



COURT OF APPEAL FOR ONTARIO

CITATION: Chaudhary v. Ontario (Attorney
    General), 2013 ONCA 615

DATE: 20131011

DOCKET: C56130

Laskin, Goudge and Feldman JJ.A.

BETWEEN

Amina Chaudhary

Appellant

and

Attorney General of Ontario

Respondent

Alan Young, for the appellant

Robert E. Charney and Frank Au, for the respondent

Heard: September 18, 2013

On appeal from the judgment of Justice M. Dambrot of the Superior
    Court of Justice, dated September 18, 2012.

By
    the Court:

[1]

The appellant was convicted of first degree murder in 1984. Her appeal
    to this court was dismissed on August 5, 1986 and leave to appeal to the
    Supreme Court of Canada was denied on December 7, 1987.

[2]

The appellant retained The Innocence Project in 1997. The Project has
    brought an application to the Minister under s. 696.1 of the
Criminal Code
for a ministerial review of her conviction on the ground of miscarriage of
    justice.

[3]

On April 19, 2010, the Project commenced an application seeking a broad declaration,
    which was ultimately framed by Dambrot J. as follows at para 1 :

it is a principle of fundamental justice under section 7 of
    the
Canadian Charter of Rights and Freedoms
that upon conviction for
    an indictable offence punishable by life imprisonment all evidence pertaining
    to the case that should have been disclosed under
R v. Stinchcombe,
[1991]
    3 S.C.R. 326, including any evidence and/or information in police investigative
    file [
sic
] that would be subject to disclosure under
Stinchcombe,
be
    preserved for the lifetime of the offender unless:

i.

The offender waives this requirement, or

ii.

A Court Order is obtained, upon notice to the accused, allowing for the
    destruction or other disposition of any or all of the evidence.

[4]

The appellants submissions relating to evidence preservation were
    grounded in specific concerns about lost photographs that could have potential
    relevance for the s.696.1 application. At trial, Dr. Charles Smith, the
    pathologist who conducted the autopsy on the victim, referred in his testimony to
    photographs of bruises on the victims body. Those photographs were not made
    exhibits, however, and now they cannot be found. No other evidence from the
    police file or elsewhere is referred to in the application record before the
    court.

[5]

In his reasons for decision, Dambrot J. explained that a
Charter
remedy under s. 24(1) could only be ordered if a
Charter
right of the
    appellant had been infringed or denied. He then went on to determine whether
    the inability of the Crown to locate the autopsy photographs infringed the
    appellants s. 7
Charter
rights. He concluded at para. 81 of his
    reasons:

In my view, whatever obligation to preserve evidence survives
    the exhaustion of appellate remedies, there is no violation of the
Charter
where the loss or destruction is satisfactorily explained, and no prejudice is
    occasioned to the appellant.

[6]

Dambrot J. noted that as no one on behalf of the appellant had asked to
    see photographs at all since the trial, it was not surprising that they were
    now unaccounted for. He observed that by todays standards, such a loss or
    destruction of evidence would be unacceptable, but that todays standards could
    not be imposed on past events and behaviour. He also concluded that the
    appellant had not demonstrated any prejudice by the loss of the photos, because
    on the evidence produced on the application, the photos would not be able to
    assist the appellant to prove her innocence. As a result, having found no
Charter
breach based on the loss or destruction of the autopsy photos, Dambrot J.
    concluded that no remedy under s. 24(1) could be ordered.

[7]

In his oral argument in this court, counsel for the appellant accepted
    the finding of Dambrot J. that his client had not suffered a
Charter
breach based on the loss of the photographs. His position is that because he
    seeks a declaration of a general duty on the Crown to preserve evidence post-trial
    and appeal, rather than any case-specific remedy, he does not need to rely on and
    therefore does not need to prove a specific
Charter
breach.

[8]

He acknowledged, however, that as a basis for seeking a declaration, he
    did need to demonstrate that there is an evidence file in this case that must
    be preserved for use in the s. 696.1 application and that there is a risk the
    file will be lost in the future. To that end, counsel referred to hair, soil
    and fabric evidence that was relied on at trial as part of the evidence against
    the appellant, which could now be tested with modern methods to try to
    establish the appellants innocence.

[9]

Without commenting on the procedural submissions set out above, a
    preliminary problem with the appellants position is that neither the notice of
    application nor the reasons of Dambrot J. refer in any way to any evidence
    other than the autopsy photographs. To the extent that there is any
    correspondence in the record that deals with the balance of the evidence from
    the investigation and the trial, the response from the Crown is that they have
    two boxes. There is no suggestion that that evidence will not be preserved for
    this ongoing matter.

[10]

Because
    the appellant does not challenge the findings made by Dambrot J. but now seeks
    the declaratory remedy on a basis that is not set out in the record and was not
    the subject of adjudication by Dambrot J., there is no basis for the court to
    entertain an appeal.

[11]

Before
    concluding his reasons, Dambrot J. made some thoughtful,
obiter
observations about the issue of postappeal preservation of evidence, which we
    endorse as well. He stated at paras 87-88:

Unlike preservation of
Stinchcombe
material
    before trial, preservation after appellate rights are exhausted does not give
    rise to a legal principle that can be identified with sufficient precision to
    yield a simple a [
sic
] standard. It would be preferable for there to
    be a carefully developed legislated scheme, which could then be reviewed by the
    Courts for
Charter
compliance

But if there is an obligation on the Crown arising from the
Charter
to preserve
Stinchcombe
material after appellate rights have been
    exhausted, and if the task of developing the response to this issue must fall
    to the Courts, the response should be developed in a nuanced and incremental
    manner. Unlike preservation of relevant material before trial, it requires
    consideration of the differing types of material covered by
Stinchcombe
,
    what subsequent use there may be for such material, questions of dangerousness
    and perishability, and questions of feasibility and cost. In any event, the
    narrow circumstances of this case do not present the occasion to examine these
    difficult questions.

[12]

The
    appeal is dismissed. Costs were not requested and no costs are ordered.

Released: JIL October 11, 2013

J.I. Laskin J.A.

S.T. Goudge J.A.

K.Feldman J.A.


