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Ungovernable Incarcerated Complainants

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 Ungovernable Incarcerated Complainants




1.      Seizing and searching the Accused’s Computer

[259]      While the Accused has privacy interests relating to the information on his computer, he says that the police were in a position to obtain a Warrant and search it to confirm his story. Even assuming that they could do so, there was no reason to do so, nor is there anything to suggest that it would have assisted the Accused in his defence of the charges. Indeed, the defence retained one Del Michaud and he did download the information on the computer. The information he downloaded confirmed the time the Accused downloaded a movie but contradicted the evidence of the Accused as to what was downloaded. It is difficult to see how a search by the police would have been either necessary or beneficial.

2.      A towel and feathers on the bathroom floor

[260]      The videotape taken by Tyronne Brown when he attended the apartment with his mother on June 19, 2014 shows a towel, and some objects on the bathroom floor which may have been feathers. The Accused suggests that these would have confirmed his evidence that the Complainant ran into the bathroom where she remained for a few minutes.

[261]      First, I note that the Accused was able to adduce this evidence, thereby minimizing his argument about the negligent investigation.

[262]      Second, I am not satisfied that these items were in the bathroom at the time of the incident or immediately thereafter. There is nothing whatsoever to indicate that the Complainant was in possession of such items at any time nor is there any reason to believe she would have put them there even had she been in possession of them to begin with.

[263]      Further, the feathers (or whatever the objects may be) are not shown in a police photo of the bathroom taken within a few hours of the incident. It is possible that the photo does not depict the feathers because it does not cover the entirety of the bathroom floor, whereas the video seems to encompass more of it. Regardless, I do not believe that feathers were left behind on the bathroom floor by the Complainant as there is no evidence in this regard.

[264]      Finally, even if the items were there as a result of the Complainant being in the bathroom, I am not satisfied that it assists the defence in any way. I do not consider the possibility of the Complainant having been in the bathroom to be a material fact. It would not have affected my consideration of the credibility or reliability of either the Complainant or the Accused.

3.      Seizing the telephone

[265]      The Complainant testified that she had the phone and made the call to 911. The Accused said that he made the phone call and that she did not touch the phone. While I am satisfied that it was, in fact, the Complainant who made the call, I do believe that the telephone should have been seized. However, I am not satisfied that it should necessarily have been forensically tested, and nothing now turns on the failure by the police to seize it.

[266]      The #phone was on the floor in the front entry area when the police arrived. The telephone had blood smeared on it. The Complainant was the one who was bleeding. Conducting a fingerprint analysis of the telephone would undoubtedly yield nothing more than confirmation that she did handle the phone as evidenced by her blood on it. It would not be surprising to find the Accused’s prints on his own phone, as stated by Cst. Colleen Venne in her testimony.

4.      The Complainant’s bag

[267]      I do not believe there would have been any value to an analysis of the bag carried by the Complainant. The Accused says that she had taken some Kraft Dinner from him but her testimony, and that of the first daycare operator, confirmed that she had “noodles” with her that the daycare operator refused to cook for her.

5.      Fingerprinting the balcony and fridge and testing the hallway for DNA

[268]      Attempts were made to take fingerprints from the balcony but the surface was incompatible and no fingerprints were obtained or analyzed. There were no fingerprints taken of the fridge door. The Accused suggested that the police should test for DNA along the hallway where the Complainant said that he had dragged her. She had her clothes on at the time and there was no indication or suggestion that the police would have been successful, even if an attempt was made to look for evidence that might contain DNA. While she may have also been bleeding, it is far from certain that a thorough search of the hallway for DNA evidence would have been fruitful. It must also be noted that the hallway was undoubtedly used by many people every day, making a DNA search very difficult. A forensic test of every scrap of foreign substance found in a lengthy hallway traversed by many people every day would have been a large and painstaking process with little likelihood of providing probative information.

[269]      I am also satisfied that fingerprinting the surface of the fridge door handle would not have been fruitful nor relevant. Whether or not the Complainant touched the fridge door, it would not have impacted on my findings with respect to what happened.

6.      Evidence from a Medical Examiner

[270]      The Complainant said that the injuries to her eye were caused by the Accused slamming her head on the floor. The Accused admitted slamming her head on the floor at least once. The defence suggests that the police should have had a medical examiner confirm that story. There is no basis for this suggestion. The Complainant recounted how she was injured. She was examined by emergency medical technicians and a doctor. There is no doubt that she had suffered the injuries complained of. There is no basis to conclude that an expert is required to opine on how the injuries were caused. It is for the Court to determine the cause of the Complainant’s injuries.

7.      Blood stain pattern

[271]      The defence argues that the police should have had a blood stain pattern analyst attend at the scene as soon as possible to examine the blood stains and, in particular, those on the door and the doorknob leading out of the apartment.

[272]      The blood on the door and doorknob was seen by police officers who attended the scene a few minutes after the 911 call was made and photos were taken. The only person bleeding was the Complainant. There was blood on the doorknob and blood spattered on the door downwards from the area of the doorknob. There is nothing credible to suggest that it got on the door in any way other than from the Complainant attempting to turn the doorknob and open the door.

[273]      I am not satisfied that there would have been any value to an analyst examining the door at that time.

8.      Continuity of the knife, fork, shoes and socks

[274]      There was some evidence that the knife and fork were moved by Cst. Patrick Stevens as he was concerned about the safety of the officers present and the Complainant’s condition. He did return them to the locations he thought he had taken them from.

[275]      On arriving at the scene with her partner, Cst. Stevens, Cst. Lexy Kerr spoke with, and comforted, the Complainant who was sitting on the floor in the hallway. EMS had been called. The Complainant was not wearing shoes or socks and Cst. Kerr believed she would need them in order to walk to the ambulance. She retrieved them from their location on the couch in the living room but was later directed to return them as they were evidence.

[276]      I am satisfied that both Cst. Stevens and Cst. Kerr made errors in judgment by moving these items, but I am also satisfied that they returned them to as close to their original location as possible.

[277]      Nothing further was to be gained by again checking with Cst. Stevens and Cst. Kerr as to the continuity of the knife, fork, shoes and socks.

9.      Testing the crack pipe found by Ms. Roth

[278]      I have already discussed the crack pipe and have concluded that it was either planted in the apartment by Ms. Roth or was simply obtained from another source and turned over by her with her false statement that it was found in the apartment.

[279]      It is clear that there are continuity issues with respect to the pipe as Ms. Roth testified that she sent it to the Accused’s lawyer within a week of finding it on June 23, 2014 and yet it appears it was not received by the lawyer until December 12, 2014 or later. Further, it was not turned over to the Crown until April 28, 2015. According to Ms. Roth, it had been handled by both her and her son. In my view, it was unnecessary to test that crack pipe, as I do not believe that it ever belonged to the Complainant and it had been touched by at least two people before being handed over to the police 10 months after it was allegedly found.

[280]      I recognize that when the Complainant was cross-examined, she acknowledged that the crack pipe might have been hers. Importantly, however, she was confronted with the fact that it was found in the apartment, although it was not established to have been found there. It was also never shown to her. If it had been, it would have allowed for a definitive response. I am satisfied that she was sufficiently confused and simply provided a response that was non-committal. I do not believe that it was hers, nor that she had smoked crack to that point in time.

10.  The Police did not search for a black handled knife

[281]      The Complainant did mention a black handled knife and, while I believe she was confused at the time, a search for it would add nothing to a consideration of the credibility or reliability of either the Complainant or the Accused nor would it impact on my analysis of what transpired.

11.  Drug use by the Complainant

[282]      In correspondence to the Crown, counsel for the Accused asked for an investigation to be done into alleged drug use by the Complainant. There was no obligation on the Crown or the police to do so, nor would it have been appropriate in the circumstances. She was the Complainant. Neither the Crown nor the police are obliged to conduct a detailed investigation, or any investigation at all, into personal and private matters involving the Complainant. Contrary to defence suggestions, they did not have to seize any blood that she had given at the hospital in furtherance of an obligation they did not have.

#Ungovernable Lesson of the Day: When you been locked up Akon style, watch yourself! 

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We define Ungovernable like the dictionaries (we are amenable to follow when its appropriate to do so): "escape the control".