W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Laskin, Gillese and Juriansz JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Grant Sheng
Respondent
Kim Crosbie and John McInnes, for the appellant
David Butt, for the respondent
Heard: November 5, 2009
On appeal from the order staying the proceedings by Justice John F. Hamilton of the Superior Court of Justice, sitting without a jury, dated January 12, 2007.
A. INTRODUCTION
1After finding the respondent, Grant Sheng, guilty of sexual assault and sexual touching, the trial judge stayed the proceedings against him, holding that lost records had prejudiced his ability to make full answer and defence, and therefore deprived him of a fair trial. This Crown appeal raises two main issues: first, whether the trial judge erred in granting a stay; and second, if he did, whether the appropriate remedy is to reinstate the guilty verdicts or order a new trial, or as the respondent contends, to stay further proceedings because of the Crown’s delay in perfecting its appeal.
2J.H. and T.H. are sisters. They allege that between 1988 and 1994, when they were between eight and 12 years old, the respondent, who was their mother’s boyfriend at the time, sexually abused them. In 1994 the complainants disclosed the abuse to their mother and a teacher. The police and the Children’s Aid Society (CAS) investigated the allegations. No charges were laid.
3Several months later, the complainants’ father reported the allegations to the police. Again, the CAS and the police investigated. Again, no charges were laid.
4Over 10 years later, in the spring of 2005, the older complainant, J.H., now an adult, met the respondent at a restaurant. She surreptitiously taped their conversation in which she raised the alleged abuse. J.H. then took the tape to the police.
5This time the respondent was charged with two counts of sexual assault and two counts of sexual touching. Critical to this appeal, in the period leading up to the charges, audio recordings and some notes of the investigations that took place in 1994 had been lost or destroyed.
6The respondent was tried before Hamilton J. He did not testify and did not call a defence. In December 2006, the trial judge delivered lengthy reasons for judgment in which he found the respondent guilty of all charges. However, one month later, the trial judge stayed the proceedings. He concluded that the respondent “was prejudiced by the loss of the evidence and was prevented from making full answer and defence”, and that “[t]here is no way of redressing the infringement of the accused’s right other than ordering a stay of the proceedings.”
7On its appeal, the Crown makes three submissions. First, it submits that the trial judge erred by finding that the audiotapes had been lost because of the Crown’s unacceptable negligence. Second, it submits that the trial judge erred by finding that the respondent was materially prejudiced by the lost records. Third, it submits that the trial judge erred by finding that this was one of those rare cases warranting a stay. The Crown asks to set aside the stay and reinstate the guilty verdicts.
8The respondent asks that the appeal be dismissed. Alternatively, the respondent asks to stay any further proceedings against him on the ground that the Crown took an unacceptably long time – 18 months beyond the date provided for in our Criminal Appeal Rules – to perfect its appeal.
9For the reasons that follow, I agree with the Crown that the trial judge erred in granting a stay. And I do not agree with the respondent that a dismissal of the appeal or a further stay is warranted because of the delay in perfecting the appeal. However, in my view, the appropriate and fair remedy is not to reinstate the guilty verdicts but to order a new trial. Although the trial judge was correct to assess the merits of the case before considering the stay application, his decisions were then out of sequence. Having concluded that the respondent was materially prejudiced in his defence by the lost records, the trial judge should not have made findings of guilt; he should simply have granted a stay. As I would set aside the stay, I would order a new trial.
B. THE ALLEGATIONS OF SEXUAL ABUSE
10The respondent was a friend of the complainants’ parents, Joseph H. and Wendy T. The parents separated in 1989. The two sisters lived with their mother, first in a one bedroom apartment and then in a townhouse. After the separation, Ms. T. and the respondent developed “a more personal relationship”. Although the respondent had his own home, he stayed overnight with Ms. T. and the children approximately twice a week.
(a) The allegations of sexual abuse against J.H.
11When the trial took place in 2006, J.H. was 24 years old. She testified that the respondent sexually assaulted her from the time she was in grade three until the time she was in grade six. She testified about numerous incidents of sexual touching, over 500 according to her preliminary inquiry evidence, about one incident of digital penetration, and about one incident when the respondent put his penis on her mouth.
12In grade seven, when she was 12 years old, J.H. went to live with her father. Soon after, Ms. T. and the respondent broke up. However, he continued to see the family from time to time, and assisted the complainants financially, including co-signing for their student loans.
13When J.H. was in second year of university, she needed help “making rent”. She called the respondent and he gave her some money. Later that year, she met the respondent at a restaurant where she taped their conversation. The tape prompted the police to reopen the investigation and charge the respondent.
14In evaluating J.H.’s trial testimony, the trial judge took into account her delayed disclosure and some illogical comments that she had made to the CAS interviewers when she was a child. He nonetheless found that her evidence that the respondent “molested her as a young girl” was “credible and reliable”.
(b) The allegations of sexual abuse against T.H.
15T.H. was 22 years old when she testified. She also gave evidence that the respondent sexually touched her many times, often after pulling down her pants when she was sleeping.
16When she was 10 years old, T.H. decided that she could not “take it anymore” and that she had to tell her mother. She told her mother that the respondent was “touching me”. Her mother “freaked out” on her and yelled at her, but did not reassure her.
17The trial judge also found that T.H.’s evidence was credible and reliable.
C. THE 1994 INTERVIEWS
18After T.H. told her mother that the respondent was touching her, J.H. spoke to a friend, who encouraged her to talk to a teacher. J.H. did so. She talked to Nancy Steele. Ms. Steele then reported the matter to her school principal and to the principal of T.H’s school. The two principals called the CAS.
(a) The CAS interviews: February 1994
19Pamela Pasquill, a CAS employee, interviewed J.H. without a police officer present. J.H. has virtually no memory of the interview. She did, however, recall being very embarrassed, afraid of “speaking up”, and afraid of having to testify in court.
20T.H. was interviewed by Ms. Pasquill and Officer Shulga. T.H. remembers saying that it was okay to tape the conversation. She said that she was asked repeatedly whether she was sure the respondent had touched her or whether she had dreamt it. She took “the easier way out” and said that she may have been dreaming. She felt that by doing so she was saving her mother from “going crazy”.
21After these interviews, the police decided not to lay charges against the respondent.
(b) The CAS interviews: October 1994
22In October 1994, Mr. H. took his daughters to the police station to report the allegations against the respondent. A CAS employee, Edward Laba, and a police officer, Norman Brinn, interviewed J.H. and T.H. They also interviewed Ms. T. and the respondent.
23J.H. was still “extremely frightened” and did not fully disclose that the respondent was touching her and her sister. T.H. was uncomfortable talking to the two men. She told them that the respondent had touched her but did not give any details of what had occurred. Ms. T. remembered little of her interview although she recalls being “really shocked” by some of her daughters’ allegations.
24Although neither J.H. nor T.H. recanted their allegations, Mr. Laba and Office Brinn closed the file. In their view, the girls’ explanation was “unclear and inconsistent” and was “marred by anger at the respondent”, while the respondent’s explanation seemed “logical and sincere”.
D. THE 1994 INTERVIEW MATERIAL: WHAT WAS DISCLOSED AND WHAT WAS LOST
(a) The February 1994 interviews
25The CAS disclosed all the material in its possession. This included Ms. Pasquill’s point form notes from her interviews with J.H. and T.H. Any notes Officer Shulga took of the interview with T.H. are missing. The CAS did not have audiotapes of either interview. Ms. Pasquill’s notes do not say whether either interview was taped. But CAS’s practice was to allow the police to maintain possession of any tapes.
(b) The October 1994 interviews
26The interviews of J.H. and T.H. were audiotaped. Mr. Laba, the CAS employee, also took notes of the interviews. His practice was to record all the “pertinent” and “salient” features of what was said. Using the audiotape, his notes and the CAS’s records and notes from the February 1994 investigation, Mr. Laba prepared an extensive written report summarizing the interviews. This report was disclosed to the defence. However, at the time of trial Mr. Laba did not have his interview notes, and he did not know where they were. The audiotapes were kept by the police.
27Officer Brinn also took notes of the interviews but he testified at trial that his notebooks for the relevant period were missing. Although he thoroughly searched for them, he could not find them. He said that he did not destroy his notebooks. He explained that they may have been destroyed after seven years in accordance with department policy at the time, though he had no direct knowledge that occurred.
28Audiotapes of interviews were kept in a filing cabinet in an area in the office beside Officer Brinn’s desk. When a case had concluded, or, as in the present matter, no action was taken, the audiotapes were placed in a large bin and shipped to a facility where they were erased.
29In his reasons granting a stay, the trial judge noted that the by-law in effect in 1994 governing record retentions for the Toronto Police Service stipulated that notebooks had to be retained for seven years and non-active audiotaped interviews had to be retained for one year.
E. DID THE TRIAL JUDGE ERR IN GRANTING A STAY?
(a) The legal framework
30The Crown acknowledges that the lost audiotapes and notes would have been relevant to the accused’s defence. In a case that turned on credibility, they likely would have been useful for cross-examining the complainants. Therefore, if they were in the Crown’s possession or control at the time of trial, the Crown would have had a duty to produce them under the disclosure standards in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.
31An accused’s right to disclosure of material that meets the Stinchcombe standard is a component of an accused’s right to make full answer and defence. In turn, an accused’s right to make full answer and defence is a principle of fundamental justice in s. 7 of the Charter. Therefore, a breach of the Crown’s duty of disclosure is a breach of an accused’s constitutional rights under s. 7.
32The Crown’s duty to disclose relevant evidence includes the obligation to preserve relevant evidence. However, as Sopinka J. noted in his majority judgment in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, “despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost.” The loss or destruction of relevant evidence that was once in the Crown’s possession or control thus does not automatically equate to a breach of the Crown’s disclosure obligation. In La, Sopinka J. sets out the legal framework for analyzing when lost or destroyed evidence gives rise to a breach of s. 7 of the Charter and when it justifies a stay of proceedings.
33The starting point is the Crown’s obligation to explain why the evidence was lost. That obligation flows from the Crown’s duty to preserve relevant evidence. Sopinka J. discusses two classes of cases: cases where the Crown’s explanation is unsatisfactory or the Crown gives no explanation at all, and cases where the Crown’s explanation is satisfactory.
34Where the Crown gives no explanation or where the Crown’s explanation shows that the evidence has been lost or destroyed because of the Crown’s “unacceptable negligence”, then the Crown has failed to meet its disclosure obligation. It has breached s. 7 of the Charter. Whether the breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actual prejudice caused by the loss or destruction of the evidence.
35Where the Crown satisfactorily explains the loss or destruction of the evidence, it has met its disclosure obligation. Section 7 of the Charter has not been breached. Still, “in extraordinary circumstances” the accused may be entitled to a stay if the accused can show that the lost or destroyed evidence is “so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial.”
36In the present case the trial judge found that the audiotapes were lost because of the Crown’s unacceptable negligence. And he found that the respondent was materially prejudiced by the loss of the audio tapes and the notes. He was thus prevented from making full answer and defence and entitled to a stay. I will examine these two findings.
(b) Were the audiotapes lost because of the Crown’s unacceptable negligence?
37The trial judge distinguished between the notes and the audiotapes. After citing police policy at the time that officers’ notes be kept for seven years and audiotapes for one year, he found that “there was no unacceptable negligence in the destructions of these notes.” Yet, he found that “there was negligent handling of the audiotapes”, though no deliberate intention to destroy them. He elaborated:
P.C. Brinn also testified under cross-examination that the audiotapes were stored in a file cabinet by his desk and that likely after one year or so they would have been discarded. Storage of evidence and the eventual destruction of evidence in this manner indicates a laissez faire attitude which is unacceptable for the court.
38I agree with the Crown that the trial judge erred in this finding. At para. 21 of La, Sopinka J. discussed the considerations bearing on whether the Crown has satisfactorily explained the loss or destruction of evidence:
In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.
39In this case, the Crown explained that in accordance with its practice at the time the audiotapes were stored in a locked drawer in a filing cabinet. I do not find this practice to be unacceptably negligent. It does not differ in substance from the practice of storing officers’ notebooks in the police division’s basement, which the trial judge found not to be unacceptably negligent – a finding I accept. Indeed, the trial judge offered no reason for the distinction he drew, and I see no basis for that distinction.
40Moreover, by the end of 1994, the police had concluded that the respondent would not be charged. There was no prospect that the investigation would be reopened years later. It is a fair inference that the officers reasonably thought that the audiotapes would not be needed in the future. To repeat what Sopinka J. said in La, “[t]he police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future.”
41Finally, the audiotapes were likely erased after a year in accordance with the police policy at the time.
42For these reasons I conclude that the Crown has satisfactorily explained the loss of the audiotapes. Their loss or erasure was not caused by “unacceptable negligence”. Accordingly, the Crown did not breach its duty of disclosure under s. 7 of the Charter.
(c) Was the loss of the notes and audiotapes so prejudicial to the respondent that he was entitled to a stay?
43In its second and third submissions, the Crown contends that the trial judge erred in finding that the loss of the notes and the audiotapes materially prejudiced the respondent, and thus justified a stay of proceedings.
44A stay is granted rarely. It is a remedy of last resort that must meet the “clearest of cases” standard. It is an exceptional remedy because its effect is to deprive society of an adjudication on the merits.
45Was the trial judge’s finding that the lost evidence was so prejudicial that it could only be remedied by a stay a reasonable finding? The answer to that question turns on the extent of the prejudice to the respondent from the loss of the evidence, and the availability of other remedies short of a stay to address any prejudice.
46When evidence is lost, assessing prejudice is invariably problematic and, to some degree, speculative. However, the respondent was not entitled to a stay merely because he was deprived of relevant evidence. To justify a stay the respondent had to show that the lost evidence prejudiced him in a substantial or material way. The trial judge concluded that the lost evidence would assist the respondent in a material way:
There is an air of reality to the claim that the lost evidence would assist the accused in a material way. The accused was prejudiced by the loss of the evidence and was prevented from making full answer and defence.
47I agree that the lost evidence could have assisted the respondent in attacking the credibility of the complainants. However, I do not agree that the trial judge’s conclusion justifies a stay because, in reaching that conclusion, he does not address the impact of the lost evidence in the light of other evidence available to the defence to challenge the credibility of J.H. and T.H. In La, Sopinka J. wrote that the availability of other evidence to attack a complainant’s credibility is a critical consideration in assessing the degree of prejudice from lost evidence.
48In this case, records available from the two 1994 investigations, records from 2005-2006 when the investigation was reopened and charges were laid, and information from the complainants’ own evidence substantially diminished any prejudice to the respondent from the lost evidence, and cumulatively rendered a stay unreasonable.
49Evidence was lost from the February 1994 investigation and the October 1994 investigation. From the February investigation, any notes that Officer Shulga took of his and Ms. Pasquill’s interview of T.H. are missing. But Ms. Pasquill’s notes, both of that interview and of her interview of J.H., were produced. Moreover, there is no firm evidence that either interview was audiotaped. Even if the interviews were audiotaped and the audiotapes were later lost or erased, Ms. Pasquill’s notes materially lessened any prejudice to the respondent from the evidence lost from that investigation.
50From the October 1994 investigation, the audiotapes of the interviews are missing and the interview notes of Mr. Laba and Officer Brinn are either missing or have been destroyed. But Mr. Laba’s extensive written report was available and was produced to the defence. That report summarized the entire investigation he and Officer Brinn conducted, included “pertinent” and “salient features” of what was said, and even referred to other information the CAS had collected. Again, this report went some distance in reducing the prejudicial impact of the evidence lost from the October 1994 investigation. Both Ms. Pasquill’s notes of the February 1994 investigation and Mr. Laba’s report of the October 1994 investigation could be used to challenge the credibility and reliability of the complainants’ evidence.
51Also, the defence had available to it a good deal of material from the time the investigation was reopened in 2005 with which to cross-examine the complainants. This material included two lengthy videotaped police interviews of J.H., a lengthy videotaped interview of T.H., J.H.’s and T.H.’s preliminary inquiry evidence, J.H.’s surreptitiously made audiotape of her conversation with the respondent at the restaurant, and a letter J.H. wrote to the respondent about what she said he had done to her. This additional material, though admittedly not contemporaneous with the 1994 investigations, still provided ample fodder for cross-examination.
52Finally, the complainants themselves were subjected to an extensive and probing cross-examination in which they admitted to numerous inconsistencies and lies to the CAS, to the police and in their disclosure generally. And, as neither J.H. nor T.H. remembered very much about what they said to the CAS and the police during the 1994 investigations, at best the lost evidence from those investigations would have permitted the defence to bring out a few more lies and a few more inconsistencies in the complainants’ evidence. Given what the defence had available to it, the lost evidence was not so prejudicial to the respondent’s defence that it warranted a stay.
53I end this section of my reasons by noting that the lost evidence may have merited a remedy short of a stay. However, the trial judge did not consider at all whether another remedy – for example, the exclusion of evidence – would have redressed any prejudice from the lost evidence. For nor did the trial judge take into account the lost evidence in his assessment of the complainants’ credibility and reliability. Instead, in finding their evidence both credible and reliable in his reasons for conviction, the trial judge does not even mention the lost evidence.
54For the reasons I have discussed, I would set aside the stay. That leaves the question of the appropriate remedy.
F. WHAT IS THE APPROPRIATE REMEDY?
55Assuming the court sets aside the stay, the parties have conflicting positions on the appropriate remedy. The respondent says that we should still dismiss the appeal, or reinstate a stay because of the Crown’s delay in perfecting the appeal. The Crown says that we should reinstate the guilty verdicts and remit the case to the trial court for sentencing. I would not adopt either party’s position. Instead, I would order a new trial.
(a) The Crown’s delay in perfecting the appeal
56Under this court’s Criminal Appeal Rules, the Crown’s appeal ought to have been perfected on December 11, 2007. It was perfected on June 16, 2009. The delay beyond the perfection date was 18 months.
57The reason for the delay was the ongoing ill-health of Crown counsel who had carriage of the appeal. This explains why the delay occurred, and the circumstances giving rise to it are surely sympathetic. But, as the Crown fairly acknowledges, however sympathetic the circumstances, they do not excuse the delay. The Crown accepts its institutional responsibility to ensure the timely perfection of its appeals. This appeal could have, and undoubtedly should have, been assigned to another counsel. Because of the 18 month delay, the respondent submits that this court should dismiss the appeal. As I would set aside the stay, I do not think a dismissal is an available remedy under the Criminal Code.
58Alternatively, the respondent asks us to stay further proceedings. He filed an affidavit to demonstrate that he has been diagnosed as having moderate to severe clinical depression. He says that the uncertainty of these proceedings has caused ongoing stress and anxiety in his life.
59A stay is available if the respondent can show that continuing the proceedings would amount to an abuse of process. A stay for abuse of process is limited to cases where prosecutorial conduct is so unfair or vexatious or oppressive that continuing the proceedings would offend our sense of justice and undermine the integrity of the judicial process: see R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; Canada (Ministry of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391.
60The respondent does not satisfy this high threshold for several reasons:
Crown counsel did not delay perfecting this appeal for any oblique or nefarious motive. The delay was entirely due to counsel’s ill health.
Twice during the 18 month period, Crown counsel telephoned counsel for the respondent to explain the delay in perfecting the appeal. Both times counsel for the respondent said that he was “in no rush” and “health comes first”. These were gracious replies, reflecting the courtesy and civility that generally exists between Crown and defence counsel appearing in this court. Perhaps for that reason they should not weigh strongly against the respondent’s request for a stay. However, coming from senior and responsible counsel, they do suggest that continuing the proceedings would not be oppressive to the respondent.
The respondent had available to him remedies under the Criminal Appeal Rules to ensure that the appeal was perfected long before it was. For example, after the perfection date had passed, the respondent could have asked that the appeal be placed on this court’s “purge list”. Then a judge of this court would have imposed strict time limits for perfection, and if they were not met, the appeal could have been dismissed as abandoned.
The respondent’s depression, stress and anxiety pre-date the appeal, and even the trial. Thus, the most that can be said is that the delay extended the period of uncertainty. However, if the respondent is retried and convicted, the trial judge can assess whether the Crown’s delay would warrant a reduction of the respondent’s sentence: see R. v. Williams (2009), 2009 ONCA 342, 95 O.R. (3d) 660 (C.A.).
61For these reasons I would not further stay the proceedings.
(b) Reinstate the guilty verdicts or order a new trial?
62The trial judge found the respondent guilty and then he stayed the proceedings because of the lost evidence. The Crown submits that if we set aside the stay, we should simply reinstate the trial judge’s findings of guilt, enter convictions and remit the matter to the trial court for sentencing. That remedy is superficially attractive because by setting aside the stay we would have concluded that the lost evidence did not materially prejudice the respondent’s ability to make full answer and defence. However, I do not consider reinstating the guilty verdicts to be a fair or proper remedy for two reasons.
63The first reason is that the lost evidence, though not sufficiently prejudicial to justify a stay, may have warranted a lesser remedy, or at least could have been factored into the assessment of the credibility and reliability of the complainants’ evidence. In an appropriate case, the lost evidence could give rise to a reasonable doubt about an accused’s guilt. The trial judge in this case considered the lost evidence so prejudicial that it warranted a stay, yet he never considered the impact of the lost evidence when he assessed the complainants’ testimony. As he stayed proceedings, one must assume that had he turned his mind to the matter he would have taken the lost evidence into account when deciding on the accused’s guilt. Yet, he does not mention the lost evidence in his reasons for conviction.
64The second and main reason why I would not reinstate the guilty verdicts is that those guilty verdicts and the later stay are irreconcilable. The guilty verdicts assume guilt after a fair trial; the stay assumes that because the lost evidence was so prejudicial the respondent did not receive a fair trial. The two cannot stand together. What then should the trial judge have done?
65The trial judge did not err by waiting until the end of the trial to assess whether the prejudicial impact of the evidence justified a stay: see La at para. 27. The degree of prejudice ordinarily is best assessed after all the evidence is in. Moreover, before deciding on the stay the trial judge properly addressed the merits. That was the proper approach because if, on the evidence led, the Crown had not proved the case against the respondent, then he was entitled to an acquittal and not just a stay: see R. v. Scott.
66However, once the trial judge determined that the respondent was not entitled to an acquittal, he should then have considered whether the lost evidence compromised the fairness of the trial. If he concluded that the lost evidence was so prejudicial to the accused’s defence that it warranted a stay, he should have stayed the proceedings, and not made any findings of guilt. If he concluded that the lost evidence warranted a lesser remedy, he should have given effect to that remedy before considering whether the accused was guilty. If he considered that the lost evidence should be factored into the assessment of the credibility and reliability of the complainants’ testimony, he should have performed that assessment in deciding whether the accused was guilty.
67The procedure the trial judge followed parallels the accepted procedure when entrapment is raised by the defence and, in fairness to the trial judge, the procedure suggested in some of the cases dealing with lost evidence. An application for a stay because of lost evidence and an application for a stay because of entrapment bear some similarities. But I see the two differently.
68When entrapment is claimed, the trial judge first determines guilt or innocence; if the trial judge finds the accused guilty then the trial judge goes on to consider whether to stay the proceedings because of entrapment. This two-stage process where guilt is determined first is appropriate because a claim of entrapment has nothing to do with the fairness of the trial, or the culpability of the accused. It has to do with whether it was fair to even have a trial: see R. v. Imoro (2010), 2010 ONCA 122, 251 C.C.C. (3d) 131 (Ont. C.A.).
69The two-stage process for entrapment is not appropriate when a stay is sought because evidence has been lost or destroyed. Lost evidence potentially compromises the fairness of the trial itself. A stay because of lost evidence is granted where the missing evidence is so prejudicial that the accused cannot receive a fair trial. Thus, if the trial judge decides not to acquit, the trial judge should then rule on the stay application.
70If we were to reinstate the guilty verdicts, we would be permitting the Crown to take advantage of the procedure adopted by the trial judge. Doing so offends my sense of fairness. If the trial judge had followed the procedure I have outlined, he would have granted a stay and made no findings of guilt. Having allowed the Crown’s appeal and set aside the stay, we would simply have ordered a new trial.
71In the present circumstances, I think an order for a new trial is the fair and proper remedy. If necessary to give effect to it, I would allow the respondent 30 days from the release of these reasons to file a notice of appeal against conviction.
G. CONCLUSION
72In my view, the trial judge erred in finding that the audiotapes were lost because of the Crown’s unacceptable negligence. The trial judge also erred in finding that the lost evidence was sufficiently prejudicial to the respondent’s ability to make full answer and defence that it warranted a stay of proceedings.
73I would allow the appeal, set aside the stay and the findings of guilt, and order a new trial. If needed, the respondent shall have 30 days to file a notice of appeal against conviction.
RELEASED: April 26, 2010 “John Laskin J.A.”
“JL” “I agree E.E. Gillese J.A.”
“I agree R.G. Juriansz J.A.”
