R. v. Newell, 2018 NLSC 94

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Newell , 2018 NL SC 94 Date : April 26, 201 8 Docket : 201701G6809 Her Majesty The Queen v. ROBERT NEWELL ______________________________________________________________________________ Before: Justice Alphonsus E. Faour Reasons for Judgment Given Orally ______________________________________________________________________________ Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 9, 10, 12 and 17, 2018 Date of Oral Judgment: April 26, 2018

Summary: The Accused was charged with Break and Enter into a business, as well as two counts of breaching promises to the Court arising from two incidents on July 30 and August 1, 2016. The Accused argued that the DNA evidence connecting him to the scene was not reliable and should not have been accepted as proof of identity. He argued that DNA evidence was circumstantial, and could not conclusively identify him as being present at the crime scene.

The Crown agreed that the evidence of his identity was circumstantial, but that it was inconsistent with any other reasonable conclusion but that he had committed the crime. The Court found that the break and enter offence had been made out. It was held that the evidence of identity based on the DNA analysis of biological substances left at the scene was inconsistent with any other rational explanation. The Accused was found guilty of break and enter, and the consequential charges of breach of recognizance and breach of probation.

Appearances: Jude W. Hall Appearing on behalf of the Crown Robert Newell Appearing on his own behalf Authorities Cited: CASES CONSIDERED: R. v. Khelawon, 2006 SCC 57; Dawe v. Wareham, 2008 NLTD 119; R. v. Thornhill (1989), (NL SC), 78 Nfld. & P.E.I.R. 355, 1989 CarswellNfld 195 (T.D.); R. v. Terciera, (ON CA), [1998] 38 O.R. (3d) 175,1998 CarswellOnt 390 (Ont. C.A.); R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, 1997 CarswellMan 392. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46.

REASONS FOR JUDGMENT Faour, J.: INTRODUCTION [1] The Accused was charged with three offences arising from a break and enter into the offices of Trico Ltd., on Austin Street inSt. John’s. The Indictment contains three counts, which alleged that the Accused: 1) On July 30, 2016, at St. John’s, in the Province of Newfoundland and Labrador, did break and enter the premises of TricoLimited, 2 Austin Street, and committed an offence therein, contrary to s. 348(1)(b)-348(1)(

e) of the Criminal Code, R.S.C. 1985, c. C-46. 2) On July 30, 2016, at St. John’s, failed to comply with a Probation Order dated November 6, 2014, contrary to s. 733.1(1)(a)of the Criminal Code. 3) On July 30, 2016, at St. John’s, failed to comply with a condition of a recognizance dated May 5, 2016, contrary to s.145(3)(

a) of the Criminal Code. [2] The Crown, with consent of the Accused, placed into evidence copies of a Recognizance Order and a Probation Order tosatisfy the requirements of counts 2 and 3. It would follow that if guilt was established on the first count, break and enter into TricoLimited, then the elements of the offences set out in counts two and three would also be established. Background Facts [3] On July 30, 2016, officers from the Royal Newfoundland Constabulary (RNC) were called to attend at the business offices ofTrico Ltd. on 2 Austin Street in St. John’s before 2:00 AM.

Officers testified that they first saw a glass door shattered, and it appearedsomeone had gained entry. They saw papers strewn on the floor, filing cabinets open and some files removed, and desk drawers openedwith their contents on the floor. Once the owner arrived, it was confirmed that it appeared nothing had been taken. [4] On arrival at the scene, police engaged the services of a police tracker dog to attempt to find a suspect.

While the dogappeared to have found a trail, it led nowhere, and no suspect was found. [5] Police carried out the normal initial investigatory routines, including checking for fingerprints, footprints, and takingphotographs of the scene. Nothing further was found that morning.

[ 6 ] Two days later, on Monday, August 1, 2016, police received a call from the owner of Trico Ltd., that on arrival at work that morning, some other evidence was found. When Cst. Stacy Sweetland arrived she was directed by staff to areas around the receptionist’s desk where they said they found dark red stains which could have been blood. Stains were found on the floor behind the desk, on a document tray which was on the desk, and some papers which were also on the floor. Cst.

Stacey Sweetland took swabs of the three stains, labelled them, and later secured them at RNC headquarters. [ 7 ] The photographs taken of the scene on the early morning of July 30, 2016, show papers strewn on the floor behind the receptionist’s desk. They also show a wooden document tray adjacent to the receptionist’s computer which was full of papers. Photographs taken of the same area behind the desk on Monday, August 1, 2016, show that the papers on the floor and those in the document tray had been removed. Ms.

Lisa Badcock, the owner of the business, testified that she left the office at around 5 AM on July 30, without having tidied the receptionist’s area. [ 8 ] The next time Ms. Badcock was in the office was Monday, August 1, 2016. She testified that she arrived at the office around 6:45 AM. She tidied up the office as best she could, and took the papers from the floor and from the document tray in the receptionist’s area. Ms. Badcock said she noticed what she thought was blood on some of the documents she removed from the floor. She gave these documents to the police. [ 9 ] When the receptionist, Ms.

Peggy Rice, arrived shortly afterwards, Ms. Badcock told her what had happened. Ms. Rice testified that Ms. Badcock appeared to have straightened up her desk before she arrived, but she still had to organize things to her own preferences. As she did, Ms. Rice noticed what she thought were drops of blood on the floor, and then saw the blood on the wooden document tray. She said she showed the police where she saw the blood. She also testified that on Friday, July 29, 2016, before she left the office for the day, she put her desk in order for the weekend.

She said there was no blood present on Friday where she found it on Monday. [ 10 ] Cst. Lisa Fitzgerald, who had been at the scene on the early morning of July 30, 2018, was assigned as investigating officer on this file. In September 2016, she was briefed by Cst. Sweetland about the blood swabs she had taken from the scene. Cst. Fitzgerald requested the laboratory operated by the Royal Canadian Mounted Police (RCMP) in Ottawa for approval to send samples.

She testified that approval was received from the lab on October 18, 2016 to send one of the swabs to the lab for DNA analysis. [ 11 ] She received a report from the lab dated November 8, 2016. Thomas Suzanski, a forensic DNA specialist, prepared that report. By the time of trial, Mr. Suzanski had died. The Crown sought to have his report admitted through one of his co-workers, Ms. Susan Borys, another forensic DNA specialist. I qualified her as an expert to give opinion evidence on DNA analysis of biological substances. [ 12 ] The Crown argued that the report could be admitted by Ms.

Borys as a principled exception to the hearsay rule. In R. v. Khelawon , 2006 SCC 57 , the Supreme Court of Canada outlined that the criteria of reliability and necessity may be applied to determine whether the normal exclusionary rule should apply. The Court described the exception, at paragraph 49: 49 The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society's interest in getting at the truth.

Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. [ 13 ] Normally, a report prepared by an expert should be presented by that expert.

However, in this case, that was not possible. The Crown submitted that the report should be admitted under this exception, and that the indicia of necessity and reliability are met in this case. I was referred to the decision of Justice Russell of this Court in Dawe v. Wareham , 2008 NLTD 119 . In that case the issue was whether the report of a physician who had died should be admitted into evidence. Justice Russell found that the criterion of necessity was met by the fact that the medical practitioner was deceased. [ 14 ] He then addressed the criterion of reliability.

He noted that the reliability of the report was sufficiently ensured by the qualifications and expertise of the author. He also noted that its accuracy could be tested through cross-examination of other medical practitioners. [ 15 ] He also raised the issue of the standard by which its reliability should be tested. He made a distinction between threshold reliability, which is the test for admissibility of the evidence, and ultimate reliability, which is the final determination of the trier of fact and must be considered having regard to all of the evidence.

He said, at paragraphs 161-162: 161 As noted in Khelawon , it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre- determined at the threshold stage. 162 In this ruling I am dealing with threshold reliability and not ultimate reliability. The onus is on the Plaintiff to adduce evidence to establish threshold reliability on the balance of probabilities.

Here I am satisfied on the balance of probabilities that the hearsay statements exhibit sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth and accuracy of the statements. I am also satisfied that the facts surrounding these statements offer sufficient circumstantial guarantees of truthworthiness to compensate for any dangers raised by their admission. [ 16 ] He admitted the documents, but noted that the weight to be attached was still to be determined. [ 17 ] In this case, similar circumstances arise. The author of the report is dead.

It was that author who tested the original sample presented by the RNC officer and produced a report. I can also conclude that retesting would be difficult if not impossible some 20 months later, and would undoubtedly delay the trial. [ 18 ] There is one additional factor which was not present in the Dawe case. There, the report of the deceased physician had to stand

on its own, because no one else was involved in its making. In this case, the RCMP laboratory has procedures and protocols in place toensure that others are involved in the testing and analysis process. Ms. Borys testified that the process of peer review meant that she wasdirectly involved in the examination and testing of the sample, and review of the findings in the report. She also has expertise which issimilar to that of the author of the report. [19] On this basis I was satisfied that it was appropriate to admit the report of Mr. Suzanski through Ms. Borys.

She testified byvideo from the laboratory in Ottawa, and was able to be cross-examined by Mr. Newell. [20] Ms. Borys then took us through the report. It concluded that the sample tested yielded a satisfactory DNA typing profile. Thereport determined that the profile was of an unknown individual and designated the individual as “Male 1”. It was also of a singleindividual, and was not intermingled with the DNA of any other person. The profile was entered into the National DNA Data Bank ofCanada (“National DNA Data Bank”). [21] Cst.

Fitzgerald testified that she received a further report from the RCMP lab which indicated that the National DNA DataBank had yielded a match. It was identified as Robert Shawn Newell, date of birth 1983-06-24. On the strength of that report, Cst.Andrea Bishop, an investigator on this case, prepared an Information to Obtain a Warrant to take biological material from the Accusedfor the purposes of DNA testing. The Warrant was issued and executed, and the sample of blood taken from Mr.

Newell, the Accused,was sent to the RCMP lab for further testing to determine whether it was a match with “Male 1”, identified from the sample taken fromthe crime scene. [22] That sample was analyzed by Laurie Karchewski, a forensic specialist at the RCMP laboratory. She prepared a report datedJuly 11, 2017, and forwarded it to Cst. Fitzgerald. Unfortunately, Ms. Karchewski was unavailable to testify, as she was off work due tomedical issues. The Crown sought to have her report admitted through Ms. Laurie Bradford, who also testified via video from Ottawa.

Using Khelawon as authority, it was argued that having this report admitted in the same manner as the previous one could constitute aprincipled exception to the hearsay rule, and override the normal exclusionary rule. Ms. Bradford was in the same position vis a vis Ms.Karchewski as Ms. Borys was in relation to Mr. Suzanski. She is a forensic specialist at the RCMP Laboratory, and has significantexperience in the DNA typing process. She was qualified as a specialist by the RCMP lab almost two years ago, and had worked some115 cases since that time.

Prior to being qualified at the lab, she had extensive experience in related fields. This was the first time shewas required to come to Court to testify. As a first step, and following agreement by Mr. Newell, I qualified her to give expert opinionevidence on DNA analysis of biological substances. [23] As for her ability to satisfy the criteria set out in Khelawon and Dawe, Ms. Bradford testified that she was involved in peerreview of Ms. Karchewski’s report. She was familiar with the testing and conclusions, and reviewed the report at the time it wasprepared. Similar to Ms.

Borys, I was satisfied that the criteria of necessity and reliability were met in this case, and permitted the Crownto enter the report of Ms. Karchewski through Ms. Bradford. [24] Ms. Bradford noted she was aware of the Crime Scene Report, being what she called Report # 1, prepared by Mr. Suzanski. She analyzed the sample received from the Accused under the warrant, and obtained a DNA profile suitable for matching. Sheconcluded that the sample from the Accused matched the profile on the swab taken from the wooden document tray.

Her report said thatit “... matches that of the known sample ...”. [25] She went on to state that the probability of there being another match in the Canadian population was 1 in 1.5 quintillion. Oncross-examination, Mr. Newell questioned her about the various elements of the DNA matching. She indicated that of some 3,000regions, the DNA analysis undertaken by her laboratory examined 15. She said that the science behind DNA typing has focused on thesmall number of regions that are discriminatory among individuals. Most of the human genome, about 99.99%, is identical amongindividuals.

Validation of samples for the purposes of profiling is only for the 0.01%, or 15 regions, which provides a basis formatching. [26] When asked directly whether the Accused was matched to the crime scene, she would only say that it was a match with thepossibility of another person having the same profile being 1 in 1.5 quintillion. Simple mathematics would disclose that there areinsufficient people on the planet to satisfy the probability that there would be another individual with the same DNA profile. ANALYSIS [27] Mr.

Newell’s arguments centred on the inconclusive nature of DNA evidence, and that such evidence, being circumstantial,would not identify him as being at the crime scene beyond a reasonable doubt. He submitted the case of R. v. Thornhill (1989), (NL SC), 78 Nfld. & P.E.I.R. 355, 1989 CarswellNfld 195 (T.D.), where Justice Easton of this Court opined on thequestion of circumstantial evidence. This was a case of illegal possession of moose meat in contravention of the legislation governingwildlife.

He referred to Hodges case at paragraph 13: 13 The remaining ground of appeal relates to the trial judge's finding that the appellant was in possession of illegally obtained meat.The respondent submits that the case against the appellant is solely based upon circumstantial evidence and that the trial judge correctlyapplied the law as set out in Hodges' case (1938), 2 Lewin, 277, 168 E.R. where the rule is stated as follows: The rule must be satisfied not only that those circumstances were consistent with his having committed the act, they must also besatisfied that the facts were such as to be inconsistent with any other rational conclusion that the prisoner was the guilty person. [28] The Crown agrees that DNA evidence is not direct evidence, and therefore provides circumstantial evidence supporting theAccused’s guilt.

It says, however, that the reliability of the DNA science provides a conclusion that is inconsistent with any otherrational conclusion. [29] The Accused focused on two aspects of the DNA evidence which he said questioned its reliability. First, the manner in which

it was found; and second, the science of DNA profiling itself. [30] As for the first, the Accused argued that Cst. Sweetland could not identify the staff member of Trico Limited who pointed outwhere the traces of blood were found. He pointed out that she could not remember anything specific about how she found the blood, nordid she have any notes which recorded the steps she took before obtaining the blood samples. [31] I accept his argument that no witness could conclusively indicate how the blood was deposited at the scene.

However, themanner in which the blood was discovered and recovered is not essential to the Crown’s case. The only critical fact about which therewas no dispute was that blood was found at the scene. There was evidence, from Ms. Rice’s testimony, that there was no blood to beseen about her desk on the previous working day. She testified that no members of the public would have had access at any time to thearea behind her desk. Both she and Ms. Badcock testified that they had never seen Robert Newell at the premises before and that theydid not know him.

That creates a strong inference that the blood was deposited during the weekend. The only rational conclusion is thatit was deposited during the break-in. [32] The second aspect of the DNA evidence that was challenged by Mr. Newell was the conclusions that were to be drawn fromthe DNA science. He focused on the reluctance of Ms. Bradford to conclusively identify him as having been present at the scene. Basedon this, he said there was no evidence which identified conclusively that he was at the scene on the weekend. He cited R. v. Terciera, (ON CA), [1998] 38 O.R. (3d) 175, 1998 CarswellOnt 390 (Ont. C.A.).

In that case there was extensive discussion ofwhat was then, the “novel science of DNA typing”. At paragraph 54 the Court noted that the DNA testing: ... is but one piece of circumstantial evidence which taken alone may prove very little ...

It gains greater significance, however, whenconsidered in the light of the appellant’s progression of statements as to his limited access to the crime scene as evidence ofconsciousness of guilty [sic] and the statement’s [sic] of Crown witnesses, among other factors present at the trial. [33] The Court went on to accept that the science was acceptable as a basis for admissibility of the opinion evidence.

As for itsvalue in a determination of guilt or innocence, the Court acknowledged that the trial judge must consider the expert evidence in thecontext of all the other evidence. [34] This case was of limited value in supporting the Accused’s contention that since it could not conclusively place him at thecrime scene, it was an unreliable basis on which to convict. It dealt with the question of the value of DNA evidence at a time when itwas in the realm of novel science. The samples in the Terciera case were taken in 1991.

By the time the appeal was heard, 1998, itsreliability had been accepted in many cases across the country. The Court noted, at paragraph 18: 18 As it turns out, the precedential value of the DNA testing conducted in the present case is limited because it is conceded by allcounsel that whatever its strengths and weaknesses in 1990-91, the techniques employed in this case are no longer in use. [35] The Accused invited me to consider that, first, there was no evidence as to how or when the blood came to be at the scene, orsecond, that the DNA evidence of Ms. Bradford was not conclusive as to a match with his DNA.

He argued that this raised a reasonabledoubt as to his guilt. The Crown argued that the reliability of the DNA evidence satisfied its burden, and even though the case relied oncircumstantial evidence, there was no other rational conclusion than the Accused was there. [36] I have to consider all of the evidence. There was testimony of both the police and Ms. Badcock that there was a break-in at thepremises. Their viva voce testimony, as well as the police photographs satisfy this element of the offence. [37] Ms. Rice said her desk was in order before she left Friday afternoon July 29, 2016.

She also testified that she did not see anyblood, or stains which might have looked like blood at that time. [38] While neither the police nor Ms. Badcock noticed the blood around Ms. Rice’s desk when they were at the premises on theearly morning of July 30, 2016, it was understandable that this could have been overlooked at that time. There were papers strewnaround the receptionist’s desk, and the tidying up did not take place until Monday morning. [39] On Monday, when Ms. Badcock and Ms. Rice arrived at work and began cleaning up the site, Ms.

Rice noticed the blood stainson the floor and in the wooden document tray. She also said there was no way they could have been there before the weekend, as shewould have noticed them. Having worked behind that desk for many years, she had an intimate knowledge of her desk and the areaaround it. [40] Neither Ms. Rice nor Ms. Badcock had ever seen Mr. Newell at the premises. In any event, Ms. Rice said even if he had beenthere doing legitimate business, that no customer would have a reason to be behind her desk.

She was convinced that the blood wouldhave been deposited there associated with the break-in. [41] The DNA analysis initially linked the sample taken from the crime scene to an unknown male. Further matching linked thatsample with a record from the National DNA Data Bank. That record identified an individual with the same name and date of birth asthe Accused. [42] On the strength of this evidence, a warrant was obtained to get a sample from the Accused. That sample was matched with thesample of the unknown male from the crime scene. Ms.

Bradford said that it was a very rare sample, with the possibility of anotherindividual having the same DNA profile being very remote. She used the figures 1 in 1.5 quintillion. [43] Did this evidence meet the burden imposed on the Crown to prove guilt “beyond a reasonable doubt”? In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, 1997 CarswellMan 392, the Supreme Court of Canada considered the meaning of this phrase. In suggesting what might be said to a jury considering this question, Justice Cory said, at paragraph 36: 36 Perhaps a brief

summary of what the definition should and should not contain may be helpful. It should be explained that:

the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt … [ 44 ] The only evidence connecting the Accused with the crime scene is the DNA evidence derived from the blood samples.

The evidence satisfies me that the blood was left at the crime scene in association with the break-in. Is there any reasonable doubt that this ties the Accused to the commission of the crime? The DNA analyst could not say with certainty that there was a perfect match. But in declining to confirm the match, she gave enormous odds of the sample being from another individual. While it may not provide absolute certainty, the Crown is not required to meet the test of absolute certainty.

One in 1.5 quintillion is such a remote possibility that it convinces me there is no reasonable doubt that the blood sample is from the Accused. Together with the other evidence proffered by the Crown, I am satisfied that the Crown has proven beyond a reasonable doubt that the Accused committed the break-in at Trico Ltd. There is no other rational conclusion that can be drawn from the evidence presented. [ 45 ] The first count on the Indictment is made under s. 348(1) (

b) of the Criminal Code . That provision involves break and enter into a premises and committing an offence. We have evidence that at least the offence of damage to property and mischief was committed. There is no evidence of theft. S. 348(1) (

a) is an included offence, and requires intent to commit an indictable offence. [ 46 ] The Crown relies on s. 348(2)(

a) which raises a presumption that where there is proof that an individual committed break and entry, “... in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein ...”. This presumption, together with the mischief and damage to the property of Trico Ltd., leads me to the conclusion that the Crown has made out the elements of this offence, and therefore the Accused, Mr.

Robert Newell, is guilty of count 1 on the Indictment. [ 47 ] As for counts 2 and 3, conviction is more or less automatic on a finding of guilt on count one. Count 2 alleges breach of a Probation Order dated November 6, 2014, which contained a condition that Mr. Newell keep the peace and be of good behaviour. Count 3 alleges Breach of a Recognizance dated May 5, 2016, which contained a condition that he keep the peace and be of good behaviour. A finding of guilt involving count 1 provides the basis for a conviction and a finding of guilt on counts 2 and 3.

SUMMARY AND CONCLUSION [ 48 ] In

summary, the Crown has satisfied me that it has presented evidence to prove beyond a reasonable doubt that the Accused is guilty of break and enter into the premises of Trico Ltd. and therefore a conviction is entered on count 1 on the Indictment. Since such a finding means that there has been a breach of both the Probation Order and the Recognizance applicable to the Accused, convictions are entered on counts 2 and 3. [ 49 ] Convictions having been entered on the three counts on the Indictment, the Accused is remanded in custody pending submissions on sentence. _____________________________ Alphonsus E. Faour Justice