



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.


