WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s.
    18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. E.D., 2020 ONCA 633

DATE: 20201007

DOCKET: C66858

Lauwers, Huscroft and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.D.

Appellant

Ravin Pillay, for the appellant

Lisa Fineberg, for the respondent

Heard by videoconference: September 22, 2020

On appeal from the conviction entered by Justice David
    Harris of the Ontario Court of Justice on January 17, 2019, with reasons
    reported at 2019 ONCJ 34, 153 W.C.B. (2d) 563, and the sentence imposed on May
    1, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of assault, two counts of mischief to
    property, and sexual assault against his former domestic partner, J.P. The
    prosecution proceeded against J.P.s wishes, and despite an affidavit in which
    J.P. recanted her allegations against the appellant.

[2]

The appellant raises several issues on appeal. He says that the trial
    judge:

1.

erred in failing to consider whether the
actus reus
of sexual
    assault had been proven;

2.

erred in failing to apply the principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742

to J.P.s
    exculpatory evidence;

3.

misapprehended the evidence on J.P.s motive to fabricate; and

4.

erred in allowing the Crown to cross-examine J.P. at large.

[3]

We conclude that the judge made no such errors. We note that two
    additional grounds set out in the factum were not pursued at the hearing. The
    appellant argued that the trial judge erred in failing to address
    inconsistencies in J.P.s evidence and erred in admitting J.P.s phone
    statement. We see no merit in these additional grounds.

[4]

Accordingly, the appeal is dismissed for the reasons that follow.

Background

[5]

J.P. called 911 on July 10, 2017 to complain that the appellant refused
    to stop contacting her after their relationship had ended. J.P. said that the
    appellant was threatening to report information to social services that could
    cause her to lose her subsidized housing.

[6]

J.P. made several allegations against the defendant in that call. She
    claimed that E.D. had a firearm and had threatened to shoot her. However, she
    informed the police subsequently that she did not want to take the matter
    further and would not provide a statement.

[7]

On July 31, 2017 Detective Whittaker called J.P. and taped their phone
    conversation. J.P. said that she felt unsafe with the appellant and that she
    wanted him to leave her alone. She described several acts of violence that the
    appellant committed against her, the most serious of which amounted to sexual
    assault. However, J.P. said she did not believe she was sexually assaulted. She
    did not mention a threatened shooting.

[8]

Following this interview, J.P. recanted most of her allegations. She
    swore an affidavit stating that she felt pressured to give her statement to the
    police. With respect to the sexual assault, she swore that she consented at the
    relevant time. J.P. asked for criminal charges against E.D. to be withdrawn. Nevertheless,
    the Crown proceeded with the charges.

[9]

J.P. testified at trial as the Crowns witness. On cross-examination by
    the appellants trial counsel, she adopted the contents of her affidavit.

The trial judge did not fail to consider whether the
actus
    reus
of sexual assault had been proven

[10]

This
    issue was the focus of the appellants submissions. The appellant argues that
    the trial judge erred in basing his decision on s. 273.1 of the
Criminal
    Code
, because J.P. was not unconscious or incapable of consenting during
    the assault. As a result, the trial judge failed to consider: 1) whether J.P. subjectively
    consented to the sexual activity in question and, in particular, did not
    believe that she had been sexually assaulted; 2) whether J.P. had given her
    full and informed consent to the activity; and 3) that the sexual activity
    stopped when J.P. withdrew her consent.

[11]

This
    argument must be rejected.

[12]

The
    trial judge considered J.P.s statement to the police, her subsequent
    affidavit, her evidence at trial, and the differences between these things. As
    the Crown points out, J.P.s statement to Detective Whittaker that she did not
    want to engage in intercourse at the time it was occurring was undisturbed at
    trial. Specifically, in answer to the question: So did you want to have sex
    with him at that point?, she answered: At that point, no. But in other past
    incidents we would make up like that. The trial judge was entitled to find,
    based on the evidence before him, that J.P. did not consent to the sexual
    activity while it was taking place, and that was sufficient to establish the
actus
    reus
of the offence.

[13]

The
    trial judge did not frame this as a case of unconsciousness and did not fail to
    consider whether J.P. consented. His discussion of s. 273.1 came in the context
    of J.P.s evidence that she was feigning unconsciousness and that the appellant
    knew this. The appellant did not testify so there was no evidence before the
    court as to his belief  no basis for a defence that he lacked
mens rea
on the basis of an honest but mistaken belief. This was the context in which
    the trial judge found, based on J.P.s statement to the police and her evidence
    in court, that the appellant did not ask her if she was conscious and whether
    she wanted to engage in intercourse.

The trial judge did not fail to apply
W.(D.)

to
    J.P.s exculpatory evidence

[14]

Although
    the trial judge specifically referred to
W.(D.)

only at the
    outset of his decision, in the context of a video-recorded statement by E.D.,
    we are satisfied that he

properly instructed himself on the concept of
    reasonable doubt and applied that standard to all of the charges. This resulted
    in acquittals on one charge of assault, as well as charges of threatening death
    and criminal harassment. The trial judge was not required to set out the
W.(D.)
approach in respect of each conclusion.

[15]

The
    trial judge found that despite J.P.s attempt to absolve the appellant of
    responsibility, her evidence at trial corroborated the contents of her
    statement to Detective Whittaker to a significant degree. This finding was open
    to the trial judge and there is no basis to interfere with it.

The trial judge did not misapprehend the evidence as to motive
    to fabricate

[16]

The
    trial judge did not misapprehend the evidence. He found it was clear that J.P.
    wanted the police to tell the appellant to stop contacting her and that she
    wanted no further involvement with the police once this goal was accomplished.
    She had to be coaxed by the police into making a statement and did so without
    any coercion or pressure.

[17]

The
    trial judge did not improperly fail to give effect to the evidence concerning
    motive. He considered the evidence at length, including J.P.s allegation in
    the 911 call that the appellant had threatened to shoot her, something she
    testified she did not remember saying. The trial judge considered this a significant
    inconsistency but ultimately rejected the evidence that J.P. was motivated to
    fabricate the allegations she made against the appellant in her conversation
    with Detective Whittaker. The trial judge found that J.P. wanted to stop the
    appellant from contacting her and had achieved that goal by the time she gave
    her statement to Detective Whittaker. He also found that she did not want
    further involvement with the police and did not want the appellant arrested. The
    appellant has not identified any misapprehension of the evidence that would
    entitle this court to interfere with the trial judges findings. His
    submissions invite us to revisit the trial judges credibility findings, but
    that is not our role on appeal. This ground of appeal must be rejected.

The trial judge did not err in allowing the Crown to
    cross-examine J.P. at large

[18]

The
    appellant submits that the Crowns cross-examination of J.P. went beyond the
    scope permitted by s. 9(2) of the
Canada Evidence Act
,
R.S.C., 1985, c. C-5 and that the Crown
    wrongly questioned her at large concerning the alleged sexual assault, yielding
    evidence that the trial judge relied on in convicting the appellant. We
    disagree.

[19]

Cross-examination
    is subject to the discretionary control of the trial judge and his decisions
    concerning the scope of cross-examination are entitled to deference. Although
    the scope of cross-examination under s. 9(2) is confined by the language of
    that section, which specifically refers to the statement, J.P.s statement to
    Detective Whittaker was linked to her affidavit and it was not unreasonable to
    allow some latitude in cross-examination. It is noteworthy, but of course not
    determinative of the issue, that the appellants trial counsel (not Mr. Pillay)
    did not object to either the Crowns s. 9(2) application or the Crowns
    cross-examination. Trial counsel did not think it improper or prejudicial and
    neither do we.

[20]

The
    appeal is dismissed.

P. Lauwers J.A.

Grant Huscroft J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Frater, 2020 ONCA 624

DATE: 20201006

DOCKET: C65579

Brown, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Anthony Frater

Appellant

Lynda E. Morgan, for the appellant

Ken R. Lockhart, for the respondent

Heard: September 18, 2020 by
    video conference

On appeal
    from the convictions entered on April 7, 2017, and the sentence imposed on June
    29, 2017, by Justice Maria Speyer of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Paul Anthony Frater was convicted in the Ontario
    Court of Justice of multiple charges arising out of the following events
    occurring on September 1, 2016; September 2, 2016; and October 20, 2016.

[2]

On September 1, 2016, the complainant received
    many text messages. Mr. Frater, the complainants former boyfriend, conceded at
    trial that he sent these texts. In the early hours of September 2, 2016, a man
    broke open the door to the complainants home while holding a knife. The tires
    of a vehicle in the complainants driveway were also slashed. Some hours later,
    the text messages, conceded to be from Mr. Frater, resumed.

[3]

On October 20, 2016, the complainant received
    threatening, harassing messages from an anonymous sender.

[4]

During the trial, the parties focused on whether
    the Crowns evidence was credible and reliable enough to prove that Mr. Frater
    was the man who broke open the door and slashed the tires on September 2, 2016,
    and authored the messages received on October 20, 2016. The trial judge had no
    doubt that Mr. Frater was the person responsible on both occasions.

[5]

In connection with the September 1, 2016 and
    September 2, 2016 incidents, she convicted Mr. Frater of breaking and entering
    a dwelling house with intent, contrary to s. 348(1)(a) of the
Criminal Code
(count 9); carrying a weapon (a knife) for a purpose dangerous to the public
    peace, contrary to s. 88(1) of the
Criminal Code
(count 12); mischief
    by destroying the tires of the vehicle of Mr. Miskovic, who was visiting the
    complainant at the time, contrary to s. 430(4) of the
Criminal Code
(count 11); criminally harassing the complainant contrary to s. 264(2)(b) of
    the
Criminal Code

(count 7); and breaching a probation order to
    keep the peace, contrary to s. 733.1(1) of the
Criminal Code
(count
    8).

[6]

With respect to the October 20, 2016 incident,
    she convicted Mr. Frater of two counts of threatening to cause bodily harm to
    the complainant, contrary to s. 264.1(1)(a) (counts 2 and 3); threatening to
    cause bodily harm to the complainants mother, contrary to s. 264.1(1)(a)
    (count 4); and breaching a probation order not to communicate with the
    complainant, contrary to s. 733.1(1) of the
Criminal Code

(count
    1).

[7]

Mr. Frater was sentenced to 28 months in jail,
    less 10 months credit for presentence custody, and he was placed on probation
    for two years. Along with other incidental orders, victim surcharges totalling
    $800 were also imposed.

[8]

Mr. Frater raises several grounds of appeal from
    these convictions and seeks leave to appeal the victim surcharges imposed as
    part of his sentence.

[9]

The only ground of appeal we allow relating to
    Mr. Fraters convictions addresses the trial judges
Kienapple

error
    in convicting Mr. Frater on both count 2 and count 3. By convicting Mr. Frater
    of both offences on the same evidence, the trial judge imposed double jeopardy:
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[10]

Specifically, Mr. Frater had been charged
    separately with threatening the complainant with bodily harm (count 2) and threatening
    her with death (count 3). The Crown relied on the same evidence for both counts
    but proceeded with both because there was an issue as to whether Mr. Frater,
    given the slang he used, had only threatened bodily harm or had also threatened
    death. The trial judge was satisfied that bodily harm was being threatened but was
    not satisfied that death was threatened. However, instead of relying on count 2
    alone to record the threatening to cause bodily harm conviction, she found Mr.
    Frater guilty of count 2 and registered an additional conviction under count 3
    of the included offence of threatening to cause bodily harm. Appropriately, the
    Crown has conceded that the trial judge erred in doing so. This ground of
    appeal is allowed.

[11]

All the other grounds of appeal against the
    convictions are dismissed. They amount to attempts to relitigate the issues at
    trial or to raise, on appeal, matters that were not live issues at trial.

[12]

In the first such ground of appeal, Mr. Frater
    argues that the trial judge erred by using a text exchange that occurred between
    the complainant and Mr. Frater in the hours before and after the complainants
    door was broken in to convict Mr. Frater of the September 2016 criminal
    harassment charge and to prove that he was the intruder. This ground of appeal
    is linked to a caution the trial judge gave herself about relying on
    uncorroborated or unconfirmed evidence from the complainant. The trial judge
    said that she would exercise such caution because the complainant had at times
    been evasive and gave contradicted and inconsistent evidence. Mr. Frater argues
    that since the uncorroborated and unconfirmed testimony of the complainant is
    the only evidence that the text exchange admitted into evidence is a genuine
    and complete record of the actual text exchange that took place, the trial
    judge should not have treated the text exchange as a dependable record.

[13]

This ground of appeal must be rejected. We do
    not accept that the trial judge was, in effect, declaring the complainant to be
    a
Vetrovec

witness:
R. v. Vetrovec
, [1982] 1 S.C.R.
    811. Nor need we consider whether this is a useful concept to apply in a trial
    by judge alone. Even where a true
Vetrovec

witness testifies in
    a jury trial, the law does not require the rejection of her unconfirmed or
    uncorroborated evidence. A jury is entitled to act on such evidence if it
    chooses to do so after considering the need for caution:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 56. The same must hold true where a
    trial judge cautions themselves respecting a witness. The trial judge was
    entitled, in spite of the caution she gave herself, to accept that the text
    exchange was a reliable record of the communications that occurred, particularly
    given that the complainant was not challenged on this point in
    cross-examination. Moreover, the trial judge was in a position to evaluate the
    context, timing and content of the text messages, all of which are factors
    capable of supporting the complainants claim that the messages had not been
    altered. At base, this is a challenge to a credibility finding made by the
    trial judge, yet no palpable or overriding error has been demonstrated and no
    error of law or principle has been shown. This ground of conviction appeal is
    dismissed.

[14]

Mr. Fraters second ground of conviction appeal contends
    that the trial judge erred in admitting the text messages of October 20, 2016, given
    that the Crown failed to discharge its burden under s. 31.2 of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5, to satisfy the best evidence rule
    applicable to electronic documents. We do not accept this. Those text messages
    were admitted into evidence, on consent, as part of Exhibit 2 in the trial,
    without qualification. Because of this the Crown was not required to lead
    evidence to discharge its s. 31.2 burden, and the trial judge was entitled to
    treat the text messages as admissible evidence before her.

[15]

Mr. Frater also argues that the trial judges
    finding that Mr. Frater authored the
October 20,
    2016
text messages, which were sent using an anonymous internet address,
    is unreasonable. We disagree. The trial judges conclusion was not only
    reasonable, it was compelling. The messages from the sender were about a police
    investigation against the sender, caused by the complainant. The sender
    suggested the charges should be dropped. The style of the October 20, 2016 messages
    resembled the September 1 and September 2, 2016 exchange that Mr. Frater
    admitted to participating in. In both sets of communications, the party that the
    complainant is communicating with is referred to as Pablo, on September 2,
    2016 by Mr. Frater himself, and on October 20, 2016 by the complainant. When
    the complainant referred to the party she was communicating with as Pablo he took
    no steps to correct her. The October messages also disclosed personal facts
    that the complainant testified were known to Mr. Frater, and the trial judge was
    entitled to accept this testimony. This evidence, taken together, provided a
    sound foundation for the finding that Mr. Frater authored the October 20, 2016
    text messages.

[16]

Mr. Frater argues that the trial judges
    findings that he was the September 2, 2016 intruder; that he stepped into the
    apartment after breaking open the door; that he was armed with a knife at the
    time; and that he slashed the tires of the vehicle, were all unreasonable. We
    do not accept these submissions.

[17]

The finding that Mr. Frater was the intruder was
    entirely reasonable. Although the two eye-witnesses to the break-in, Mr.
    Miskovic and Mr. Bagan, did not provide elaborate descriptions of the intruder or
    identify Mr. Frater, nothing they said could rule him out, and the text
    exchange that followed between Mr. Frater and the complainant was decidedly
    incriminating as to his involvement. Its timing in the hours after the intruder
    fled, his disclosure in those messages of motive and animus to have been at the
    complainants apartment, his claim that the men inside were pimps, and his
    statement that he had seen what he needed to see, amply support the trial
    judges finding.

[18]

We need not resolve whether the trial judges
    finding that Mr. Frater took a step inside the apartment was unreasonable,
    although we are inclined to the view that it was not. This finding was supported
    by the direct evidence of Mr. Miskovic to that effect. We need not resolve this
    issue because even if such an error had occurred, it would not have changed the
    outcome. This is because the trial judge went on to find that even if Mr.
    Frater had not stepped inside, a part of his body would have entered as a
    natural consequence of breaking in the door, thereby satisfying the
    constructive entry provided for in s. 350(a) of the
Criminal Code
. There
    was an evidentiary foundation for this conclusion. The evidence described an
    extremely forceful break. Mr. Miskovic said the intruder busted the door open
    with his shoulder or by kicking it. Mr. Bagan said the door was slammed
    inside, like [he] killed the door, slammed in. The trial judge inferred in
    these circumstances that part of Mr. Fraters body must have broken the plane
    of the door. This was the trial judges determination to make.

[19]

Inconsistencies between witnesses in the
    description of the knife or the hand that the intruder used to hold the knife do
    not make the trial judges finding that the intruder had a knife unreasonable.
    Both witnesses agreed that he had a knife.

[20]

Nor was the trial judges finding that Mr.
    Frater slashed the tires unreasonable. The testimony of Crown witnesses that
    the tires were slashed went unchallenged, as the trial judge noted. She also had
    before her a record showing that calls were made to a number identified in the
    call log as Zabi (Tow Truck). Once it was found that Mr. Frater was the
    intruder, the conclusion that it was Mr. Frater who slashed the tires was
    inevitable. His text messages betrayed his anger about the presence of the
    complainants male guests, and it was the car of one of those guests that was
    vandalized at or around the time Mr. Frater was seen to be holding a knife while
    breaking open the door. The trial judges finding was not unreasonable. The circumstantial
    case against Mr. Frater on this charge was strong.

[21]

The final ground of appeal relating to the
    convictions is Mr. Fraters submission that the trial judge erred in applying
    the burden of proof. By rejecting Mr. Fraters unreasonable verdict arguments,
    we have already signalled that we reject his claim that the trial judge
    committed an error contrary to
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, by convicting Mr. Frater on inadequate circumstantial evidence. The
    trial judge was entitled to find Mr. Frater guilty beyond a reasonable doubt on
    the evidence before her.

[22]

Nor are we satisfied that the trial judge
    breached the rule in
R. v. W.(D.)
, [1991] 1 S.C.R. 742,

by
    failing to consider whether Mr. Fraters denial, in the September text exchange,
    that he was the one who broke down the complainants door raised a reasonable
    doubt. We accept that the rule in
W.(D.)
applies to evidence
    inconsistent with guilt that is disclosed in the Crowns case, such as Mr.
    Fraters text message denial: see
R. v. B.D
.
, 2011 ONCA 51, 273
    O.A.C. 241, at para. 114. However, it is evident that the trial judge did not
    advert expressly to the
W.(D.)
rule because, in her decision, she was
    addressing the issues that had been litigated before her. Mr. Frater did not
    rely on this denial in his defence. Indeed, he took the position that the text
    messages should not be relied upon at all by the trial judge because she could
    not be satisfied that they had not been tampered with. The case litigated
    before the trial judge was about whether the Crowns affirmative evidence was
    sufficient to convict Mr. Frater. The trial judge wrote a decision that
    responded to that case, as she was entitled to do.

[23]

In any event, we agree with the Crown that the
    trial judges finding that [i]t is inconceivable to me that the break in and
    the slashing of the tires was carried out by a stranger or someone other than
    Mr. Frater necessarily entails that she was left in no doubt by Mr. Fraters
    denial, embedded as it was in his inculpatory text message exchange. No
W.(D.)

error occurred.

[24]

Mr. Fraters conviction appeal is therefore
    dismissed, save for his
Kienapple

appeal relating to count 3. That
    ground of appeal is allowed and his conviction under count 3 of threatening to
    cause bodily harm to the complainant contrary to s. 264.1(1)(a) of the
Criminal

Code

is set aside.

[25]

We also grant leave to Mr. Frater to appeal the
    victim surcharge portion of his sentence. The Crown agrees that the victim
    surcharges were imposed contrary to the
Charter
. They are set aside.

[26]

Notably, Mr. Frater, who has completed serving
    his sentence, has not sought a sentence reduction because of the
Kienapple

error, so we leave the balance of his sentence undisturbed.

David Brown J.A.

Gary Trotter J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Graham, 2020 ONCA 692

DATE: 20201030

DOCKET: C66731

Pepall, van Rensburg and Brown
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jahmal Graham

Appellant

Jeffery Couse, for the appellant

Alexander Hrybinsky, for the respondent

Heard: October 23, 2020 by
    video conference

On appeal from the convictions entered
    on October 5, 2018 by Justice Michael Code of the Superior Court of Justice,
    sitting with a jury, and the sentence imposed on November 9, 2018, with reasons
    reported at 2018 ONSC 6817.

REASONS FOR DECISION

[1]

The appellant appealed his convictions for
    various offences after trial by judge and jury. He also sought to appeal his
    sentence of ten years imprisonment (after one year of credit for pre-trial
    custody). After hearing oral argument, we dismissed the appeal with reasons to
    follow. These are our reasons.

(1)

The Conviction Appeal

[2]

At around 10:00 p.m. on January 23, 2016, patrol
    officers in Scarborough stopped a vehicle they observed driving aggressively.
    After observing open alcohol on the floor behind the drivers seat and marijuana
    on the ground nearby, the officers arrested the occupants, including the
    appellant, and searched the vehicle. In the trunk they found a satchel
    containing nearly three oz. of cocaine, $14,880 in cash, a revolver, two
    digital scales, and around 40 bullets.

[3]

The police seized surveillance video from the
    night in question from the Markham Bar and Grill that showed the appellant
    walking in with a satchel over his shoulder at 9:00 p.m., walking around and
    socializing while wearing the satchel on his shoulder, and then leaving the
    premises with the driver of the vehicle 21 minutes later, which was about 40
    minutes before the traffic stop.

[4]

The appellant was charged with
possession of a prohibited firearm with readily accessible
    ammunition, possession of cocaine for the purpose of trafficking, possession of
    property obtained by crime over $5,000, two counts of breach of a weapons
    prohibition, and failure to comply with probation. (The latter three charges
    were tried by the trial judge alone after the jury trial.)

[5]

Following the dismissal of a pre-trial
Charter
motion, the trial itself was brief and focused solely on whether the appellant
    knew what was in the satchel. The appellant testified that the satchel was not
    his and he denied knowing what was inside. He said his brother, Julian Graham,
    had given it to him to hold while Julian shot a rap music video scene at the
    Markham Bar and Grill. The appellant then put the satchel in the trunk of his
    friends car. Later, the friend agreed to drive the appellant to pick up the
    appellants girlfriend at her house. Shortly after leaving the bar, the police
    pulled over the vehicle.

[6]

The appellant was cross-examined on his version
    of the events. The issues in the conviction appeal relate to the following
    question that Crown counsel put to the appellant near the end of his
    cross-examination:

And, you both understood that if [Julian] was
    to come and testify that, that gun, the ammo, the drugs, the money, were all
    his; you both understood that what he said in this courtroom cannot be used as
    a basis to charge him?

[7]

The trial judge immediately interjected, and the
    appellants trial counsel objected. The trial judge instructed the appellant
    not to answer the question and sent the jury out of the courtroom. After
    submissions on the objection, Crown counsel withdrew the question. The trial
    judge indicated that the best course in terms of remedying the problem was to
    leave the subject, get the jury back in, and to not attach any further
    attention to the question, leaving the appellants counsel to make any further
    arguments about remedy later in the trial. The trial continued.

[8]

Julian Graham testified next. His evidence was
    consistent with the appellants: he stated that the satchel and all of its
    contents belonged to him, and he confirmed the appellants account of how he
    came to possess the satchel.

[9]

After the close of evidence, the appellant moved
    for a stay of proceedings. His trial counsel relied on the Supreme Courts
    decision in
R. v. Jabarianha
, 2001 SCC 75, [2001] 3 S.C.R. 430, as
    authority that any probative value of a witnesss knowledge of s. 13 of the
Charter
[1]

will generally be overborne by its prejudicial effect and that Crown
    counsel should rarely be permitted to cross-examine on this issue: at para. 18.
    The appellants trial counsel asserted that the Crown had improperly embarked
    on a line of questioning that might be used by the jury to wrongly assess the credibility
    of the appellant and his brother. He argued that a mistrial was not appropriate
    and that a limiting instruction would only highlight the issue.

[10]

The trial judge dismissed the stay motion. He
    concluded that this very, very brief incident caused little or no prejudice
    because of the immediate reaction of the court and counsel to the question so
    that the appellant could not answer the question, the unlikelihood that the
    jury would have understood the basis for the objection, the fact that the jury
    was removed from the courtroom only briefly, and the question having not been
    obviously improper (relying on
Jabarianha
, at para. 27, where the
    Supreme Court recognized that there is a narrow range of cases where such
    questioning might be permissible).

[11]

Shortly after the jury began their
    deliberations, they asked the following question, among others:

The Crown stated that Julian could not be
    charged for admitting the drugs, gun, and money were his. Does Julian get
    immunity or could his testimony be used against him?

[12]

The appellants trial counsel renewed the stay motion,
    on the basis that the jurys question demonstrated that they had indeed heard
    and understood the impugned question, and that it had tainted their assessment
    of the appellants evidence and that of his brother.

[13]

The trial judge again dismissed the motion and
    he provided the following response to the jurys question, which took the form
    of a limiting instruction:

So again a couple of things in answer to that
    question. First of all, I disallowed that question and remember you were sent
    out. And I - I ruled in your absence that it was a - it was a question that
    should never have been asked. As - as a result of which when you came back into
    court the - the Crown just carried on, there was no further mention of it. So,
    thats the first point, I disallowed that question. I said it was an improper
    question and it should never have been asked and it was never answered. You
    remember, I stopped Mr. Graham from answering it as soon as I saw where the
    Crown was going and as soon as Mr. Dimitrijevic objected. So, once again, this
    - this is an area that you should not be venturing into. I stopped the question
    for reasons of law and I am not about to instruct you on some of the very, very
    complex difficult law in this area. It is not an easy area, its a very, very
    complex area of law. So, once again, there is simply nothing before you because
    the question wasnt answered, I disallowed it, Im not going to try to teach
    you what the law is in this area now because in any event there is no evidence
    before you about it from the - and Julian was never questioned about it, as a
    result of my ruling. So once again, this is an area on which you have got no
    evidence and you mustnt try to answer questions that arent before you and go
    down paths that are unnecessary to - to your verdict in - in this case. But
    what I can say to you, and again this is as a matter of law, I am instructing
    you that this whole issue has absolutely no probative value in relation to the
    credibility and reliability of anyones witnesses, on any witness in this
    trial. It simply has no probative value in relation to the credibility and
    reliability of any witness in the trial. And thats why I disallowed it. And it
    would take me a long time to teach you the law in this area but I made a ruling
    that this is not an area that we should be venturing into so please, once again,
    do not concern yourself with matters that are not before you, that you dont
    have a proper factual or a legal basis to consider. It simply has no probative
    value.

[14]

The trial judge explained, in his brief oral
    reasons for dismissing the second stay motion, that although he erred in his
    initial ruling in assuming that the jury had not taken notice of the impugned
    question, the remedy of a forceful instruction to the jury to disregard the
    whole area, with reasons why they should disregard it, was sufficient to remove
    any resulting threat of prejudice.

[15]

The appellant submits that the trial judge erred
    in dismissing his second motion for a stay of proceedings. He renews his
    argument that the Crowns question irreparably tainted the jurys assessment of
    his credibility and that of his brother. In particular, he asserts that there
    was a risk that the jury would have been left with the impression that they
    were not supposed to hear, based on the Crowns question, that Julian Graham
    was immune and was free to claim ownership of the satchel without consequences.
    He asserts that the prejudice identified at paras. 18 and 22 of
Jabarianha
would
    have arisen: that the jury would have shifted their focus from the appellants
    innocence or guilt to the witnesss understanding of the consequences of
    testifying under the limited protection of the
Charter
and they might
    have given improper emphasis to the application of the limited protection of s.
    13.

[16]

The appellant also asserts that the trial
    judges limiting instruction was inadequate to overcome the alleged prejudice:
    instead of instructing the jury that the question was irrelevant, the trial
    judge should have given them the instruction that was considered appropriate in
    this courts decision in
R. v. Swick
(1997), 150 D.L.R. (4th) 566
    (Ont. C.A.), at para. 18.

[17]

We disagree. We see no reversible error in the
    trial judges refusal of a stay of proceedings, in his conclusion that a strong
    instruction was sufficient to alleviate the alleged prejudice, and in the
    content of the instruction that was given.

[18]

A trial judges refusal to grant a stay of
    proceedings is discretionary and entitled to deference unless the trial judge
    misdirects himself or herself or if the decision is so clearly wrong as to
    amount to an injustice: see
R. v. Carosella
, [1997] 1 S.C.R. 80, at
    para. 48. A stay of proceedings is reserved for the clearest of cases when
    other remedies are insufficient to address the prejudice to the accuseds right
    to a fair trial or the integrity of the justice system arising from the
    impugned state conduct: see
R. v. Babos
, 2014 SCC 16, [2014] 1 S.C.R.
    309, at paras. 30-32. A trial judge is well-positioned to assess the impact of
    impugned conduct on a jury and the effectiveness of a remedial instruction: see
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 36.

[19]

In our view, the trial judge was entitled to
    conclude that a strong limiting instruction would cure any potential prejudice
    to the appellant in this case. The trial judge ultimately agreed with the
    appellants submission that the Crowns questioning of the appellant was
    improper and did not fit within the narrow exception for permissible questions
    about a witnesss knowledge of s. 13 of the
Charter
set out in
Jabarianha.
As the appellant was prevented from answering the question, there was no
    inadmissible evidence before the jury. What they required was what they
    received: an instruction in clear terms that the question ought not to have
    been asked, that the whole issue had no probative value in relation to the
    credibility and reliability of any witness in the trial, and that this was not
    an area to be ventured into.

[20]

The appellant asserts that the trial judges limiting
    instruction was insufficient because it did not contain the three components
    referred to by this court in
Swick
. In that case Rosenberg J.A., after
    concluding that it was prejudicial for the Crown to have cross-examined a
    defence witness and the accused on their knowledge of s. 13 of the
Charter
,
    turned to consider an appropriate instruction on the use of the evidence,
    assuming it was admissible. He stated that the jury should have been directed
    that s. 5 of the
Canada Evidence Act
,
R.S.C., 1985, c. C-5, and s. 13 of the
Charter
do not provide immunity
    from prosecution and if other evidence were available, the witness could indeed
    be prosecuted; that counsels suggestions to the witness and the accused
    concerning the
Charter
and their knowledge of its effect had been
    denied and there was no evidence that this motivated the witnesss testimony;
    and that even if there was some evidence that the witness was aware of the
    constitutional protection provided by s. 13 of the
Charter
, this on
    its own was not proof of a conspiracy between the accused and the witness to
    fabricate evidence.

[21]

The instruction referred to by Rosenberg J.A. in
Swick
was tailored to address the particular circumstances of that
    case, where the trial judge had permitted and referred to the extensive
    cross-examination of a defence witness on his understanding of the protection
    provided by s. 13 of the
Charter.
Here, by contrast, there was no such
    evidence because the question was withdrawn and not answered. It would have
    been inappropriate for the trial judge to provide anything other than the
    strong instruction that he gave to the jury to ignore the issue because it was
    irrelevant. If, as the appellant argues, the jury could have been left with the
    impression that Julian Graham
was

immune and thus was free to
    claim ownership of the satchel without consequences, the trial judges strong
    instruction made it clear that anything the jury might have taken from the
    question having been asked was entirely irrelevant to their deliberations.

[22]

In our view, the trial judges response to the
    jurys question effectively addressed any prejudice that might have arisen when
    the impugned question was originally put to the appellant. The strong limiting instruction
    that was provided by the trial judge was informed by and consistent with the
    approach advocated by the appellants trial counsel, who urged the trial judge to
    emphasize to the jury that they must ignore the fact that the question had been
    asked and that the entire subject was irrelevant to the credibility of either
    the appellant or his brother.

[23]

For these reasons the conviction appeal was
    dismissed.

(2)

The Sentence Appeal

[24]

On the appellants sentence appeal he contends
    that the trial judge erred in failing to find that he had proven a mitigating
    circumstance, namely that he had been the victim of historical sexual abuse,
    and in failing to take into account this mitigating factor.

[25]

The appellants mother testified that the
    appellant had told her that he had been sexually assaulted as a child, and she
    provided details of what the appellant said had happened. The appellant did not
    testify at his sentencing hearing, notwithstanding that Crown counsel had
    objected to the hearsay nature of his mothers testimony. He did however start
    to speak about the sexual assault, when he provided his statement pursuant to s.
    726 of the
Criminal Code
, R.S.C., 1985, c. C-46, saying that he had
    told his mother about the assault in confidence, that he wouldve brought it
    to [his] grave, and that he had been affected emotionally and psychologically
    by the abuse. The trial judge interrupted and told the appellant that he was
    not permitted to use his right to make a statement prior to sentencing to start
    testifying about a potential mitigating circumstance.

[26]

There is no error in principle here. The trial
    judge considered the evidence and found that the appellant had failed to prove
    the mitigating factor of historical sexual abuse on a balance of probabilities.
    Although the trial judge acknowledged that hearsay evidence is admissible in
    sentencing proceedings, he gave the appellants mothers evidence little weight
    because it was based entirely on isolated reports from the appellant, who was
    an unreliable witness with a substantial criminal record. The trial judge
    noted that the appellant was clearly disbelieved by the jury and the trial
    judge would have disbelieved him too had he been the trier of fact. He also
    noted that the appellant was present in court and chose not to testify about
    these matters, even after the Crown disputed and objected to the hearsay
    versions of these events. Although the appellant referred to the abuse in his statement
    pursuant to s. 726 of the
Criminal Code
, the trial judge was entitled
    to give this statement, which was unsworn and not subject to cross-examination,
    little or no weight in determining whether the mitigating circumstance of
    historical sexual abuse had been made out.

[27]

For these reasons, although we granted leave to
    appeal sentence, we dismissed the sentence appeal.

S.E.
    Pepall J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.

[1]
Section
    13 of the
Charter
provides: A
    witness who testifies in any proceedings has the right not to have any
    incriminating evidence so given used to incriminate that witness in any other
    proceedings, except in a prosecution for perjury or for the giving of
    contradictory evidence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ivezic, 2020 ONCA 621

DATE: 20201005

DOCKET: M51639 (C66244)

Brown, Trotter and Paciocco
    JJ.A.

BETWEEN

Her
    Majesty the Queen

Responding
    Party

(Respondent)

and

Mladen
    (Michael) Ivezic

Applicant

(Appellant)

Richard Litkowski
and Jessica Zita
, for the applicant

Karen Papadopoulos and
Frank Au, for the responding party

Heard: September 16, 2020 by video conference

REASONS
    FOR DECISION

I.        OVERVIEW

[1]

On June 3, 2018, the applicant, Mladen (Michael)
    Ivezic, was convicted of first-degree murder. He is appealing his conviction.

[2]

A key issue at trial was whether DNA found in a
    sample taken from under the deceaseds fingernails was that of the applicant.
    The applicant contended that it was not. In the course of extensive arguments on
    pre-trial and trial motions, the applicant asserted that during the analysis
    process the authorities planted his DNA and altered DNA records to show a match
    between the DNA found in the sample taken from under the deceaseds fingernail and
    that of the applicant.

[3]

To support this theory, the applicant brought
    third-party records applications that sought, in part, information about the
    handling of the DNA sample from the Centre for Forensic Sciences (CFS) and
    the National DNA Data Bank (NDDB). Amicus helped the applicant to prepare his
    third-party records applications.

[4]

In the third-party records application directed
    to the NDDB, the applicant sought the production of the original DNA profile
    data for item 11T3843_6-1MAJ received by the NDDB on May 9, 2011 (the Item),
    which was the sample taken from under the deceaseds fingernails. Significant
    amounts of pre-trial time were devoted to hearing the applicants third-party
    records applications. The NDDB was ordered to produce the information about the
    Item in its possession, which it did.

[5]

On his appeal, the applicant maintains that the production
    made by the NDDB was inadequate. He describes the information that has not been
    produced variously as the original DNA profile data or the original DNA
    allele data for the Item. He
steadfastly maintains
    that the DNA analysis data uploaded to the NDDB on May 9, 2011 was not a match
    for his DNA and that the uploaded information was subsequently altered to match
    his DNA.

[6]

In furtherance of that position, the applicant
    moves under
Criminal Code
s. 683(1)(b)(ii) for an Order directing that
    Detective Bui, Detective Beveridge (the primary investigating officers) and
    Kimberly Sharpe (a CFS forensic scientist) attend for cross-examination in
    support of an application to produce relevant evidence not previously disclosed.
    More specifically, the applicant contends that the
original
    DNA profile for the Item that was uploaded on May 9, 2011 was never produced
    during the trial proceedings. He seeks to question the two investigating
    detectives about their involvement in and knowledge of the early stages of the
    investigation, and to question the CFS scientist about her involvement with the
    DNA samples taken from the deceased. If the examinations reveal that the NDDB
    can provide the original DNA data, then the applicant plans to ask the Court to
    order its production and grant leave to introduce the produced information as fresh
    evidence on his appeal.

[7]

Detectives Bui and Beveridge did not testify at
    trial; the applicant did not compel their attendance. Ms. Sharpe did testify
    and was cross-examined by the applicant for six days.

II.       THE GOVERNING PRINCIPLES

[8]

The Crown's disclosure obligation on an appeal
    extends to any information in the possession of the Crown that there is a
    reasonable possibility may assist the accused in the prosecution of his appeal:
R. v. Trotta
(2004), 23 C.R. (6th) 261 (Ont. C.A.), at para. 25. In
Trotta
,
    this court described, at para. 25, the two links an applicant must establish to
    obtain disclosure or production in aid of a proposed fresh evidence motion:

(i)

the applicant must first demonstrate a
    connection between the request for production and the fresh evidence he proposes
    to adduce by showing that there is a reasonable possibility that the material
    sought could assist on the motion to adduce fresh evidence, either by yielding
    material that will be admissible as fresh evidence or assisting the applicant
    in developing or obtaining material that will be admissible as fresh evidence; and

(ii)

the applicant must next demonstrate that there
    is some reasonable possibility that the evidence to which the production
    request is linked may be received as fresh evidence on appeal.

Unless the applicant can establish both
    links, there is no reasonable possibility that the material sought could assist
    in the prosecution of the appeal and, therefore, no reason for this court to
    require the Crown to disclose it:
Trotta
, at para. 25.

[9]

To these principles must be added the
    observations of Sopinka J. in
R. v. Chaplin
, [1995] 1 S.C.R. 727,
    about the circumstance where the Crown denies the existence of material that
    the defence contends is relevant. In such a case, Sopinka J. stated that
the defence must establish a basis which could enable the
    presiding judge to conclude that there is in existence further material which
    is potentially relevant:
at p. 743. To establish a basis, the defence may
    lead or point to evidence or, in some cases, rely on the oral submissions of
    counsel: at p. 744.

III.      ANALYSIS

[10]

Consideration of the application must start with
    an examination of the record to understand what information about the Item the
    NDDB has already produced.

The NDDB production to date

[11]

In 2011, the CFS conducted two tests of the
    Item. A May 6, 2011 report stated that DNA analysis on the sample revealed DNA
    attributable to the deceased and that a major male DNA profile has been
    determined at 9 STR loci on his right hand fingernail clippings (6-1) and is
    suitable for comparison. An August 15, 2011 CFS report stated that the Item
    was tested further.

[12]

The CFS uploaded data for both tests to the
    NDDB. The data about the first test was uploaded on May 9, 2011; data about the
    second test was uploaded on September 19, 2011.

[13]

Appendix A to the NDDB third-party records
    application listed five categories of information for which the applicant
    sought production. They included: any information about the Item uploaded to
    the NDDB on May 9, 2011; the original DNA profile (all alleles) received by
    the NDDB for the Item; and the NDDB data logs detailing the initial file
    creation and all subsequent activity for the Item.

[14]

Nordheimer J. (as he then was) heard the pre-trial
    application on April 18, 2016. A representative from the NDDB, Mr. Jeff Modler,
    attended. He brought with him the documents about the Item in the possession of
    the NDDB. Mr. Modler answered questions posed by the trial judge, Crown counsel,
    the applicant, and amicus.

[15]

The applicant confirmed to the trial judge that he
    was looking for the original information uploaded to the NDDB on May 9, 2011
    in his words, the specific information about what  numbers were sent to the NDDB.

[16]

Mr. Modler told the court that the NDDBs
    standard documentation with respect to any DNA sample it receives consists of:

(i)

the information sent by the testing laboratory,
    such
as the CFS;

(ii)

a disposition report to the submitting
    laboratory itemizing all the sample information received and whether it met the
    acceptance criteria;

(iii)

a record of what genetic information was entered
    at each region of interest that was uploaded with a DNA profile; and

(iv)

an audit trail record that explains all the
    actions taken in relation to a particular sample through various submissions
    received by the NDDB.

According to Mr. Modler, the
    disposition record does not catalogue the allele cells but identifies the
    regions of DNA from which the information is received.

[17]

During the application hearing, the applicant told
    Mr. Modler that he was interested in the actual numbers that are associated
    with each allele thats uploaded. Mr. Modler stated that the NDDB maintains a
    record that outlines the genetic information that pertains to the DNA profile
    and the date it was received by the NDDB. To that response, the applicant
    replied: Perfect.

[18]

Mr. Modler stated that all information
    pertaining to [the Item] is available in the records that are being provided in
    response to the third-party records subpoena. He further advised that the NDDB did
    not have the ability to change a DNA profile.

[19]

Mr. Modler also explained how the audit trail
    showed that on May 9, 2011 the NDDB received from the CFS a DNA profile with
    information at 10 genetic loci and on September 19, 2011 the CFS uploaded information
    for 4 additional regions of DNA. He stated there was no indication in the audit
    trail record that changes had been made to the information originally entered
    on May 9, 2011.

[20]

At the conclusion of the hearing, Nordheimer J. ordered
    the NDDB to produce to the applicant all the documents brought to the
    third-party records hearing, which it did.

[21]

At a June 22, 2016 pre-trial appearance, the applicant
    expressed concern that the information produced by the NDDB was not complete.
    Amicus thereupon made inquiries of Mr. Modler. Following his conversation with
    Mr. Modler, amicus prepared a memo for the applicant explaining how the records
    previously provided in fact were responsive to the applicants request. The
    memo was filed with the court. Amicuss memo stated, in part, that Mr. Modler
    advised that the NDDB has provided records with respect to all the requests set
    out in the application materials and subpoena. The memo explained that the two
    documents the NDDB had provided in response to the applicants request for the
    information uploaded on May 9, 2011 and the original DNA profile data (all
    alleles) received by the NDDB were the SDIS Specimen Details Report (Short)
    and the SDIS Specimen Details Report (Long). In his memo, amicus wrote that Mr.
    Modler had advised that

[t]he NDDB is not capable of generating any
    other reports
.
[Emphasis
    added].

[22]

Following the appointment of Nordheimer J. to
    this court, Goldstein J. assumed responsibility as the trial judge. The applicant
    renewed his request for more information from the NDDB. Goldstein J. did not
    see a basis in the record on which to make a further production order.

Application of the general principles

[23]

According to the applicants materials, his
    present application marks the first step in his effort to adduce as fresh
    evidence information about the Item that he contends the NDDB possesses but has
    not disclosed. The applicant brings this application notwithstanding: (i) the
    explanation given at the third-party records application hearing by Mr. Modler
    about what information regarding the Item the NDDB possesses; (ii) Mr. Modlers
    representation to the court that the information he brought in response to the
    third-party records subpoena constituted all the information in the possession
    of the NDDB about the Item; (iii) Mr. Modlers subsequent explanation to amicus
    about which information related to the specific requests listed in Appendix A
    to the applicants third-party records notice of application; and (iv) his
    confirmation to amicus that
[t]he
    NDDB is not capable of generating any other reports.

[24]

In support of his present application to obtain further
    disclosure and examination in respect of the CFS upload of information about
    the Item to the NDDB on May 9, 2011, the applicant
advances
    three arguments.

[25]

First, the applicant points to an article he has
    found titled A Simplified Guide to DNA Evidence that states the DNA analysis
    process can provide an analyst with a chart called an electropherogram, which
    displays the genetic material present at each locus tested. Relying on this article
    the applicant asserts, in effect, that the NDDB must possess an
    electropherogram for the Item.

[26]

We see no merit in this argument. The
    information provided by Mr. Modler in 2016 to the court and to amicus was clear:
    the NDDB does not have the capability to generate any records other than those
    produced. The applicant has not offered any evidence to the contrary.

[27]

Second, the applicant points to evidence given
    at trial by his forensic expert, Ms. Valerie Blackmore. During his examination-in-chief
    of Ms. Blackmore, the applicant attempted to elicit evidence about a
    conversation she had with Mr. Craig Carroll of the NDDB. Given the hearsay
    nature of the evidence sought, the trial judge excused the jury and permitted
    the applicant to pose some questions to Ms. Blackmore in a
voir dire
.
    Ms. Blackmore testified that she had learned from Mr. Carroll that the NDDB
    maintains an audit trail record for all DNA sample information that it
    receives. The applicant submits that this evidence suggests the existence of
    further, undisclosed information at the NDDB about the Item.

[28]

We do not accept this submission. Mr. Modler
    produced the audit trail record for the Item. Ms. Blackmores testimony does not
    suggest the existence of some other record.

[29]

Finally, the applicant relies on comments made
    by the trial judge at the end of that
voir dire
. Upon the completion
    of the examination of Ms. Blackmore, the trial judge stated that he would put
    this aside for the moment because we have a jury, and Ill hear some
    submissions later. The applicant submits that for reasons never explained on
    the record, the court never returned to resolve this ongoing disclosure issue.
    That unresolved issue, in the applicants view, provides support for his
    present request for further disclosure.

[30]

We disagree. As stated, Ms. Blackmore did not
    give any evidence on the
voir dire
that suggested the NDDB possessed a
    record about the Item that had not been produced. Further, just before
    directing the
voir dire
with Ms. Blackmore, the trial judge informed
    the applicant that if he intended to attempt to revisit the issue of disclosure
    by the NDDB he would have to file an affidavit from the person at the NDDB with
    whom Ms. Blackmore had talked. The
voir dire
was then held, during
    which it became apparent that the information Ms. Blackmore had received from Mr.
    Carroll at the NDDB merely described the type of information already disclosed
    by Mr. Modler.

Conclusion

[31]

Accordingly, on the record before us, the applicant
    has not established a basis on which to conclude there exists at the NDDB further
    material that is potentially relevant to a fresh evidence application on this
    appeal. The applicant has not established the first link required by
Trotta
.

IV.     DISPOSITION

[32]

For these reasons, the application is dismissed.

David
    Brown J.A.

Gary Trotter J.A.

David M. Paciocco J.A.