory of searching the garbage bin at Valu Village, he had not recorded anything in his notes about doing so, and had only mentioned it for the first time to the Crown lawyers over the lunch break. Therefore, defence counsel had no prior disclosure of this aspect of Det. Nasser’s testimony. Defence counsel had asked for an opportunity to consider her position and perhaps speak to the officer before starting her cross-examination, and the Crown had therefore sought a break to see if she wanted to do that.
[21] Defence counsel then advised that she had no prior disclosure about this search of the garbage bin until just before Det. Nasser started his evidence and that she would like to have a discussion with the officer about this matter before starting her cross-examination. She then added that she was also concerned about the Det. Nasser’s testimony identifying Duncan Sinclair on the videotape from the 90 Tyndall surveillance cameras. She stated that the Crown had told her that Det. Nasser was being called to “tie up loose ends” and that she had no forewarning that he would be testifying about the apartment surveillance video. She also pointed out that the Crown had not included the identification of Duncan Sinclair or James Sinclair from the apartment videos in its application relating to the admissibility of the evidence of witnesses to identify Duncan Sinclair in the video of the murder. She asked me to give an immediate midtrial instruction to the jury telling them that this evidence was not admissible. Subsequently, she said she was also thinking that she would apply for a declaration of a mistrial.
[22] The Crown’s submission with respect to the admissibility of the evidence was to tell me that “that ship has sailed.” No real justification was advanced for eliciting this evidence from Det. Nasser. I ruled that, in my view, that ship had not sailed and that I would instruct the jury that the evidence was inadmissible and they should disregard it.
Midtrial Instruction
[23] In my opinion, it was important to instruct the jury immediately, before this evidence became part of their reasoning process, that this evidence was inadmissible, to explain why it was inadmissible, and to tell them to disregard it in its entirety. Crown counsel indicated she had only one remaining question for Det. Nasser: whether his evidence with respect to the search for Duncan Sinclair’s cellphone also applied to his evidence about searching for the purple knife. I permitted that question to be asked. Det. Nasser answered that it did.
[24] I then immediately instructed the jury as follows:
Ladies and gentlemen, remember at the beginning of this trial I told you that I would be giving you final instruction at the end, but every now and then from time to time I would be giving you instructions in the middle of trial as things came up. This is one of those times. I will be covering this in much more detail in the final instructions. But right now, I want to tell you this because it will be fresh and I want it to sink home. You heard this officer give evidence just now that he went to 90 Tyndall and he pulled the video surveillance for whatever days, and that he looked at it, and satisfied himself that he had identified Duncan Sinclair coming and going on April 9 and April 10, and not after, and that he identified James Sinclair coming and going. That evidence is not admissible. None of it. This witness, at the time he looked at that video, had never even met Duncan Sinclair or James Sinclair. He didn’t know them, he had no history with them, he is not in a position to offer opinion evidence on the identity of the people saw in that video – Problem Number 1. Problem Number 2: there is no way for you to assess the reliability of his evidence, even if it was admissible, because you haven’t seen the video either. It is not part of the evidence at this trial. So, when I’m instructing you about what to do with other witnesses who identified Mr. Sinclair as the person they saw in pictures and videos, there’s a way to go about that, and there is considerable case law about what you use, how you do it, and the factors you should take into account. None of that groundwork is laid with respect to this witness saying James Sinclair was there and Duncan Sinclair was there. His opinion is not admissible, his evidence on it is not admissible, you must disabuse yourself completely of everything he said about that.
Balance of the Evidence of Det. Nasser
[25] After the midtrial instruction, defence counsel cross-examined the officer on a number of points. For present purposes, the only relevant evidence elicited from the officer was: (i) when he said that the red Caravan registered to James Sinclair was in the “underground,” he was referring to the underground parking at 90 Tyndall and that it was not him that saw the van there; and (ii) members of his team did speak to occupants of the apartment when they were executing the search warrant but that neither James Sinclair nor Jormalyn Mateo would agree to provide a statement to the police (the necessary implication being that James Sinclair and Jormalyn Mateo were in the apartment at the time of the search).
Hearsay Evidence
[26] Up until this point, defence counsel had not raised any issue with the hearsay evidence given by Det. Nasser in relation to who was living at 90 Tyndall. However, upon the conclusion of the evidence, I raised with the Crown my concerns about the hearsay evidence tendered through this witness in relation to: who was living in the apartment; the red Caravan found in the apartment’s parking lot; and the fact that the van was registered to James Sinclair. Det. Nasser did not have firsthand evidence of any of this information, nor were the Ministry of Transportation records of vehicle registration ever tendered as an exhibit. It does not matter that these were business records that the Crown could easily have tendered; the Crown did not do that. In any event, Det. Nasser cannot place the Caravan at 90 Tyndall, nor can he put either of the Sinclair brothers there, other than through hearsay evidence. The Crown provided no basis for this evidence being tendered for its truth. The defence took the position that this was additional grounds for a mistrial.
THE TEST FOR A MISTRIAL
[27] The case law is clear – a mistrial is a remedy of “last resort” and should only be declared in the “clearest of cases.”[^1] A mistrial may be an appropriate remedy where the integrity of the decision-making process has been compromised or the right of an accused to a fair trial has been put at risk.[^2] However, “less extreme remedies, such as an appropriate mid-trial instruction, must be considered and rejected as inadequate before a mistrial is granted.”[^3]
[28] In its recent decision in R. v. Barra, the Ontario Court of Appeal described the right to a fair trial in the following terms:
A fair trial is a trial that appears fair, not only from the perspective of the accused, but also from that of the community. It is not the most advantageous trial possible from the accused’s point of view. Nor is it a perfect trial. A fair trial is a trial which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the persons charged: Bjelland, at para. 22.[^4]
[29] In considering whether to declare a mistrial, it is relevant to consider the effect of the error underlying the mistrial application. Where the particular evidence is not crucial or the Crown’s case is otherwise overwhelming, a mistrial may not be an appropriate remedy.[^5] As stated by Limerick J.A. in R. v. Ambrose:[^6]
Because of the overwhelming weight of admissible evidence as set out in detail in the reasons for judgment of this Court in the appeal in R. v. Hutchison, heard at the same time as this appeal, there has been miscarriage of justice in this case. No reasonable jury properly instructed and uninfluenced by the evidence improperly admitted could in view of the admissible evidence have come to any other rational conclusion than that the appellant Ambrose was guilty of both murders.
[30] Where inadmissible evidence has been improperly put before the jury, an immediate and strongly worded instruction to disregard it is an important factor to take into account in determining whether the accused’s fair trial rights have been compromised.[^7]
ANALYSIS
Admissibility of the Evidence
[31] The officer’s testimony as to who lived at 90 Tyndall, the presence of the red Caravan in the underground, and the fact that it was registered to James Sinclair is hearsay and not admissible for its truth. Det. Nasser had no first-hand knowledge of any of this information.
[32] The Crown brought an application at the beginning of trial seeking to introduce the evidence of four witnesses identifying Duncan Sinclair as the man on the video committing the murder. It is clear from the principles established by the Supreme Court of Canada in R. v. Leaney,[^8] that this would be proper, admissible evidence and the defence appropriately conceded that issue from the outset of trial. The Crown brought no such application to introduce the testimony of Det. Nasser identifying James Sinclair and Duncan Sinclair from the video surveillance at 90 Tyndall. Had such an application been made, it would inevitably have been denied. The two people who worked with Duncan Sinclair were not asked to view these tapes to see if they could identify him, nor were Amber and Adam Sinclair asked to view the tapes to determine if they could identify either of their brothers. The tapes themselves were not put into evidence.
[33] Clearly, none of this evidence should have been put before the jury. It is hearsay and/or improper opinion evidence and not admissible.
Failure of Counsel to Object
[34] It certainly would have been preferable if counsel had objected to the introduction of the evidence before all of it was before the jury. However, I do not consider the failure to object to be a factor in determining whether or not to grant a mistrial. Duncan Sinclair has a right to a fair trial, and he did not lose that right merely because his counsel did not raise a timely objection to prevent the admission of inadmissible evidence.
[35] It is also unfortunate that I did not intervene earlier than I did. I had not realized up to that point that there was any issue as to Duncan Sinclair’s address being 90 Tyndall and had incorrectly assumed that counsel were in agreement that this uncontroversial evidence about who lived at the apartment would be put in through Det. Nasser as a matter of convenience rather than calling the officers with direct knowledge who were present for the search. Earlier in the trial, I had raised my concerns about hearsay and opinion evidence being introduced through another officer (Det. Plunkett), but was advised by defence counsel that she had not objected to this going in because she intended to use much of it as part of the defence. This evidence from Det. Nasser appeared to fall into the same category.
[36] I accept defence counsel’s explanation that she had no idea this evidence would be lead through Det. Nasser and was taken by surprise when she heard it. Obviously, it is unfortunate that this evidence was put before the jury. That said, it must be recognized that this evidence from Det. Nasser was not lead until within the last few minutes of the trial. I immediately gave a strong midtrial instruction to the jury to completely disregard the evidence, which goes some distance to mitigating any prejudice.
Relative Importance of the Evidence
[37] The murder of Rae Carrington was captured on the Fast Fresh Food’s surveillance video. The killer stabbed Ms. Carrington repeatedly with a large knife with a purple blade, which he held in his right hand. In his other hand, he held the purple sheath for that knife.
[38] When the police searched the apartment at 90 Tyndall, the found three distinctive looking Master Chef knives in three different sizes, which appeared to be part of a set. The blades of these knives were brightly coloured – green, blue and red – each with its own similarly coloured sheath. Photographs of those three knives were filed in evidence. D.C. Kristy Devine testified at trial that she owned a set of similar knives, and that there was also a fourth knife, the largest in the set, which was coloured purple. A photograph of a set of four Master Chef knives was made an exhibit at trial. Three of the knives were the same in appearance to the three found at 90 Tyndall. The fourth was purple. D.C. Tyndall testified that she searched for other knives similar to the ones found in the apartment, but could not find any apart from the ones sold in this four-piece set with the large purple-bladed chef’s knife.
[39] The Crown’s theory was that the purple knife used by the killer was the missing knife from the set in the apartment associated with Duncan Sinclair. This, it was argued, was a factor to be taken into account in determining the identity of the killer. Further, the Crown contended that Duncan Sinclair took the knife from his home when he left for work that day at around noon, which would be relevant to the planning and deliberation required for first degree murder.
[40] In order for the knife to be relevant to identity, the Crown would need to establish that Duncan Sinclair either lived in, or had access to, that apartment and could have taken the knife from there. Duncan Sinclair’s sister had testified that she had lived at 90 Tyndall with her brothers James and Duncan from May 2018 until August 2, 2018, when she went into foster care. She did not know where her brother Duncan was living at the time of the murder in April 2019, but stated that Duncan told her around Christmastime that he and James had to give up the apartment after she moved out and that they were sleeping in James’ van. Given the family history and relationships, Duncan Sinclair might not have been truthful about that. Duncan Sinclair told the police in January 2019 that he was living in a downtown Toronto apartment with his brother James and James’ friend, but he did not provide an address. That might not have been true either. Duncan Sinclair’s cellphone records show that he was in the vicinity of King and Tyndall on April 9, 2019, the day before the murder. However, that does not place him at 90 Tyndall, much less in the apartment itself.
[41] Thus, the testimony of Det. Nasser was important for the Crown in order to draw a direct and timely link between Duncan Sinclair and the missing knife alleged to be the murder weapon. Without that testimony, there were a few coincidences that might enable an inference to be drawn along with other circumstantial evidence, but no direct link to the knife.
[42] Notwithstanding this, I do not see the evidence connecting Duncan Sinclair to the knife as pivotal to the Crown’s case on the identity of the killer. Indeed, in the complete absence of any evidence connecting Duncan Sinclair to the knife, the Crown’s case on identity was overwhelming.
[43] The Fast Fresh Foods video of the killer and of the murder itself is of exceptionally high quality. The killer can be seen straight on, looking directly into the camera, with his whole face clearly visible. There are also clips from various cameras and angles inside the store of the killer walking back and forth, and of his face seen from both profiles. It would not have been easy to make an identification based solely on Duncan Sinclair’s appearance in the courtroom, as he was wearing a facemask (required by COVID-19 protocols) and large black eyeglasses. I did not require that he be unmasked in the courtroom. Instead, both Crown and defence agreed that it would be open to the jury to come to their own conclusions about identity by viewing high resolution photographs taken of Duncan Sinclair when he was arrested on April 12, 2019 and comparing those images to the person seen on video murdering Rae Carrington. In my view, the jury would have been justified in convicting Duncan Sinclair on that evidence alone.[^9]
[44] However, this method of identification was only a small part of the Crown’s case on identity. As I have already discussed, the defence appropriately conceded that four witnesses called by the Crown were qualified to give opinion evidence with respect to the identity of the killer seen on the video and in still shots taken from the video. One such witness was the owner of the Freshii franchise where Duncan Sinclair worked and who had hired him for that job. He saw Duncan Sinclair about once a week at the store for a period of over one year. He liked Duncan Sinclair and described him as a good, dependable employee. He was confident in his identification of Duncan Sinclair as the killer on the video, and he had no motive to lie. Similarly, another co-worker (Charmaine Degollacion) liked Duncan Sinclair and described him as a hard-working kid and a team player. She also had no motive to lie. Ms. Degollacion was Duncan Sinclair’s direct supervisor at Freshii. There were only about seven employees, at that location. Ms. Degollacion was very familiar with Duncan Sinclair having worked with him for over a year, with shifts that overlapped for four hours a day, five days a week. She also had no hesitation in identifying Duncan Sinclair as the man depicted in the still shot taken from the video.
[45] Two of Duncan Sinclair’s siblings also identified him from the video. Adam Sinclair had only seen his brother Duncan from a distance on two occasions after he left the home in 2014. This factor would undermine the reliability of his identification to some extent. Also, there seemed to be some ill will between Adam and Duncan, at least according to Duncan in his statement to the police in January 2019. The same is not true for Amber Sinclair. She also watched the video, but only up to the point just before her mother was stabbed. There are very clear images of the person who killed Rae Carrington in the portion of the video Amber Sinclair watched. She was unwavering in her testimony that the person on the video was her brother Duncan Sinclair. She knew her brother Duncan very well, having lived with him her whole life and seeing him every day up until August 2, 2018 when she entered the foster care system. There did not seem to be any animosity between Amber and Duncan Sinclair. In her testimony, she frequently looked in his direction, smiled shyly, and gave him little waves.
[46] Apart from Adam Sinclair’s somewhat dated basis of comparison (having left the family in 2014), there was very little to undermine the unshaken testimony of these four identification witnesses. The only weakness was that each of them was aware that Duncan Sinclair was either a suspect of or charged with the murder at the time their identification was made.
[47] When the identification evidence of four people who knew Duncan Sinclair is added to the likeness between the man in the video and Duncan Sinclair’s photographs from the day he was arrested two days later, the Crown’s evidence becomes over powering. Add to that the fact that when he was arrested, Duncan Sinclair was wearing a pair of jeans similar in appearance to those worn by the killer and that his mother’s blood was found on the jeans. The Crown’s case on identity is iron-clad.
[48] However, there was even more evidence confirming the identification. In addition to the blood on the jeans, there was substantial other circumstantial evidence from which a jury could properly conclude that Duncan Sinclair committed the murder, including the following:
(a) Motive: Duncan Sinclair blamed his mother for everything that had gone wrong with the family. He attempted unsuccessfully to have criminal charges brought against her. He was strongly motivated to prevent her from getting custody or access to his three youngest siblings.
(b) Opportunity: Duncan Sinclair’s cellphone records show he was in the vicinity of the scene of the murder at the time it was committed.
(c) Call to Locate His Mother: At 7:05 pm, Duncan Sinclair’s cellphone was used to place a call to the Fast Fresh Foods where Rae Carrington worked. The male caller asked for “Amie” (one of the aliases used by Rae Carrington) and said he wanted to bring her identification to her. Another employee brought the phone to Rae Carrington, but when Ms. Carrington picked it up, there was nobody on the line. The killer came to the counter at approximately 7:07 and asked to speak to Rae. He then pushed his way past the gate separating the public area from the staff only preparation area at the back. He went directly to Rae Carrington. She appeared to know him. A co-worker testified that he asked Ms. Carrington if she wanted her ID. Not many people would have known that Paul Sinclair was in possession of Rae Carrington’s identification at the time of his arrest and that it had been held in police custody for some time (although an officer had assisted Ms. Carrington to retrieve it before this confrontation). Although the defence maintained that the Crown had not established it was Mr. Sinclair himself who placed the call rather than somebody else using his cellphone, the records tell a different story. Many of the calls prior to and after the call at 7:05 were clearly made by Duncan Sinclair.
(d) Flight: The murderer left the scene in the underground Path under Commerce Court at 7:09 p.m. At 7:32 p.m., Duncan Sinclair purchased a GO ticket from nearby Union Station to Brampton. The GO bus was to depart at 7:45. At 7:52, Duncan Sinclair sent a text to his supervisor at work stating that he would not be at work the next day due to a “family matter.” Thereafter, his phone went silent. He placed no calls. He sent no texts. Any incoming calls went to voicemail. The phone was never found. From various receipts and tickets found in Duncan Sinclair’s possession at the time of his arrest, it is apparent he travelled a circuitous route from Toronto, to Brampton, to Georgetown, to Kitchener, to Barrie, and ended up in Midland on April 12. He had purchased different clothing in Barrie, which he was wearing when he entered a homeless residence in Midland seeking shelter. He used a false name and said he had been hitchhiking and had been robbed of all his identification. He told the same story to a staff member at the YMCA, where he asked to use a computer, ostensibly to search for employment. That staff member called the police when she discovered that he had been conducting multiple searches about the murder of Rae Carrington in Toronto, as well as how to get to Sudbury and Winnipeg. Police arrested him outside the YMCA.
(e) Clothing and DNA: A grey baseball cap similar to the one worn by the killer was in Mr. Sinclair’s duffle bag. Although he was wearing sweatpants, he was also wearing jeans under the sweatpants, very similar to the jeans worn by the killer. As I stated above, Rae Carrington’s blood was on those jeans.
[49] In short, the Crown’s case on identity was nothing short of overwhelming, without any mention of the knife used in the attack. I cannot remember seeing a stronger Crown case, particularly not one where identification was a contested issue. Accordingly, although Duncan Sinclair’s connection to the knife was not irrelevant, neither was it even remotely essential to the Crown’s case.
An Alternative Remedy Was Sufficient
[50] Clearly, there was evidence before the jury which, in an ideal world, should have been excluded. The question, however, is whether a fair trial for Duncan Sinclair required me to declare a mistrial or if some lesser remedy would suffice. In my view, a proper and forceful instruction to the jury was more than sufficient in all of the circumstances. I had already given a midtrial instruction to the jury about Det. Nasser’s opinion evidence on the video from 90 Tyndall. I did this without notes and was able to watch the reaction of the jurors throughout. They did not appear confused or surprised. I saw many nodding heads as I spoke to them about this.
[51] The evidence in question related to a single issue: whether Duncan Sinclair lived at, or had access to, 90 Tyndall at a time close to the murder. This is not the kind of evidence that would completely alter the jury’s opinion of Mr. Sinclair’s character, as often occurs in cases where an accused’s prior criminal history comes out before the jury. In my view, this jury was well able to disregard that evidence and come to a decision without taking it into account. Indeed, this was an intelligent, very attentive jury throughout and I believed they would follow my legal instructions. Many of the jurors were highly educated and held responsible, managerial type positions. Their occupations included: online editor; operations manager for a high luxury retail company; human resources administrator at a university; biotechnologist; executive assistant to the CFO of a financial services firm; research analyst; accountant; registered nurse; customer service representative; university professor of philosophy; teacher; and research monitor responsible for patient safety in pharmacological research at a hospital. I have complete faith in this group of people to do the right thing and follow the legal instructions given to them. I have no doubt at all as to their ability to ignore evidence that is not properly before them and which they have been instructed to disregard.
[52] During the trial, I had explained the general concept of hearsay evidence to the jury and told them that sometimes evidence that was not firsthand might be admissible for some purposes, but not for its truth. I devoted a substantial section of my final charge to the topic of hearsay evidence. In those instructions, I dealt with the evidence of Det. Nasser as follows:
Another example of hearsay evidence that you must be careful not to accept for its truth was the testimony of Det. Aman Nasser. Det. Nasser was not present at the search of 90 Tyndall. He had no firsthand knowledge of who lived there or who was present at the time of the search. Likewise, he could only relate what other people had told him with respect to the van in the underground parking. All of this evidence is hearsay and not admissible for the truth of who lived there.
[53] In my final charge to the jury, in the section dealing with the knife, I told the jurors that how much they could draw from the evidence of the knife in terms of identifying the perpetrator depended “on the extent to which [they were] able to conclude that Duncan Sinclair either lived in that apartment or had access to that apartment at the relevant times. I then stated, “You have heard no direct or admissible evidence that Duncan Sinclair actually lived there at that time.” Later in this same section, I reminded the jury that the only evidence placed before them with respect to items found during that search was the photograph of the three knives in the drawer. I then instructed the jury:
It is open and reasonable for you to conclude that if the police had found relevant evidence to establish Duncan Sinclair lived in that apartment, it would have been placed before you. For example, there was no evidence of a lease, no mail addressed to him at that apartment, and no identification or belongings of Duncan Sinclair found there. Given that lack of such obviously relevant evidence at trial, it is open to you to draw an adverse inference that such evidence does not exist.
[54] I had instructed the jurors earlier in my charge as to the relevant factors to take into account in determining whether to rely upon any of the four witnesses who had identified Duncan Sinclair as the man seen on the video killing Rae Carrington. Those factors included: how familiar the witnesses were with Mr. Sinclair; how recently they had seen him; whether there was anything unique about Mr. Sinclair’s appearance to support the identification; the quality of the images they saw; whether they had a motive to lie; whether they identified Mr. Sinclair because they were predisposed to believe it would be him on the video; and anything else that they felt affected the reliability of their identification, whether positively or negatively. By way of contrast, in the section of my charge dealing with the evidence in relation to the knife, I instructed the jury as follows:
I remind you of my midtrial instruction to you during the evidence of the Officer in Charge, Det. Aman Nasser and also my instructions to you about his evidence elsewhere in this charge. You must not take into account anything he said about seeing a person he believed to be Duncan or James Sinclair on the surveillance tapes for that building. He is not qualified to offer that opinion and the videotape itself has not been put before you. Likewise, whatever Det. Nasser told you about who lived there was based on hearsay information obtained from others. It is not admissible evidence before you and you must put it out of your minds entirely. It is not admissible for its truth and not admissible to prove that either Duncan Sinclair or James Sinclair lived there at the relevant time.
[55] In my opinion, these instructions could leave the jury in no doubt about their duty to ignore the inadmissible testimony of Det. Nasser about evidence connecting Duncan Sinclair to the knife set found at 90 Tyndall. I have complete faith in this jury’s ability to do so, and in their understanding of their obligation to follow my legal instructions.
[56] Accordingly, I saw no reason to declare a mistrial in all of the circumstances. I consider Mr. Sinclair to have had a fair trial. He was convicted only because the evidence of his guilt was overwhelming. It is hard to see any jury coming to a different conclusion, with or without any mention of the knife set at 90 Tyndall.
Molloy J.
Released: November 22, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DUNCAN SINCLAIR
Defendant
REASONS FOR decision
Molloy J.
Released: November 22, 2021
[^1]: R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 59, quoting R v. Toutissani, 2007 ONCA 773, at para. 9; R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354, at para. 52.
[^2]: Arabia, at para 51.
[^3]: R. v. Chiasson, 2009 ONCA 789, at para.14, citing Toutissani.
[^4]: 2021 ONCA 568, 157 O.R. (3d) 196, at para. 142.
[^5]: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 29-31.
[^6]: (1975), 1975 1434 (NB CA), 11 N.B.R. (2d) 376, at para. 9 (C.A.).
[^7]: See Khan, at para. 36; Jeanvenne, at para. 64; and Ambrose, at para. 6.
[^8]: 1989 28 (SCC), [1989] 2 S.C.R. 393.
[^9]: R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, at para. 23.