R. v. Wiseman, 2022 NLSC 164

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Wiseman , 2022 NLSC 164 Date : November 10, 2022 Docket : 202101G5585 HIS Majesty The KING v. Christopher Wiseman Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the persons described in this judgment as the complainants or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Sandra R. Chaytor Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 8 and 9, 2022

Summary:

The Accused sought an order pursuant to section 605(1) of the Criminal Code for the release of an exhibit for the purpose of DNAtesting. He also sought an Order for a postponement of the upcoming trial to allow time for the testing of the exhibit to be conducted. Held: The Court granted the Order for the release of the exhibit and the postponement of the trial. The Accused had met the onus ofestablishing that the request was reasonable in the sense that there was an air of reality to his submission that the testing would advancehis ability to make full answer and defence.

Although the Court found that the Accused could have acted with more diligence in seekingthe Order at an earlier stage, it was satisfied that the Accused’s interest in being able to make full answer and defence outweighed anyinconvenience caused by the postponement of the trial for a couple of months. Appearances: Deidre D. Badcock Appearing on behalf of the Crown Kenneth M. Hollett Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Oland, 2015 NBQB 242; R. v. Wilson, 2020 ONCA 3; R. v. Fries, 2017 MBCA 58; R. v. Barker, 2021NSPC 59; R. v.

Rhab, (ON SC), 1985 CarswellOnt 1619, 21 C.C.C. (3d) 97 (Ont. H.C.J.); R. v. Klassen, (SK KB), [1976] 4 W.W.R. 675, 31 C.C.C. (2d) 235 (Sask. Q.B.); R. v. McQuaid, (SCC), [1998] 1 S.C.R. 244; R.v. Eagles (1989), (NS CA), 88 N.S.R. (2d) 337, 225 A.P.R. 337, (N.S. C.A.); R. v. Shrubsall (2000), (NS SC), 186 N.S.R. (2d) 70, 581 A.P.R. 70 (N.S. S.C.); R. v. L.R., 2019 ONSC 5533; R. v. Hanlon (1987), (NL CA), 64 Nfld. & P.E.I.R. 245, 197 A.P.R. 245 (Nfld. C.A.); R. v. Merdsoy (1994), (NL CA), 121 Nfld. &P.E.I.R. 181, 377 A.P.R. 181 (Nfld. C.A.); R. v.

Gaudon (1996), (NL SC), 137 Nfld. & P.E.I.R. 107, 428 A.P.R. 107(Nfld. S.C.); R. v. Jordan, 2016 SCC 27 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] Christopher Wiseman (“the Accused”) stands charged with having committed a number of offences including sexual offencesagainst two complainants, R.Y. and C.Y. The offences include one count of sexual assault against each of complainants contrary tosection 271 of the Criminal Code, R.S.C. 1985, c. C-46.

The offences are alleged to have occurred on February 17, 2020. [2] The trial is scheduled to commence November 15, 2022. [3] The Accused filed an Application on November 3, 2022 seeking two orders: The first is an Order pursuant to section 605(1) ofthe Criminal Code for the release of an exhibit to the Accused for the purpose of scientific testing. Specifically he seeks to have a usedcondom tested for his DNA.

The condom was located and seized by the police outside a residence where it is alleged the sexual assaultsoccurred. [4] The second Order sought is for a postponement of the trial pursuant to section 606(3) of the Criminal Code. The purpose ofthe postponement is to allow time for the testing of the exhibit to be carried out. issueS [5] The following are the issues to be determined: 1. Should an Order be granted pursuant to section 605(1) of the Criminal Code for the release of an exhibit to the Accused for the

purpose of scientific testing? 2. Should an Order be granted to adjourn the trial to allow the proposed testing to occur? [ 6 ] For the reasons that follow I am prepared to grant the section 605(1) Order and allow the adjournment of the trial to permit the testing to be conducted. analysis Section 605(1) of the Criminal Code – Release of Exhibit for Testing [ 7 ] Section 605(1) states as follows: Release of exhibits for testing 605

(1) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on

summary application on behalf of the accused or the prosecutor, after three days notice to the accused or prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial. [ 8 ] An Order granted under section 605(1) is discretionary.

I may on Application on behalf of the Accused, order the release of any exhibit for the purpose of scientific or other test or examination subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial. [ 9 ] The used condom is not currently an exhibit before the Court in that the trial has not started. Counsel both agree however, that section 605(1) is the appropriate provision of the Criminal Code for the order sought. I agree. In R. v.

Oland , 2015 NBQB 242 , the court held that the term “exhibit” should be read broadly such that s. 605(1) applies to permit the release of items and objects that are not physically before the court where the evidence of the results of testing or examination of the item is or will be before the court (para. 16- 17).

The Application and Supporting Affidavits [ 10 ] The exhibit to be tested is a used condom, which is alleged to have been found at the scene of the alleged offences. [ 11 ] The Accused contends that the condom is a significant piece of evidence and the testing of it for his DNA is important to his ability to make full answer and defence to the charges.

Defence counsel submits that there is almost no real evidence in this case and that it would preserve the fairness of the trial to allow the condom to be released for testing. [ 12 ] The Application is supported by two affidavits of Defence counsel and an affidavit of Valerie Blackmore, a forensic scientist and president of Wyndham Forensic Group Inc. (“Wyndham”). Wyndham is an accredited forensic laboratory based in Guelph, Ontario. Defence counsel has made arrangements with Wyndham to conduct the scientific testing if the Court so orders.

Wyndham was recommended to Defence counsel by another private laboratory that the police utilize but which was unable to assist in this case due to a conflict. [ 13 ] The Application states that R.Y. alleged in his police statement that the Accused had used a condom, had thrown condoms out of R.Y.’s bedroom (where the sexual assault is alleged to have occurred), and that a used condom containing semen was found by the police utside the house in that area. [ 14 ] The Application further states that the police seized the used condom and sought to have it tested but their laboratory refused for unknown reasons to do the testing.

This is confirmed by an email of Cst. Nicole Percey of the Royal Newfoundland Constabulary (“RNC”) to Crown counsel dated November 2, 2022. [ 15 ] Cst. Percey’s email also confirms that the condom would be suitable for testing but that the police will not make a second request to have it tested. If the condom were to be tested at the police laboratory, the turnaround time would be approximately 65 days. [ 16 ] Cst. Percey advises in the email that a DNA sample from the Accused ought to be taken under warrant. D efence counsel has spoken with Sgt. Crocker of the Identification

Section of the RNC who advised that the RNC could take a DNA sample from the Accused and the police would send the sample by Purolator courier along with the condom exhibit to Wyndham if the Court so ordered. [ 17 ] The Accused consents to the RNC taking his DNA sample as proposed. [ 18 ] The affidavit of Valerie Blackmore attests that: • Wyndham is an accredited forensic laboratory. • Since its incorporation in 2009, Wyndham has provided laboratory testing, consulting, and expert testimony services in respect of forensic body fluid identification, DNA analysis, and forensic quality systems. • Wyndham is prepared to coordinate and perform testing on the condom exhibit and a reference DNA sample in this case.

This will encompass:

o receipt of items and initiation of a chain of custody record; o forensic DNA analysis of the items using PowerPlex16 TM and/or PowerPlex Fusion TM amplification kit(s); o

Interpretation and comparison of generated profiles; o A written report summarizing the testing results and conclusions; o protection of the integrity of the evidence; o items and original packaging will be returned to the specified contact person at the address provided; and o Wyndham is prepared to give evidence at trial as required. [ 19 ] Ms. Blackmore further attests that the anticipated turn-around time for analysis is approximately 20 business days. Given this time line, the testing cannot be completed in time for the start of the trial.

Therefore, the Accused asks for a postponement of the trial to allow the testing to happen and to review the results so that he may make full answer and defence to these charges. The Crown’s Position: [ 20 ] The Crown has no issue with Wyndham being the laboratory to conduct the proposed testing or the planned steps to ensure the continuity and preservation of the exhibit. However, Crown counsel raised a concern as to whether the police could obtain a warrant from provincial court to take the Accused’s DNA as it was not certain they had reasonable and probable grounds to link the Accused’s DNA to the used condom.

This is because the allegation of sexual assault against R.Y. was that there was an attempt at anal penetration while utilizing a condom but no allegation that the Accused had ejaculated during the alleged offence. If the police cannot take the sample, the Crown is concerned about the continuity and preservation of the exhibit. It was confirmed with Sgt. Percey, however, that if the Court were to order the RNC to take the testing, it would, of course, comply. [ 21 ] The Crown was further concerned that the Accused could be incriminating himself if his DNA were found on the condom.

The Crown suggested that if the Order were to be granted that the Accused have independent legal advice prior to permitting his DNA to be taken by the police.

I am satisfied that this concern can be addressed in the terms and conditions of the Order and through characterizing the release of the exhibit to the Accused as a step to facilitate the Accused’s retention of an expert to assist in his defence. [ 22 ] In terms of the overall merits of the Application, the Crown opposes the granting of the Order sought insofar as it is of the view that the testing will not lead to a meaningful capacity to advance any defence. It submits that the results of the DNA testing is not of significance and at best would be neutral.

This is because although R.Y. stated that a used condom was thrown out the window, the allegations of sexual assault by R.Y. against the Accused is that he put a condom on himself and attempted to insert his penis into R.Y but there is no allegation by R. Y. that the Accused ejaculated during the alleged offence. Therefore, the Crown submits regardless of the outcome of the DNA analysis, it does not affect its case. [ 23 ] Furthermore, the Crown submits that the Accused was not diligent in bringing the Application.

This is because by way of disclosure, the Defence was aware quite some time ago that the police would not be testing the exhibit. The Crown contends that the Defence had an obligation to pursue any testing with due diligence and has not done so.

Furthermore, the Crown is concerned that if the Order were granted it would inevitably lead to a postponement of the trial and this is not in the best interests of the efficient administration of justice. [ 24 ] Overall, the Crown submits given the minimal evidential value of the testing, the Accused’s delay in seeking this Order, and the consequent impact the granting of the Order would have on the trial schedule, the Order should not be granted.

Case Law Submitted by the Parties [ 25 ] In assessing the merits of the Application, I have considered the authorities submitted by the parties. [ 26 ] The Defence relied upon the following cases:

(1) R. v. Wilson , 2020 ONCA 3 In Wilson , the accused was convicted after a trial by judge and jury of sexual assault and other offences. The accused’s DNA was located on vaginal swabs taken from the complainant. The accused testified that his DNA was on the swabs because he had consensual intercourse with the complainant days before the sexual assault. In his submission to the jury, Defence counsel relied on DNA testing not having been done on fingernail clippings taken from the complainant and her shirt. Defence counsel submitted these items could contain DNA from the true perpetrator of the assault.

The trial judge characterized these submissions as an “unfair shot” at the Crown and issued a corrective instruction to the jury that the testing could have been carried out by the Defence or the Crown. The Court of Appeal dismissed the appeal finding that the trial judge was entitled to conclude that Defence counsel had launched an unfair attack on the integrity of the investigation and was entitled to give a corrective instruction to the jury as was given.

(2) R. v. Fries , 2017 MBCA 58

In Fries, the accused was convicted after trial by judge and jury of second degree murder. The allegation was that he stabbed the victimat a house party. The police seized several pieces of evidence. At trial, the accused put forward the defence of inadequate investigation inpart because the police did not have DNA analysis done on all the exhibits. The grounds of appeal included that the verdict wasunreasonable because the absence of evidence provided the alternative inference that someone else committed the murder. The appealwas dismissed.

The Court of Appeal noted there had been no request to police by Defence counsel to have other exhibits tested for DNAanalysis nor did the accused bring an application pursuant to

section 605 for independent testing.

(3) R. v. Barker, 2021 NSPC 59 In Barker, the accused was charged with a number of offences related to theft and possession of stolen motor vehicles. Vehicles wereseized by the police. The accused applied under s. 490(15) of the Criminal Code to examine five of the vehicles to locate and recordidentification numbers. The Crown intended to call an expert who had examined the vehicles and would testify that hidden vehicleidentification numbers on the vehicles establish they were stolen. The Defence contended that the examination was necessary for the accused to make full answer and defence.

The accused submittedthat the examination would show there was no basis to infer the vehicles were stolen or that the VINs had been altered or it would showthere was reason to doubt the reliability of the Crown’s expert evidence. The Crown argued that the accused had not shown how the proposed examination of the vehicles would provide relevant information sohad not established how it would advance his interests. The court granted the order. It was satisfied that the air of reality test had beenmet.

There was a basis upon which the order could advance the accused in making full answer and defence in testing the reliability of theevidence of the Crown expert.

(4) R. v. Rehab, (ON SC), 1985 CarswellOnt 1619, 21 C.C.C. (3d) 97 (Ont. H.C.J.) In Rhab the accused was charged with theft of clothing from his employer’s department store. He brought an application to have theclothing released to the Defence for the purpose of forensic examination to determine the length of time the clothing had been used. TheCrown opposed the application. In granting the order, the court noted that the

section of the Criminal Code is discretionary. The judgeconcluded that there was an air of reality to the production and examination sought and if the production and examination had anymeaningful capacity to advance any available defence, the examination should be permitted. Although the judge noted skepticism as tothe benefit that would actually be derived from the examination, he could not say that the exercise was necessarily futile. [27] The Crown relied upon the following authorities:

(1) R. v. Klassen, (SK KB), [1976] 4 W.W.R. 675, 31 C.C.C. (2d) 235 (Sask. Q.B.) In Klassen the accused was charged with murder. He brought an application seeking the release of exhibits into the possession of apolice officer who would bring them to London, England for examination by an expert retained by the Defence. The Crown opposed theapplication on various grounds including that the Criminal Code did not authorize sending exhibits out of Canada.

The Crown alsoobjected on the basis that the application was brought the morning the trial was set to commence and the Defence knew at the time of thepreliminary inquiry that it would seek to consult an expert in the field now sought. The Crown was concerned that the charge hadoccurred over two years ago and memories of witnesses would continue to erode during a further delay and some witnesses may not beavailable. The court refused to grant the order noting the evidence of the delay in making the application is relevant as to whether the applicationshould be granted.

No reason was given by the Defence to explain its inactivity on this issue for months. The court stated thatentertaining applications of this nature in such circumstances would simply allow the Defence to force an adjournment willy-nilly. TheCourt also had concerns about an order for an examination outside of Canada and dismissed the application on that basis as well.

(2) R. v. McQuaid, (SCC), [1998] 1 S.C.R. 244 In McQuaid, the Defence sought an order for further disclosure after he was convicted of aggravated assault. The Crown had notdisclosed witness statements. The accused appealed his sentence on the ground that the Crown’s lack of disclosure impaired his right to

make full answer and defence. In dismissing the appeal, the Supreme Court stated that the Defence counsel’s diligence in pursuingdisclosure must be taken into account on assessing fairness of the trial. A lack of due diligence is a significant factor in determiningwhether the non-disclosure affected the fairness of trial. Just as the Crown’s obligations are ongoing, Defence counsel must be dulydiligent in pursuing disclosure.

Defence counsel doing nothing in the face of knowledge will often justify a lack of due diligence andmay in certain circumstances support an inference that a strategic decision was made not to pursue disclosure. Burden of Proof/ Test to be Met [28] The Accused, as the Applicant seeking the release of an exhibit under

section 605, bears the burden of proof. In jurisprudence,this has been described as a burden of persuasion. It is not a high threshold. It requires the Accused to show that the request is reasonablein the sense that it must be founded on something more than mere speculation. There must be an air of reality to it [R. v. Eagles (1989), (NS CA), 88 N.S.R. (2d) 337, 225 A.P.R. 337, (N.S. C.A.) at. p. 136; R. v. Shrubsall (2000), (NSSC), 186 N.S.R. (2d) 70, 581 A.P.R. 70 (N.S. S.C.) at para. 7 and R. v.

L.R., 2019 ONSC 5533 at para. 28-29]. [29] In Shrubsall, at paragraph 7, the court stated as follows: Let me begin by saying that there is a burden of persuasion upon the accused to show an air of reality to the basis of his or herapplication. It is not something to be pulled from the air or imagined or assessed in a vacuum. On the other hand simple skepticism onthe part of the judge as to the benefits to be gained by the testing would not be enough to defeat the motion. [30] In Rhab, Osborne J. wrote at para 8:

Section 533 [now s. 605] is discretionary.

It seems to me that if there is an air of reality to the production and examination sought and ifthe production and examination sought have any meaningful capacity to advance any available defence, the examination sought shouldbe permitted. … My skepticism as to the benefit that will actually be derived from the examination sought is real; nevertheless I cannotsay that the exercise involved is necessarily going to be a futile one. [31] In Eagles, at paragraph 23, Macdonald J. cited with approval the comments of Osborne J. in Rhab and stated that in his viewsuch a request must be reasonable in the sense that it must be founded on something more than mere speculation.

There must be an air ofreality to it. [32] Similar to the defence position in Barker, in the case before me, the Accused believes that the evidence obtained through therelease of the exhibit for testing could assist in cross-examination of witnesses. In particular, the Accused submits the testing would beimportant to the cross-examination of R.Y. who has alleged that the Accused used a condom and threw condoms out the bedroomwindow.

The Accused contends that there is little to no physical evidence to be adduced in this case by the Crown and therefore theCrown’s case against him will largely depend on the credibility of the witnesses. In this respect, the Accused contends the testing of thecondom is important to his defence in the cross-examination of R.Y. [33] I am satisfied that there is a basis upon which the testing proposed could advance the Accused’s interest in making full answerand defence.

The Accused has shown there is an air of reality to his assertion that the Order sought will advance his interest and that theDNA testing will have meaningful capacity to advance the defence. In an air of reality assessment courts generally accept the factualbasis that is put forward and decide the issue as if those facts were true. I accept therefore that there will be little to no physical evidenceadduced at trial.

The cross-examination of witnesses will be important to the truth seeking function of the trial. [34] I further accept Defence counsel’s submission that the testing sought will be particularly relevant to the cross-examination ofR.Y. as to the assertions made in his police statement regarding the Accused’s use and disposal of condoms and that the Accusedbelieves this to be significant to advancing his defence. Presumably, the argument is that if the account of R.Y. is accurate, theAccused’s DNA would be expected to be on the condom exhibit regardless if it contains his semen or not.

Therefore, the issue ofwhether the Accused ejaculated during the alleged sexual assault is not of particular relevance to the purposes for which the defenceseeks to have the exhibit tested. [35] As noted by the court in Rhab, even if I were skeptical as to the actual benefit that may be derived by the testing, I cannotconclude at this stage that the exercise would be futile. [36] I have further considered the planned steps that Defence counsel has arranged for the method of transport and testing of theexhibit including the affidavit evidence of Ms. Blackmore.

In my view, the proposed measures are satisfactory to ensure the preservationand safety of the exhibit. 606(3) of the Criminal Code – Allowing Time [37] I have concluded the Accused has met the air of reality test for the testing of the exhibit and has proposed a satisfactory methodto deal with the exhibit to ensure its preservation. However, that is not the end of the matter. Before granting the Order, I must considerthe effect the Order would have on the trial, which is scheduled to occur next week.

If I were to grant the order for the testing the trialwill have to be postponed as the testing and reporting of results will require at least 20 business days. There would also have to be timefor the information to be received and considered for preparation of any use as evidence at trial. [38] The Accused is not entitled as of right to a postponement of his trial. The jurisdiction to postpone a trial is set out in section606(3) of the Criminal Code: [39] Section 606(3) of the Criminal Code states:

Allowing time 606(3) An accused is not entitled as of right to have his trial postponed but the court may, if it considers that the accused should beallowed further time to plead, move to quash or prepare for his defence or for any other reason, adjourn the trial to a later time in thesession or sittings of the court, or to the next of any subsequent session or sittings of the court, on such terms as the court considersproper. [40] In considering whether to grant an adjournment I must exercise my discretion judicially and upon proper principles [R. v.Hanlon (1987), (NL CA), 64 Nfld. & P.E.I.R. 245, 197 A.P.R. 245 (Nfld.

C.A.), at para. 9; and R. v. Merdsoy (1994), (NL CA), 121 Nfld. & P.E.I.R. 181, 377 A.P.R. 181 (Nfld. C.A.), at paras. 41 and 42]. [41] The Court may take a wide range of factors into account in reaching a decision as to whether a postponement is eitherappropriate or even necessary in order to best serve the ends of justice and fairness [R. v. Gaudon (1996), (NL SC),137 Nfld. & P.E.I.R. 107, 428 A.P.R. 107 (Nfld. S.C.), at para. 7]. [42] The timeliness of the Application to postpone is one factor for me to consider. The Crown urges the Court not to grant theadjournment of the trial to allow the testing to occur.

It contends that the defence did not use due diligence in pursing the section 605(1)Application. [43] In McQuaid at paragraph 37, the Supreme Court commented upon the importance to the efficient functioning of the criminaljustice system of Defence counsel exercising due diligence in actively seeking and pursuing disclosure.

Counsel must not remain passive.In saying this, however, the Supreme Court also reiterated that the goal of the disclosure process is to ensure that the Accused is notdenied a fair trial. [44] In terms of the lateness in pursuing the Order for release of the exhibit for testing, the Application states that, “The policeseized the used condom and other items and at some point sought to have them tested but their laboratory refused for unknown reasonsto accept the condom. This latter point was only disclosed to the Defence on November 2, 2022 when the Crown forwarded an emailfrom Cst.

Percey of the same date.” [45] In oral submission, Defence counsel clarified that he became aware in late July, 2022 that the police had not tested the condomafter Defence counsel made specific inquiries of the Crown on this point. [46] The Crown submits that it should have been apparent to Defence counsel long before July 2022 from the disclosure packagethat the testing of the condom had not been done. Furthermore, this case has been subject to several case management meetings and therehas been ample opportunity to raise this issue.

Instead, it was first mentioned by Defence counsel in a case management meeting onNovember 1, 2022 – just two weeks prior to the scheduled commencement of the trial. The Crown argues that the Accused should notbenefit from his failure to engage with his counsel. The Crown asserts that in accordance with the comments of the Supreme Court inMcQuaid, the Accused had a duty to be diligent in pursuing any further disclosure or avenue of defence and he has not done so. [47] In my view, the Accused could have been more diligent in pursuing this Application.

I accept however, that part of thedifficulty has been the Accused’s personal circumstances. Defence counsel advised the Court of difficulties he has had in contacting theAccused to obtain instructions. Defence counsel describes the Accused as a vulnerable person who has experienced health issues andperiods of homelessness during periods of time leading up to the filing of the Application. [48] Another factor for me to consider is that the need for seeking the postponement must be reasonable and not based onunacceptable conduct on the part of the Accused or counsel.

For example, I must be satisfied that this is not a delay tactic as suggested bythe Crown. I accept that seeking the section 605(1) Order is for the legitimate reason to assist the Accused in making full answer anddefence to the charges. This is the first request for a postponement of the trial by the Accused. In my view, this is not being sought for anuntoward reason or to simply delay the trial. [49] Pursuant to section 606(3) of the Criminal Code, I may allow a postponement if I consider that the Accused should be allowedfurther time to prepare for his defence.

Defence counsel believes that the DNA testing of the exhibit is important to the Accused’s abilityto make a full answer and defence to the charges. It is clear from the evidence of Ms. Blackmore that the testing cannot be done in timefor the commencement of the trial. I am satisfied that the postponement is required to allow further time for the Accused to prepare andpursue this aspect of his defence. [50] Although the Accused has waived, for purposes of any potential application pursuant to R. v.

Jordan, 2016 SCC 27, any delaycaused by adjourning the trial at this time, it is not just the Accused’s interest that I am to consider on an application to postpone the trial. [51] Other factors for me to consider is the potential prejudice to the Crown as well as the Court’s responsibility to ensure that courttime is not wasted and the impact on other persons, including the complainants who are waiting to give their evidence (Hanlon, at para.11). Efficient administration of justice must be weighed.

Unfortunately given the lateness of the filing of the Application, the four daysset aside for this trial next week will likely be lost to other matters if this trial does not proceed. [52] It is now over 2 years since the offences are alleged to have occurred. The complainants have an interest in having thesecharges adjudicated without having to wait an undue period. In this regard, the Court canvassed with counsel for their next availabilityfor the trial within the Court’s

schedule if the postponement were granted. It was determined that alternate trial dates could be securedin February 2023 - approximately two months’ time. Although no delay is acceptable, this is not an inordinate delay. It does not give riseto a significant concern, for example, of erosion of memories over that additional period of time.

[ 53 ] Having weighed the factors and the competing interests, I am satisfied that the Accused’s interest in having the testing done so as to potentially advance his ability to make full answer and defence outweighs any inconvenience caused due to the postponement of the trial for a couple of months as a result of the late filing of the Section 605(1) Application. Therefore, I am prepared to exercise my discretion and grant the Order.

Conclusion [ 54 ] The section 605(1) Order is granted on the terms and conditions set out below. [ 55 ] To address the concern raised by the Crown as to the potential of the Accused incriminating himself by consenting to the police taking his DNA sample and the sample being submitted for testing, the Order is to provide for the following conditions: (1) the Accused’s DNA sample is only to be utilized by Wyndham and strictly for the purposes requested by Defence counsel; (2) the Accused’s DNA sample is to be taken only after the Accused has had independent legal advice regarding the taking of the sample by the RNC and the proposed testing of the sample and the condom exhibit; (3) following the receipt of independent legal advice, the Accused confirms in writing his consent to the taking of his DNA and the proposed testing; and (4) unless a representative of Wyndham is called by the Accused to testify in this case at trial, the Accused consents, or further Order of this Court, Wyndham is (

a) not to communicate the results of the testing to any person or entity other than Defence counsel; and (

b) any report generated by Wyndham is to be sent directly to Defence counsel and there is to be no other distribution of the report or its contents. [ 56 ] The section 606(3) Order is granted. The trial is adjourned to February 21-24, 2023 to allow time for the scientific testing to occur. TERMS AND CONDITIONS OF THE order [ 57 ] The following are the terms and conditions of the Order:

(1) Within 7 days of this Order, the Accused is to receive independent legal advice regarding taking of his DNA sample by the Royal Newfoundland Constabulary (“RNC”) and the proposed testing of his DNA sample and the condom exhibit; IT IS FURTHER ORDERED THAT if following the receipt of independent legal advice, the Accused consents in writing to the taking of his DNA by the RNC and the proposed testing of his DNA sample and the condom exhibit by Wyndham Forensic Group Inc. (“Wyndham”) in Guelph, Ontario, the following conditions will apply:

(2) The Accused is to make arrangements and present himself to the RNC no later than November 24, 2022 for the purpose of the DNA sample being taken by the RNC;

(3) The RNC shall take a DNA sample from the Accused and send the sample along with the condom exhibit to Wyndham following all usual protocols to ensure the continuity and the preservation of the sample and the exhibit;

(4) Upon receipt of the DNA sample and the condom exhibit, Wyndham is to ensure the continuity and preservation of the sample and the exhibit and initiate a chain of custody record;

(5) Wyndham is to conduct forensic DNA analysis of the condom exhibit and the DNA sample using the amplification kit(

s) identified in the Affidavit of Valerie Blackmore and complete

interpretation and comparison of generated profiles;

(6) Wyndham is to ensure the protection of the integrity of the evidence;

(7) The condom exhibit and DNA sample along with the original packaging will be returned to the specified contact person at the RNC in a manner that ensures the continued protection of the integrity of the evidence and the continuity and preservation of the sample and the condom exhibit;

(8) Upon return of the condom exhibit and the DNA sample, the RNC shall ensure the continued protection of the integrity of the evidence and the continuity and preservation of the sample and the condom exhibit;

(9) The Accused’s DNA sample is only to be utilized by Wyndham and strictly for the purposes requested by Defence counsel;

(10) Unless a representative of Wyndham is called by the Accused to testify in this case at trial, the Accused consents, or upon further

Order of this Court, Wyndham is (

a) not to communicate the results of the testing to any person or entity other than Defence counsel; and (

b) any report generated by Wyndham is to be sent directly to Defence counsel and there is to be no other distribution of the report or its contents; and

(11) The analysis by Wyndham is to be completed in sufficient time prior to the commencement of the trial on February 21, 2023 to allow the results to be communicated to Defence counsel. If there is to be disclosure to the Crown, such disclosure shall occur no later than January 13, 2023. IT IS FURTHER ORDERED THAT the trial is adjourned to February 21-24, 2023. _____________________________ Sandra R. Chaytor Justice