How long should Crown have to keep evidence?

When Innocence Project director Alan Young started unpacking evidence in the 1984 murder conviction of Amina Chaudhary, he discovered authorities had lost the photographic evidence a forensic expert had talked about during his testimony at the trial nearly 30 years ago.

The missing photos are a travesty, Young told the Ontario Court of Appeal last week, but he’s not dwelling on the past. If any other evidence goes missing, the court should hold the government liable through a constitutional declaration that requires it to preserve evidence until the accused dies, he argued on Wednesday. Current practices around the retention of evidence in criminal cases fall short, said Young, and a declaration in Chaudhary’s favour could have a significant impact on cases where someone alleges a wrongful conviction years later.

A lower court rejected Young’s bid for a similar declaration last year, concluding that since the loss of the photographs hadn’t harmed Chaudhary, she couldn’t ask for such a declaration based on a violation of her rights under s. 7 of the Charter of Rights and Freedoms.

But at the appeal court last week, Young said Superior Court Justice Michael Dambrot didn’t quite understand what he was asking for. Chaudhary isn’t claiming the loss of the images has already harmed her but that there’s “a reasonable apprehension of harm” in the future, he said.

Declaratory relief is appropriate for speculative harm, Young argued. “I need to demonstrate that there is a threat of the violation of her rights. It’s a preventative measure,” he said.

Chaudhary “is not saying, ‘I want an apology for what happened,’” he added. “She’s saying, ‘I am worried about the future.’”

Years back, the court convicted Chaudhary of strangling an eight-year-old Toronto boy to death. The forensic expert at the time, Dr. Charles Smith, also referred to injuries to the boy’s head that he said were a result of blunt-force trauma. When Smith was describing the location of the bruise on the boy’s head, the judge interjected to ask if he was saying it was halfway back along the skull.

“Yes,” Smith replied. “We have photographs of that, which might be better than my description.”

Now that those photographs are missing, Chaudhary reasonably fears that the investigative file in her case has also disappeared, Young argued. “The failure to preserve impacts on her liberty.”

Court of Appeal justices Stephen Goudge and John Laskin questioned Young about what makes him believe the loss of evidence will cause a significant harm to Chaudhary.

Young was quick to admit there isn’t any way of being sure of that. “Your honour, we always draw inferences about the future based on the past,” he said.
The perceived harm is a “likelihood” and not necessarily a probability, Young added.

But in his view, the details of Chaudhary’s conviction raise eyebrows.

The court at the time found there was a motive, circumstantial and forensic evidence, and an admission by Chaudhary herself to conclude she had killed the boy.

Chaudhary was dating the boy’s uncle, Vijay Gupta, and the family didn’t approve of their relationship, according to the ruling. The court found she had killed the boy out of revenge. There were also red and white acrylic fibres in her car that matched what the boy was wearing the day he died. In addition, there was soil found on his body that experts said was a match to soil in the parking garage where Chaudhary parked her car.

“This was about soil and fibres,” Young told the court, describing the forensic issues as a “matching game.”

Police testified that during her arrest, Chaudhary said things that indicated she had killed the boy. Gupta also told the court Chaudhary admitted to the crime and asked him what he was going to do about it.

Since the conviction, the former chief coroner for Ontario has ordered reviews of 45 pediatric autopsies conducted by Smith in which the conclusion was either homicide or foul play. The review found 20 “questionable” conclusions of foul play, according to the Superior Court ruling.

Chaudhary’s case was among the 45 cases reviewed. But in January 2008, another expert, Dr. Christopher Milroy, concluded someone had in fact strangled the boy to death.

Dambrot found that despite the loss of the photographic evidence, Chaudhary didn’t demonstrate prejudice. “On the contrary, it seems plain that the autopsy photographs could not assist the applicant in demonstrating her innocence,” he wrote in Chaudhary v. Ontario (Attorney General) last year. He added that even if the photographs were available, they wouldn’t aid any other expert to make different findings.

“Dr. Milroy, whose evidence is relied on by the applicant on this issue, testified that even if he had the autopsy photographs of the bruise, he would not be able to contradict Dr. Smith’s statement that the blow the deceased sustained could, but would not necessarily have rendered the victim unconscious,” wrote Dambrot.

But for Young, the possibility of harm in the future is sufficient prejudice to require the declaration.

The attorney general of Ontario argued Chaudhary’s claim isn’t justiciable.

“As Dambrot J. concluded, the appellant’s claim is contrary to the constitutional standards that govern evidence retention. The Supreme Court and this honourable court have stated that the pretrial loss of potentially exculpatory evidence will not violate Charter s. 7 if the Crown provides an adequate explanation for the loss,” wrote Robert Charney, counsel for the attorney general.

“It cannot be correct that a convicted offender who has exhausted the appeal process is entitled to a higher standard of evidence retention than an accused person before trial.”

Chaudhary’s claim is also “moot in any event” because Dambrot said he wouldn’t have awarded the declaration even if there had been a Charter breach because current policies require the permanent retention of autopsy photographs, Charney suggested.

For his part, Young has narrowed down the scope of the requested declaration to require authorities to keep all evidence in homicide cases only.

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