R. v. Davis-Ball, 2021 ONCJ 560

CITATION: R. v. Davis-Ball , 2021 ONCJ 560 St. Catharines DATE: 2021.11.01 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — NATHANIEL DAVIS-BALL Before Justice Fergus ODonnell Heard between 4 February, 2020 and 3 September, 2021 Reasons for judgment released on 1 November, 2021 Mr. Mark Eshuis..................................................................................................... for the Crown Mr. Scott Buchanan.................................................... for the defendant, Nathaniel Davis-Ball Fergus ODonnell J.: Overview 1 .

Nathaniel Davis-Ball stands charged with aggravated assault, extortion and robbery, all arising out of an alleged conflict between him and Brian Upham over a small debt. The relevant events played out in the wee hours of 13 August, 2018 as Mr. Upham and Mr. Davis-Ball allegedly made their way from downtown St. Catharines to the home of Mr. Upham’s mother and step-father in Western Hill. The key events occurred in the breezeway of his mother’s and step-father’s home. 2 . A number of issues arose in the course of the trial, including the following: a . Had the Crown proved beyond a reasonable doubt that Mr.

Davis-Ball was the assailant? This included issues of witness reliability and credibility, in-dock identification, cross-racial identification and a suggestion of single-photo influence on Mr. Upham’s identification. b . Were the essential elements of each offence made out? c . Should the evidence of a scene of crimes officer who seized a baseball hat for DNA analysis be admitted without her testimony? d . If the case was made out against Mr.

Davis-Ball, should the charges be stayed because the police had failed to preserve downtown CCTV footage, had failed to obtain gas-station CCTV and had failed to investigate other scenes on the route from downtown St. Catharines to Mr. Upham’s parents’ home? What Allegedly Happened That Night? 3 . The core direct evidence about what allegedly happened between Mr. Upham and Mr. Davis-Ball comes from Mr. Upham, his mother, Stacey Eckhardt and his step-father, Gary Eckhardt. At the time, Mr. Upham was living on Welland Avenue in downtown St.

Catharines and his mother and stepfather were living on Louth Street, a few kilometres away. Mr. Upham would visit the Eckhardt home occasionally but his relationship with his step-father was strained because Mr. Eckhardt disapproved of some of Mr. Upham’s life decisions, including drug use. 4 . On the night in question, Mr. Upham testified that he was walking homeward from a condominium on Rykert Street, where he had been hanging out with friends, a route that took him through downtown St. Catharines. While passing through downtown around 2:30 a.m., he met a group of people near the Mikado bar.

Some of the group were familiar to Mr. Upham from high school; Mr. Davis-Ball was also allegedly with them. Coincidentally, Mr. Upham owed Mr. Davis-Ball forty dollars for drinks at that same bar a couple of months before. The group chatted for a while and a couple, not from Mr. Upham’s high-school days, invited Mr. Upham to their place for drinks, so they started retracing the route Mr. Upham had just taken, back across the Burgoyne Bridge into Western Hill; there were about five or six of them all told. After the bridge they stopped by the home of Mr. Upham’s high school acquaintances [1] and waited for Mr.

Davis-Ball to come out. From there they went to Mr. Davis-Ball’s house and Mr. Upham went in with him and asked him to front twenty dollars worth of cocaine, which Mr. Davis-Ball refused to provide.

5 . Mr. Upham said he then left Mr. Davis-Ball’s apartment and headed off with the couple who had invited him for drinks, but Mr. Davis-Ball came out and grabbed him, said they were going for a walk and took him to a field described by Mr. Upham alternatively as about a minute’s walk or twenty feet away, opposite Chetwood Street. In that field, Mr. Upham said Mr. Davis- Ball twice assaulted him with multiple punches and kicks, having first told the couple to keep back. [2] This, Mr. Upham said, was because he still owed the forty dollars from before. After the assaults, Mr.

Upham said he left the park and headed towards the Eckhardts’ house, which was nearby, to get medical attention. He feared he had a broken orbital bone and was having trouble seeing and breathing. 6 . About a block later, Mr. Upham testified, he realized that Mr. Davis-Ball was chasing after him and Mr. Davis-Ball eventually unsuccessfully threw a small, plastic child’s chair at him, which had been lying by the street. He grabbed Mr. Upham and started filming him with his phone, saying that this was what happened to people who owe him money and that they were going to Mr.

Upham’s parents’ house right then to get the money. (Mr. Upham said he had told Mr. Davis-Ball he was going to his parents’ house and would pay him around 9:30 or 10 a.m.). Mr. Davis-Ball, he said, grabbed him by the neck and accompanied him to the breezeway of the Eckhardts’ house. 7 . At this point two additional witnesses come into the picture, Mr. Upham’s mother, Stacey Eckhardt and his stepfather, Gary Eckhardt. They heard a knock at the door and Mr. Eckhardt answered, returning to the bedroom saying it was Mr. Upham, asking for his mother. 8 .

As with any event observed by multiple people, there is no absolute consistency among the versions of what happened by the Eckhardt breezeway/driveway, but they can be summarized as follows: a . Mr. Upham said that i. Mr. Davis-Ball was wearing a white Chicago Bulls hat, jeans and perhaps a black T-shirt (he was not sure about the shirt colour). ii. he knocked at the breezeway door and his stepfather answered and went and got his mother. iii. Mr. Davis-Ball (whom he knew as Nathan) threatened him and his parents that if he didn’t get the forty dollars, he would drag Mr. Upham down the street and kill him. iv.

The amount demanded rose from forty dollars to seventy dollars. v. Mr. Davis-Ball dragged him from the breezeway and down the driveway towards the street, but Mr. Upham pulled back to the house because he feared being killed and hoped the Eckhardts would help him. vi. Mr. Davis-Ball punched him fifteen to thirty times and the Eckhardts were telling him to defend himself, but he didn’t want to do that and perhaps injure Mr. Davis-Ball and get charged. vii. Mr. Davis-Ball’s hat came off during the struggle in the driveway. viii. With his left hand on Mr. Upham’s neck, Mr. Davis-Ball used his right hand to push Mr.

Upham’s face through the breezeway window, which shattered and caused a serious and permanent disfigurement to Mr. Upham’s face. ix. Mr. Davis-Ball then fled in the direction of his own home and now Mr. Upham was angry. Mr. Upham followed him down the driveway calling out his name. [3] x. Mr. Upham identified a series of photographs of his injuries. There is absolutely no room for doubt but that these injuries satisfy the criteria for an aggravated assault. I note also that the photographs include additional injuries beyond the grievous cut to Mr. Upham’s jaw area.

They include very significant bruising around the right eye, injuries to his back and injuries to his legs. Mr. Buchanan challenged Mr. Upham about whether there were injuries to his back or simply indentations from the hospital bedding and Mr. Upham stuck to his version. The photographs do show some abrasions that could not be caused by sheets. In addition, Detective Constable Prinsen testified to bruising on Mr. Upham’s back, which is supportive of additional injuries. xi. He was never keen on pursuing charges against Mr.

Davis-Ball, but felt he had no choice but to go along with it if the police pursued it because of the severity of his injuries. b . Mr. Eckhardt testified: i. Around three or four in the morning he and his wife were sleeping and were awakened by a knock on the door. It was Mr. Upham asking for his mother. He saw nobody else at that point. At this point the breezeway light was not on and it was quite dark. ii. He got his wife from the bedroom and stayed in the kitchen as she went to the breezeway door. He heard conversation for about five minutes (clearly only an estimate based on Mr.

Eckhardt’s facial expression as he testified), and the voices got progressively louder so he went back outside. He heard three voices. iii. He found “the boys” pushing and shoving and told them to stop and to leave, as he had heard his wife tell them already. The third person was, “African American, skinny, six feet or six feet one inch, wearing a ball-cap, the details of which he did not recall.” He had an afro. [4] iv. The person with Brian was saying, “I want my money, give me my f-ing money”. Brian was saying he didn’t have any and to let go of him. v. There was pushing and pulling up and down the driveway.

Mr. Upham was trying to free himself. He tried to separate them. He said he would call the police and the assailant said, “Brian if they call the fucking cops, you’re a dead man.” He asked his wife to call the police, but she was hesitant. The assailant then started throwing punches, three punches, hitting Mr. Upham in

the head. Mr. Upham never fought back, just tried to escape. vi. The assailant pushed Mr. Upham by the collar through the breezeway window and there was blood. Mr. Eckhardt then stepped in and pushed the assailant who ran northward down the sidewalk. vii. Mr. Eckhardt identified the baseball hat on the ground in a scene of crimes photo as the same hat the assailant was wearing. viii. He hadn’t turned the light on himself but did recall that at some point in the confrontation he could see better. c . Mrs. Eckhardt noted the following: i.

The assailant was someone she had never seen before, African-American, skinny, a foot taller than her son, with hair longer than it was in court (which was shaved down), wearing a baseball cap, which she believed to be white. ii. When she asked why they were there (it was out of character for her son to come at that hour), the assailant said he wanted his money so she asked Mr. Upham if he owed money and he said he owed forty or sixty dollars (she was not sure). She told the assailant to leave, there was no money there, and the assailant said then he’d take Mr. Upham down the street and beat him.

She thought that was just a scare tactic so said she didn’t care what he did. iii. After that the assailant grabbed Mr. Upham by the shirt and started tossing him about, “like a rag doll”. She threatened to call the police and the assailant replied that if she did that, she had a death wish. Her husband pressed her to call the police after it became physical. [5] iv. She went into the house and came back out, dialing 911 as she went. She heard a loud sound, the sound of her son’s head going through the window, which she heard but did not see, only seeing blood everywhere as a result.

The assailant ran down the street and his hat came off as he went. Nobody else was wearing a hat. “Much Ado About Nothing”: The Hearsay Contest over the DNA Evidence 9 . One piece of evidence at trial was a Chicago Bulls baseball hat. A baseball hat was seen on the assailant by Mr. Upham and Mr. Eckhardt and a hat, was seen by Mrs. Eckhardt to fall off his head as he fled. A Chicago Bulls hat was identified by Mr. Eckhardt and Constable Hrcak in situ on one of the scene-of-crime photographs.

A baseball hat was ultimately submitted to the Centre of Forensic Sciences and I heard evidence from the forensic biologist to the effect that, as a layman would express it rather than a scientist, the likelihood that the DNA identified on the cap was Mr. Davis-Ball’s rather than another person not related to him was one trillion to one. 10 . The scenes of crime officer, Constable April Hill, did not testify at the trial. The Crown sought to enter her evidence as necessary and reliable hearsay with respect to the continuity of the baseball cap, which was ultimately seized and submitted by her.

The defence opposed that application. I allowed it. 11 . In the circumstances of this case, whether or not that application succeeded is really of no moment. Any gaps in continuity go to weight only, not to admissibility. Assuming that I had not granted the Crown’s application to introduce Constable Hill’s notes, etc., I would have the following narrative: a . The relevant events took place on a suburban residential street in the wee hours of the morning; b . The alleged assailant was wearing a baseball cap or hat, according to all three direct witnesses; c .

To the extent the baseball cap was identified by the witnesses it was consistent with the cap in the photograph, whether by colour or by team name. d . Mrs. Eckhardt saw the hat fall from the assailant’s head as he fled after pushing her son through the window. e . The baseball cap was found in a location consistent with that observation. f . The baseball cap’s location was confirmed the first officer on scene, Constable Hrcak. g . Without the necessary/reliable hearsay application we do not have evidence of what happened to the hat once Constable Hill took over as scenes of crime officer (“SOCO”).

The gap in continuity runs to when the forensics officer, Constable Phillips, picked it up from the property management unit later that day. h . Forensic Services Unit (“FSU”) Detective Constable Jeremy Phillips retrieved a bag from the FSU general locker on the day of the assault around 1: 35 p.m. Access to the area and locker is controlled. He explained the process whereby SOCOs would submit exhibits intended for FSU via the Evidence Management Unit. i .

He collected a sealed paper bag with seal #54834, as well as Constable Hall’s badge number and the date of 13 August, 2018 (that day) at 6:05 a.m. (almost exactly two hours after Constable Hrcak arrived on scene as the first responding officer). j . At 2:05 p.m. Constable Racine of the FSU took possession of that exhibit from Constable Phillips; she described it as a Chicago Bulls hat in a bag with the same seal number and officer name and badge number. She took DNA samples from the cap and submitted them to the Centre of Forensic Sciences. k .

Review of the DNA samples from the baseball hat established, in layperson’s terms, [6] that Mr. Davis-Ball’s DNA was present around the inside headband of the cap and in blood on the brim. [7] 12 .

Even without the hearsay evidence from Constable Hill, the gap in continuity between Constable Hrcak’s viewing of the hat around 4 a.m. and Constable Hill’s apparent submission of it two hours later or even Constable Phillips’s recovery of it early that afternoon strikes me as a nothing and I have no doubt that the cap analyzed by the Centre for Forensic Sciences is the cap seized from the driveway, which is the cap worn by Mr. Upham’s assailant.

I have no concern that there was a multiplicity of Chicago Bulls baseball hats on the ground near where the assailant fled at 4 a.m., nor that Constable Hill acted as SOCO for any other case involving a Chicago Bulls hat on that shift, nor that the integrity of the cap was interfered with in any way.

13 . As is noted above, the hearsay hat issue related to the SOCO, Constable Andrea Hill. She did not testify at trial and instead the Crown sought to adduce her affidavit. In support of that application, the Crown tendered an affidavit from Constable Hill, sworn in November, 2020, when the trial was set to resume, to the effect that she was off work due to psychological injuries arising from work. An attached letter from her psychiatrist said that even the idea of testifying was causing a deterioration in her condition. The affidavit also attached Constable Hill’s notes and will-say statement. [8] 14 .

As I have said, my finding that, in the final result , the gap in continuity created by Constable Hill’s absence from the trial does no ultimate damage to the Crown’s case, effectively makes my antecedent admission of the “necessary and reliable” hearsay of Constable Hill irrelevant, so I shall be as brief as I can on this point. 15 . All sorts of trials might go asunder or not be judged on the merits if hearsay evidence were not admitted from time to time. The courts have recognized this for centuries and built a series of discrete “hearsay exceptions”.

Latterly these exceptions came to be replaced by the idea of principled exceptions to the hearsay prohibition, with those exceptions being based on the foundations of necessity and reliability. 16 . On the issue of reasonable necessity, the record shows that Constable Hill was off-duty for medical reasons and unable to testify. As the trial got adjourned for a long period mid-trial, it was August, 2021 before this point got argued. Mr. Buchanan said there should be a new letter. In a perfect world, I suppose an updated letter from the psychiatrist would be nice, but nice and necessary are not co-extensive.

The evidence of Constable Di Franco made it clear that Constable Hill remained off-duty as of August, 2021 when this issue was argued. I have no problem concluding that Constable Hill remained unavailable to testify at the relevant time and the admission of her evidence by affidavit was reasonably necessary.

In relation to the evidence itself, as opposed to Constable Hill’s personal circumstances, it might be said that since continuity goes only to weight, her evidence would not be absolutely essential to the Crown’s case, but I do not take the concept of reasonable necessity as disentitling the Crown from adducing hearsay where doing so might dilute the strength of its case. 17 .

As for reliability, this was a sworn statement setting out the more or less administrative functions of a SOCO over the course of a period of a couple of hours, by the end of which the identity of the suspected assailant was probably not even known. There is no basis whatsoever to assume any animus, any tampering, any sloppiness, any multiplicity of Chicago Bulls hats strewn across the lawns of Louth Street or any cross-contamination, nothing at all beyond pure speculation.

The “number of significant areas of cross-examination” the defence said were open to examination in relation to Constable Hill were neither enumerated nor at all obvious to me. The likelihood of cross-examination of Constable Hill making any difference in relation to the admissibility of, or weight given to, the Chicago Bulls hat was somewhere between infinitesimal and nil. I was satisfied that the reliability criterion is easily made out here. 18 . I note also that the introduction of evidence of this or similar nature by affidavit is hardly earth-shaking.

Section 53 of the Controlled Drugs and Substances Act allows for continuity to be proved by affidavit.

Section 657.1 of the Criminal Code provides for property owners’ evidence to be provided by affidavit.

Section 29 of the Canada Evidence Act envisages the introduction of financial records by way of affidavit. Credibility and Reliability and What Happened That Night 19 . Credibility involves whether or not a person is being honest. Reliability relates to whether or not an honest witness was in a position accurately to observe, recall and recount events as they actually were. Both matter. 20 . The three key witnesses in this trial for whom credibility and/or reliability were in issue were Mr. Upham and the Eckhardts.

Having considered their testimony in detail, I am of the view that each of them gave a generally reliable narration of the events of that evening. [9] There is really no meaningful basis to challenge the credibility of the Eckhardts or indeed their reliability beyond the fact that different people see, remember and recall the same event somewhat differently than others. As for Mr. Upham, he had more involvement with the police in the sense of speaking to them about the offences on multiple occasions.

I do not believe he was being dishonest with the police or to the court and accept his explanation that, to the extent there were divergences from one statement to the other or allegations in one that were not in the other, those differences lie in the fact that he was not keen to pursue charges, that he had only very recently been the victim of serious trauma and that what a witness tells different interviewers often includes more or less detail depending on how the interview is done, which is somewhat beyond the witness’s control as the non-professional participant in that process. [10] Obviously, all material inconsistences and omissions require consideration and assessment, but they do not necessarily bespeak dishonesty or unreliability.

I accept Mr. Upham’s version of the events of that evening as being highly reliable. [11] 21 . The simplest determination I have to make relates to what happened at the Eckhardts’ home. There were three witnesses to what happened there. Two were strangers to the assailant. While there are some variations in their details of what happened (it would be supremely suspicious if there were none), [12] it seems to me that there is so much consistency, accompanied by photographic evidence that I can accept the following as proved beyond a reasonable doubt: l . Around 4 a.m., Mr.

Upham and a tall, thin black male (“the assailant”) appeared at the breezeway of the Eckhardt home. The Eckhardts had never met the assailant before. Mr. Upham had significant previous engagement with him, going back years. a . As the culmination of a dispute over a debt owed by Mr. Upham to the assailant, the details of which are set out above, the assailant pushed Mr. Upham through one of the breezeway windows and caused very significant injuries to Mr. Upham’s face and fled northward up Louth Street., 21 . As for events before arrival at the Eckhardt residence, I am convinced that Mr.

Upham gave a fair and reliable description of what happened, although to some extent that is irrelevant because the charges as laid could be framed solely within the context of the factual allegations at the Eckhardt home. Mr. Buchanan cross-examined Mr. Upham thoroughly on those events, including various challenges to inconsistencies or omissions in his statements, which I address elsewhere, and suggestions that what Mr. Upham suggested happened simply did not make sense. What “makes sense”, however, is highly contextual in relation to time, place and participants.

What “makes sense” to a variety of reasonably well-off, reasonably well-adapted, socially responsible professionals in a courtroom mid-day, may be remarkably different from what “makes sense” to a loosely-connected group of individuals serendipitously getting together outside a bar after last orders and deciding to head off to continue the evening in pursuit of some combination of alcohol, drugs and good times, one of those people being Mr. Upham who had a drug problem and

whose stepfather thought he made bad life decisions. 22 . In my view, Mr. Upham provided a plausible and convincing chronology of the events of that evening, from his attendance at a social gathering, to his return homewards via downtown St. Catharines where a happenstance connection with some loosely connected associates of his led to a change of plans. Hoped-for drinks and fronted drugs now being on Mr. Upham’s revised to-do list for the night, that necessitated a volte-face by him for those purposes, leading him back in the direction whence he had just come.

It may not be what everyone would be doing at three o’clock in the morning, but it is entirely plausible, it has not been undermined and I am satisfied beyond a reasonable doubt that it is what happened. [13] It is not always safe to make assumptions about how other people “would” react in a given situation in making credibility determinations about a witness. The Perils of Eyewitness Identification 24 . There is no reasonable doubt but that Mr.

Upham was the victim of one very significant assault that morning, resulting in very serious injuries to his face, preceded by assaults in the park by Chetwood Street. [14] In light of his evidence and the evidence of the Eckhardts, any other conclusion about what happened in the driveway would be perverse and any other conclusion about the earlier events would in my opinion be unsound. However, the Crown must obviously prove beyond a reasonable doubt that Mr. Davis-Ball was the assailant. Mr. Buchanan says the Crown has failed to meet this standard. 25 .

Identification is a perennial peril in the prosecution of perpetrators. Many wrongful convictions are rooted in flawed eyewitness identification. This is particularly true in case of stranger on stranger interactions. There can be many dangers, including as a few that a witness’s observation may be very brief, may be made in less than ideal circumstances such as darkness or distance or intoxication or may have been made at a time of extreme stress.

A witness’s evidence may lack credibility and/or reliability, i.e. the witness may be lying or the witness may simply not have been in a position to give a reliable opinion to the court about who and what they saw. There can be additional concerns when a person of one racial background is called upon to identify someone of another racial background. [15] The once-common “in dock” identification has at long last been pretty much consigned to the dustbin of legal history; it may pop up its head from time to time but its very weak or non-existent probative force has been clearly established.

There may also be problems with the procedures followed by the police in conducting identification parades or photo line-ups for witnesses. 26 . Mr. Upham described Mr. Davis-Ball as someone he had met in the past through acquaintances; they would run into each other “here and there”, perhaps about once a month, over a period of three or four years. They would drink or do drugs or play pool together, but not often. He had last run into Mr. Davis-Ball at the bus terminal a week before this event He had last had drinks and played pool with Mr. Davis-Ball about a couple of months before and Mr.

Davis-Ball had paid $40 for Mr. Upham’s drinks, which Mr. Upham still owed at the time of the offence. Mr. Buchanan said that Mr. Upham’s identification of Mr. Davis-Ball was incredible because (

a) he did not know Mr. Davis-Ball’s address; (

b) he knew him as Nate Oliver. I disagree. First, countless people do not know addresses, some do not even know the actual address they themselves are living at, but they know how to get there, which is all that matters to them. If Mr. Upham wanted something from his assailant, he was unlikely to need his postal code; it was hardly that kind of relationship. When he visited the house en route down Louth Street, the house number was presumably not what was front-of-mind for him, it was his hope of getting fronted some cocaine. As for the surname “Oliver”, it carries little or no weight. Mr.

Upham may have mis-remembered the surname. Equally possible is that Mr. Davis-Ball actually used that as an alternate persona. I do not know one way or the other, but I do know that it is not an “error” or an oddity or an inconsistency that undermines Mr. Upham’s reliability or credibility on the issue of identification. 27 . Mr. Buchanan raised the issue of a photograph shown to Mr. Upham while he was in the hospital. Constable Bianchin said it was Constable Rootes, who was not called by either side, who showed a Facebook profile photo to Mr.

Upham; he said it was a “not very detailed photo” of a male wearing a mask (this was before everyone wore masks). This photo was not put to Mr. Upham and it was not followed up in any meaningful way in cross-examination of the principal investigating officers. I have no basis upon which to be concerned that this poor-detail photograph of a masked person in any way compromises the quality of Mr. Upham’s identification of a person with whom he had years-long interaction. 28 . I have referred earlier to the dangers of cross-racial identification, but do not propose to belabour them on the facts of this case.

On the evidence before me, I am satisfied that Mr. Upham and Mr. Davis-Ball were not strangers to one another, not best mates but certainly not strangers. I will go farther than that and say that given Mr. Upham’s uncontradicted characterization of the frequency with which he had met the alleged assailant/Mr. Davis-Ball, the nature of those interactions and the time period over which they had occurred, he knew Mr. Davis-Ball. 29 .

It is, of course, possible that a person could mis-identify someone they “know”, depending on the circumstances and that cross- racial identification could be a concern in such a scenario, for example a fleeting glimpse of a known person and/or one taken at a distance and/or in poor lighting. These facts, however, are not those facts. This interaction took place over a prolonged period of time down major streets, largely at close distance. On these facts I have no hesitancy in relation to either the reliability or honesty of Mr. Upham’s identification of Mr. Davis-Ball as the assailant.

The assailant was Nathaniel Davis-Ball. 30 . I would reach this conclusion beyond a reasonable doubt based solely on the evidence of Mr. Upham, i.e. without even considering the baseball hat DNA evidence or the evidence of injury to Mr. Davis-Ball consistent with pushing someone’s head through a window. 31 . Mr. Upham’s familiarity with Mr. Davis-Ball was repeated, reasonably frequent, long-term and current. It carries none of the dangers of stranger identification. Although he and Mr.

Davis-Ball were not best friends, which is not a requirement for a safe and valid identification, their mutual involvement was sufficiently frequent and long-standing that it can safely be said that Mr. Upham knew Mr. Davis-Ball well enough to identify him reliably. That level of familiarity is sufficient to eliminate any concerns about cross-racial identification. 32 .

The Eckhardt’s evidence on eyewitness identification is of no meaningful value insofar as they had never met the assailant before, their interaction with him that night was brief, the lighting at some spots was less than ideal and it is a cross-racial identification. They do, however, confirm the general description of the assailant in terms of height, body bulk, colour, hair style, etc., all of which are consistent with Mr. Davis-Ball, although that could just be coincidence. Other Evidence Leading Towards Identification of Mr. Davis-Ball as the Assailant

33 . There are obviously other ways of identifying a person other than by eyewitness identification. In this case there are at least two other components. 34 . One is the baseball cap. Constable Colton Hrcak, the first responding officer, identified it by photograph as having been on the ground by the driveway when he attended on the call. I have referred to it earlier in the context of the continuity evidence of Constable Hill, the scenes of crime officer and continuity witness who did not testify at trial and was not cross-examined. The evidence from the Centre of Forensic Sciences makes it clear that, Mr.

Davis-Ball “cannot be excluded” as the source of the DNA identified on that cap and that it is a trillion times more likely that he is the source rather than some other person unrelated to him being the source. The assailant has been identified as having worn a baseball cap or hat by Mr. Upham and by Mr. and Mrs. Eckhardt. It was identified in different ways, for example by colour and by team, each of which is consistent with what was found on the driveway. [16] I am satisfied beyond a reasonable doubt that the baseball hat that was submitted for DNA analysis carried Mr.

Davis-Ball’s DNA and that it was the hat worn by Mr. Upham’s assailant at the Eckhardt house. This is a powerful, but not necessarily determinative piece of evidence in assessing whether or not Mr. Davis-Ball was the assailant. 35 . Police observations of Mr. Davis-Ball as recorded in photographs, show that he had cuts on the outward faces of both hands, i.e. on the right index finger and just above the left thumb. These injuries were described as fresh and actively bleeding when Mr. Davis-Ball was arrested only a few hours after the attack.

They are entirely consistent with injuries that could be sustained by someone pushing another person’s head through a glass window with both hands in the hear of the head, neck and/or shoulders. I would go so far as to say it is highly likely that a person doing that would suffer such injuries. It is a piece of circumstantial evidence that is admissible in line with the Supreme Court of Canada’s judgment in R. v.

Villaroman, 2016 SCC 33 , although I note that in this case the cuts and the hat are not the only or primary evidence in relation to identification, but rather are simply the icing on the Crown’s cake on that issue, since the Crown’s case on identification satisfies the reasonable doubt standard without either of these details. The Elements of the Offences Robbery 36 .

Section 343 of the Criminal Code provides multiple modalities for robbery, including stealing combined with violence or threats of violence and assault with intent to steal. Under s. 2 of the Code, “steal” is synonymous with “theft”. “Theft” is defined in s. 322 (although there is some circularity insofar as “steal” is used as part of the definition of one version of theft). 37 . Mr. Upham agreed that he owed Mr. Davis-Ball forty dollars. While Mr.

Davis-Ball would not be lawfully entitled to use violence to enforce that debt, his reclaiming of that forty dollars by violence would not be a robbery but “only” an assault (or an elevated form of assault depending on the physical consequences). However, Mr. Upham testified that Mr. Davis-Ball elevated his demand from forty dollars to seventy dollars. I accept Mr. Upham’s testimony on this point and find it to be proved beyond a reasonable doubt. 38 . Accordingly, the Crown has proved that Mr. Davis-Ball assaulted Mr.

Upham with intent to steal (having raised his claim to seventy dollars, thirty dollars of which he had no claim to) and the charge of robbery is made out. Aggravated Assault 39 . “Aggravated assault” consists of wounding, maiming, disfiguring or endangering the life of a person. This offence requires proof of intent to apply unlawful force to another person combined with reasonable foreseeability of injury. It was argued that what happened to Mr.

Upham at the Eckhardt home was just a “freak accident” arising from a scuffle with “several participants” and that it was not reasonably foreseeable that he would go through a window. This is not at all reflective of the evidence insofar as: (

a) there is no evidence of anyone being involved at the relevant time other than Mr. Davis-Ball on the giving end and Mr. Upham on the receiving end of unlawful force; and (

b) the evidence makes out that Mr. Davis-Ball pushed Mr. Upham through the window. If there is a world in which it is not reasonably foreseeable that pushing a person’s head through a glass window would wound, maim or disfigure that person, it is not this world. [17] 40 . The foregoing paragraph is five sentences long. On the facts of this case that is five sentences more than should reasonably be necessary to discuss whether or not this conduct makes out an aggravated assault. Extortion 41 . Extortion consists of: (

a) the use of threats, accusations, menaces or violence; (

b) without justification; (

c) to induce any person; (

d) to do anything or cause it to be done. 42 . The evidence before me establishes that Mr. Davis-Ball uttered threats and used actual violence in attempting to induce Mr. Eckhardt to pay him seventy dollars, thirty dollars of which he had no right to at all. Even if the escalation of the debt had not been made out and Mr. Davis-Ball was simply using threats and violence to enforce the admitted debt of forty dollars, the existence of a debt is not a reasonable justification or excuse for assault or threats of death or injury. The extortion charge is made out beyond a reasonable doubt.

Has The Crown Proved Its Case Beyond A Reasonable Doubt? 43 . I am satisfied that the Crown has proved Mr. Davis-Ball’s guilty on all three charges beyond a reasonable doubt.

The Stay Application 44. Mr. Davis-Ball applied for a stay of his charges under sections 7 and 11(

d) of the Charter of Rights. In basic terms the request fora stay was based on lost evidence, originally video evidence from downtown street CCTV and a gas bar, later adding in a policefailure to investigate the child’s chair somewhere en route from Mr. Davis-Ball’s house to the Eckhardts’ home.45. The plastic chair “breach” related to Mr. Upham’s assertion that, en route down Louth Street, Mr. Davis-Ball grabbed a child’splastic chair from the roadside and threw it at him, but that the chair did not hit him. Constable Hrcak testified that Mr.

Uphamhad told him about that event but that he had not investigated as he was holding the scene. He had noted that was not investigatedbecause of the “belated nature”, but conceded that was not a particularly apt description for something that had happened a fewhours before investigators might have followed up. Constable Hrcak also testified that the ability to follow up on that woulddepend on the availability of other units to respond and the lack of clarity about that antecedent event and its location given Mr.Upham’s demeanour.46.

The concept of “lost evidence” can be an important protection that is safeguarded in the decided cases under sections 7 and 11(d)of the Charter.47. The importance of the Charter in the lives of Canadians can hardly be overstated. It reaches into almost every nook and cranny ofthe state’s interaction with the people. Four decades of jurisprudence under the Charter have resulted in protections forindividuals, for groups and for society as a whole that would not likely have come about were it not for the Charter, although noindividual Charter landmark will likely achieve the support of all observers.

As with all good things, however, the Charter bringswith it risks. One can, for example, have too much of a good thing, because ideally almost all things exist in harmonious balancewith other things, including constitutional protections. One person’s claimed constitutional “right” may well bump up againstanother person’s safety and security.

It is superficially attractive to see the Charter as standing alone at the zenith of Canadiansociety, pre-eminent and occupying the moral high ground of Canadians’ lives, but, wonderful as it is, the Charter is really onlyone of the twin peaks of the legal landscape, the other being the rest of the Constitution Act, which for over a hundred years beforethe Charter recognized the importance of, “Peace, Order and good Government” and continues to do so today.. 48.

Both, “Peace, Order and good Government”, and the rights and values set out in the Charter matter to Canadians, but there is anomnipresent danger that giving unbalanced weight to the rights in the latter could endanger the values in the former. The dangersinclude creating an imbalance between rights and responsibilities and an imbalance between the rights of one person and the rightsof another (the right to be safe, for example), as well as a danger, if that imbalance becomes too great, of discrediting the Charteritself in the eyes of the governed.

The impact of judges’ decisions in the real lives of all Canadians, not just the lives of criminaldefendants, should never be overlooked.49. The rights protected in relation to “lost evidence” are important rights in appropriate circumstances, but there is a danger of takingthe point too far. In the present case, for example, the ultimate relevance of Mr.

Upham being chased down Louth Street, or not by an assailant wielding a plastic child’s chair is remarkably trivial, but it is argued that it rises to such great constitutionalsignificance that the prosecution of a serious personal injury offence should be stopped dead in its tracks. As will be seen below,two of the three Charter arguments advanced before me were so weak on the facts of this case that they should not even have beenargued.

To give traction to the argument that the police had a positive duty to pursue the plastic chair aspect of the allegations andthat the police’s “failure” to do so should deprive society of its right to a conviction (assuming the case against the defendant hasotherwise been made out), would understandably undermine public confidence in the courts and the Charter.50. As for the CCTV tapes the history is as follows. Detective Di Franco assigned Detective Prinsen to review CCTV footage from aseries of cameras along the route Mr.

Upham said he had taken from Mikado back towards the Burgoyne Bridge leading toWestern Hill. Realistically, this would be the first few minutes of a much longer journey from Mikado to the Eckhardts’ home onLouth Street. That CCTV data was under the control of a third party, but certain police officers had the ability to review it on theirwork computers, but not to save it. On that review, Detective Prinsen observed a group of people, one female and four males, oneof whom was consistent with Mr. Upham and the other of whom was potentially consistent with his description of his assailant.

The quality of the cameras was not good as they were panoramic shots from a high angle and Detective Prinsen said the footagefrom them tended to be inadequate for identification, a conclusion he confirmed in cross-examination in more detail, i.e. that itwould be very hard to come up with an identification given the darkness and distance. Really, all he could tell here was skincolour and the presence of a beard. This undermines the defence contention that the downtown CCTV could have value toidentify the couple travelling with Mr. Upham when he claimed he was assaulted by Chetwood Street.51.

On the day of the attack Detective Prinsen submitted a request to the Forensic Services Unit to have the downtown CCTV footagepreserved. There was a preservation period of only seven days at that time. On 21 August, the eighth day, Constable Prinsenfollowed up on his request and was told that due to volume of work his request to have the footage saved had not been acted on. Incross-examination he testified that this was very unusual, that they typically had great success retrieving that CCTV footage in thepast, usually having the actual video in hand within five or six days.

This was the first time he had a problem.52. There was a second CCTV location investigated by the police, the Gale’s gas bar at St. Paul Street West and Louth Street. Therewas only indoor CCTV at that location, showing Mr. Upham buying a bottle of Coke, alone and uninjured. The police did notobtain a copy of that video. This is the second Charter argument that should not have been argued.

The evidentiary value of thatvideo, i.e. that he was alone inside the gas-bar, strikes me as nil and the police are not obliged to make work for themselves orbusiness owners, even relatively minor work, for evidence of no value.[18] Inquiries of a business in the same strip mall showed ithad an external CCTV camera, but it had no night-time capacity. This demonstrates that the police turned their minds to the issueof potentially relevant video at the Gas Bar but none was found.53.

The parties were in agreement about the governing law in cases of “lost evidence”, so I shall try not to spend too long on thataspect of the case. There are three recognized circumstances in which a defendant might bring an application for a Charterremedy as a result of lost evidence, which can broadly be characterized as follows, as set out by Code J. in R. v. Hassan, 2014ONSC 1345 , [2014] O.J. No. 988: 9 A s. 7 Charter Application that rests on an allegation of "lost evidence", as in the case at bar, is one of the more analytically complexspecies of Charter litigation.

That is because the case law has recognized three distinctly different kinds of Charter breaches in thiscontext: • First, a violation of the right to disclosure can be alleged. This involves two separate issues: whether the lost evidence wasrelevant, in the Stinchcombe sense of not being "clearly irrelevant", and should therefore have been preserved; and whether this relevantand disclosable evidence was lost due to "unacceptable negligence";

• Second, it can be alleged that the evidence was lost due to an "abuse of process". This may involve deliberate destruction ofevidence, where state actors intend to frustrate the administration of justice, but can also include a high degree of negligence by stateactors; • Third, a violation of the right to a fair trial can be alleged.

Even where unacceptable negligence or abusive conduct by state actorscannot be established under the first two forms of s. 7 breach, the loss of some particularly important piece of evidence may causesufficiently serious prejudice to fair trial interests that it amounts to a s. 7 breach. See: R. v. Carosella (1997), (SCC), 112 C.C.C. (3d) 289 (S.C.C.); R. v. Vu and La (1997), (SCC),116 C.C.C. (3d) 97 (S.C.C.); R. v. Bero (2000), (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.); R. v. Knox (2006), (ON CA), 209 C.C.C. (3d) 76 (Ont.

C.A.). 10 The above three kinds of s. 7 breach differ significantly because the first two involve some degree of fault analysis, at the s. 7violation stage, with less emphasis on the importance of the lost evidence or on any prejudice to the result at trial until the s. 24(1)remedies stage of analysis is reached. The third kind of breach, conversely, focuses on the importance of the evidence and on prejudice,at both the violation stage and at the remedies stage, and does not depend on any kind of fault.

The three kinds of s. 7 breach also differin terms of the burden of proof as a failure to preserve relevant evidence, in relation to the right to disclosure, shifts the burden to theCrown to prove an absence of "unacceptable negligence". The other two forms of s. 7 breach place the burden on the defence throughout.The degree of prejudice to the administration of justice or to the result at trial is a highly relevant consideration at the s. 24(1) remediesstage, in the case of all three forms of s. 7 breach.

In particular, a stay of proceedings is only appropriate in exceptional cases, whereirremediable prejudice can be demonstrated and where lesser remedies will not suffice There was no allegation of abuse of process, the second category, in this case. 54. A useful decision-tree for matters such as this can be found in the judgment of Doherty J.A. in R. v. Bero, (ONCA), [2000] O.J. 4199, at paragraph 30.55.

Where there has been a breach of the disclosure obligation, the onus is on the Crown to demonstrate that the failure to disclosewas not the result of, “unacceptable negligence.” If the Crown cannot demonstrate that, then the breach would be made out andthe question of remedy would have to be addressed. Where the allegation is that the lost disclosure will breach the right to a fairtrial, the onus is on the defence throughout.56. With respect to the alleged disclosure breach argument, the foundational question is necessarily whether or not the informationinvolved/lost was relevant.

If it was not relevant then there is no duty to preserve or disclose it. It is important to note, however,that the standard set for the Crown’s disclosure obligation in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326 is notstrictly speaking, “is it relevant?”, but rather, “is it clearly irrelevant?”. If material is not “clearly irrelevant”, then a duty todisclose follows. The “clearly irrelevant” standard necessarily errs in favour of disclosure and is recognized as a low standard. Alleged Breach of the State’s Preservation and Stinchcombe Obligations 57.

I shall consider each alleged breach separately, in chronological order.58. I have heard a fair bit of detail about the downtown CCTV coverage. This is one of those many cases that prove the wisdom ofthe policy that stay applications[19] should follow a trial and should almost never be heard before the trial. I think that the mostthat can be said of the downtown CCTV footage in this case is that it is not “clearly irrelevant”, although that strikes me as acharitable description given what we have heard about the nature of the footage.

It is clear from Constable Prinsen’s evidence,including his evidence in cross-examination that the high camera location, panoramic coverage and lighting conditions made itpossible only to make very general conclusions about anyone on the recordings, such as gender, skin colour, beard and the like. Itis clear that it could not have provided the identity of any of the participants beyond perhaps demonstrating a consistency or lackof consistency with a believed victim or assailant.59.

Assuming, though, that this was preservable and disclosable under Stinchcombe, the next analytical step is to determine whether ornot it was lost due to “unacceptable negligence”. The onus here is on the Crown.60. Terminology matters. “Unacceptable negligence” and “negligence” are not the same thing. Insufficient care or attention to a taskis already inherent in the concept of negligence, so “unacceptable negligence” must be something more than that; the mere frailtiesor imperfections of daily human existence do not suffice.

There are different ways whereby the Crown might meet its obligationto prove that the evidence was not due to unacceptable negligence. One way would be a case-specific approach, i.e. by callingeach participant in the process to establish what happened. That, however, is not the only way. In the present case, the evidencebefore me establishes that the Forensic Services Unit had never before failed Detective Prinsen in this respect. That bespeaks asystem that, despite what were then very tight time constraints, operated at a very high standard.

I am satisfied on a balance ofprobabilities that the Crown has demonstrated that there was no “unacceptable negligence” underlying the failure to preserve thedowntown CCTV footage. 61. If I am wrong in that conclusion, I am satisfied that neither a stay nor any other remedy is called for in relation to the downtownCCTV footage. The stay of proceedings is the guillotine of judicial remedies, not to be used lightly.

Here again, language matters:a stay of proceedings can only be granted in the “clearest of cases”, or, in the words of Justice Code in Hassan, supra,: “a stay ofproceedings is only appropriate in exceptional cases, where irremediable prejudice can be demonstrated.” These are bothpowerful statements and should not be diluted. The reality here is that the demonstrated impact of the failure to preserve thedowntown CCTV footage in the present case is zero. The quality of the images as described earlier is such that their evidentiaryvalue, is very low.

There is no basis at all to suggest that that footage in the hands of the defence could have identified other

witnesses or led to a different narrative or undermined Mr. Upham’s credibility in any way. No criminality of any type was alleged by Mr. Upham in relation to that time period. Neither a stay, nor any other remedy, can be justified because no harm has been made out. 62 . Moving on to the next alleged breach, the footage of Mr. Upham, alone in the gas bar kiosk buying his bottle of Coke is clearly irrelevant. It has nothing to do with anything. It precedes any allegation of assaultive behaviour by Mr. Davis-Ball. The fact that Mr.

Upham was alone inside the shop is not material to any issue and no materiality was made out either in examination of any witnesses or in argument. There was no outside footage. Even if there had been, it is hard to imagine how that footage, on the evidence in this case could have risen more than a millimetre above the “clearly irrelevant” benchmark. 63 . I note, in terms of overall diligence, that the police did investigate the plaza for other CCTV coverage and determined that an external CCTV camera did not have low-light coverage.

This demonstrates that the police were alive to the issue of CCTV discovery. 64 . With respect to remedy, if I am wrong in my conclusion about the gas-bar video, my comments above apply. 65 . Moving on to the child’s plastic chair that was not investigated, this challenge must fail at either the “clearly irrelevant” stage or the “unacceptable negligence” stage. I struggle to imagine what possible significance it might have if the police had detailed an officer to check Louth Street for the presence or absence of a child’s chair. Had the chair been found, would its presence have bolstered Mr.

Upham’s allegation that Mr. Davis-Ball had weaponized it? I cannot see how. If it had not been found, would that have undermined Mr. Upham, given the various explanations for its absence? I cannot see how. Ultimately, I am left to wonder precisely how the presence or absence of that chair somewhere along Louth Street c ould have made any difference in this trial. If there was a way, it has not been made clear to me. The police cannot reasonably be faulted for not having followed up on the plastic child’s chair.

It was one trivial detail in a tale of alleged assaultive behaviour leading from the assailant’s home to the Eckhardts’ home, a crime scene nine-hundred metres or more long. [20] The analysis of what the police might have done cannot be done with an expectation that every case will have devoted to it every resource that could conceivably be dedicated to a case. This was an assault and robbery allegation, not a homicide. The presence of the chair would not mean that Mr.

Upham was telling the truth about having it thrown at him and its absence would beg the question of how many other explanations might there have been, everything from whether it was garbage day to whether someone in need of a plastic child’s chair serendipitously happened by and noticed it in the road. The attempted elevation of this piece of “evidence” to the level of a Charter breach is precisely the sort of exercise that risks cheapening the value of the Charter ’s protections in the minds of informed and rational observers.

The chair was, at best, only “relevant” in the extremely expansive conception of relevance that, fairly enough, defines the disclosure obligation in Stinchcombe. The “failure” to follow up on it was not negligence on the part of the police, much less unacceptable negligence. [21] 66 . Accordingly, I am satisfied that the Crown has demonstrated that the plastic chair breach was not “unacceptable negligence” on the part of the police. 67 . If I am wrong in that conclusion, the question again becomes one of remedy and my comments above apply. The Fair Trial Argument for A Stay for Non-Disclosure 68 .

I have dealt hitherto with each of the items above in relation to the first of the three categories outlined by Code J. in Hassan, supra. My comments above are necessarily dispositive of any argument under the third branch set out by him. To track his language, there is, on the record before me, no plausible argument to demonstrate, “ the loss of some particularly important piece of evidence [that] may cause sufficiently serious prejudice to fair trial interests that it amounts to a s. 7 breach.” Conclusion 69 . I find Mr. Davis-Ball guilty of all charges. 70 .

The applications for a stay of proceedings are dismissed. Released: 1 November, 2021 Signed: “Justice Fergus ODonnell”