WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application.
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.
486.6 Offence.
(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.
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
[D.(J.)]
Before: Justice Peter C. West
Evidence Heard on: October 21, 22, 23, 24, 25, 28, 29, 30 and 31, 2013, January 22, 2014, July 8, 2014 and September 15, 2014
Oral Submissions made on: January 13 and 15, 2015
Reasons for Judgment delivered orally on: February 12, 2015
Counsel:
Ms. A. Barkin — counsel for the Crown
Mr. A. Lerner — counsel for the defendant (J.D.)
WEST J.:
Introduction
1J.D. is charged with four counts of sexual assault and four counts of sexual interference between 2010 and 2011, involving his grandchildren, M.W., J.W. and N.A., and historical charges of gross indecency and indecent assault, between 1975 and 1979, on a male person, G.R. The trial commenced on October 21, 2013 and continued over many days during which the Crown presented its case by calling evidence. The Crown called M.W. and J.W., the accused's grandsons; G.F., foster mother for M.W. and J.W.; D.W., Children's Aid worker for M.W. and J.W.; N.A., the accused's grandson; M.A., the father of N.A. respecting historical similar fact evidence; G.R., the accused's brother-in-law; D/Sgt. Cecile Hammond; Inspector Gerald Milne, P.C. Manzon and D.I., a friend of G.R., who was called by the Crown as a rebuttal witness respecting an allegation by the defence of recent fabrication.
2At the commencement of the trial the Crown filed a Similar Fact Evidence Application. Ms. Barkin wanted to argue this application, prior to the witnesses' evidence being heard, on the basis of the witnesses' police statements and the evidence called by the Crown at the preliminary hearing before Justice Armstrong. Mr. Lerner had also brought a Lost Evidence Charter Application respecting the admissibility of the evidence of M.A. and G.R. After discussion with counsel it was decided the Similar Fact Evidence Application would be addressed after the Crown had called its evidence and the Lost Evidence Application would be delayed until the end of all of the evidence was led by both Crown and defence.
3On July 9, 2014, Ms. Barkin commenced her oral submissions respecting the admissibility of the similar fact evidence. Ms. Barkin had filed an extensive factum and casebook at the commencement of the trial. On July 10, 2014, Ms. Barkin completed her oral submissions and, during the defence submissions, I raised with counsel the advisability of postponing the argument until the completion of the case, as had been done in R. v. U.C., [2009] O.J. No. 1805 (Ont. C.A.) and R. v. M.E., [2011] O.J. No. 6177 (Ont. S.C., Hill J.). Both counsel agreed it would be preferable to deal with this issue in that fashion. The matter was adjourned to September 15, 2014 for Ms. Barkin to call two additional witnesses and for Mr. Lerner to call a number of defence witnesses.
4On September 15, 2014, at the conclusion of the Crown's case, the defence requested that he complete his submissions as to the admissibility of count to count similar facts and the evidence of discreditable conduct respecting M.A., which had resulted in convictions being registered against J.D. in 2000. Mr. Lerner wanted to know my ruling on the admissibility of similar fact evidence prior to the defence deciding whether to call any evidence. I then heard submissions from Mr. Lerner and Ms. Barkin made further brief submissions in reply, although she relied primarily on her written factum and her oral submissions on July 9 and 10, 2014. After hearing counsel's submissions, I reserved my ruling on the admissibility of the similar facts to November 14, 2014.
5On November 14, 2014, I delivered my ruling dismissing the Crown's Similar Fact Evidence Application. In that ruling I made a number of findings of fact respecting the evidence I heard during the trial. I set out extensively the factual background of the charges facing J.D., which I am reproducing below, together with some additional facts which relate to the issues in this trial.
6After delivering my similar fact ruling the trial was adjourned to allow Mr. Lerner to advise whether the defence would be calling any witnesses. When the matter returned on January 13, 2015, Mr. Lerner advised the defence would be calling no evidence. I then heard submissions from both counsel on the issue of whether the Crown had proven the charges facing Mr. D. beyond a reasonable doubt.
Factual Background
7In January 2011, M.W. and J.W., together with their sisters, S. and P., were in the care of CAS and living with a foster mother, G.F. and her husband. This arrangement had been in existence since the winter of 2010. The children would visit with their father, J.W., and their step-mother, L.W., on weekends. After such a visit on January 30, 2011, while the children were seated at the kitchen table in G.F.'s kitchen, G.F. overheard J.W. say, "Granddad always likes to touch my dick or hang on to it, squeeze my dick. What's with that?" M.W. responded, "He does that to me too." Then P., M.W.'s and J.W.'s sister, said, "Oh, he's just trying to brush up to you." G.F. left the kitchen and contacted CAS to advise what she overheard.
8G.F. denied discussing with J.W. or M.W. the comments made by them at the kitchen table. G.F. admitted she told J.W. on the drive to the police station on February 3, 2011, "You have to remember that you have to tell the truth and be a big brother to N.A." N.A. was J.W. and M.W.'s cousin. G.F. denied saying anything to either J.W. or M.W. about any allegations involving N.A. In her evidence-in-chief, G.F. admitted having a conversation at her house with L.W., who told her "N.A. was molested too." This discussion occurred a week or two after the kitchen table incident.
9G.F. testified she may have told J.W. and M.W. about her conversation with L.W. "long after" and she specifically told them to "just remember that you're a big brother to N." so they would know what she was referring to. This conversation likely occurred on a drive to the courthouse.
10On February 3, 2011, G.F. and her husband, C.F., first took J.W. and M.W. to the police station and she may have said to them, "Tell the officers what happened or what you told me." G.F. testified she does not know any details of the boys' allegations and has not asked them anything about the allegations as per the instructions of CAS.
11In cross-examination, G.F. testified she talked to her husband about how this was not the first time these allegations arose and that there was an incident 12 years earlier involving J.D. Initially G.F. testified there was no way J.W. or M.W. could overhear what she spoke to her husband about but later agreed she could not be certain whether the boys overheard these conversations. She denied telling J.W. or M.W. that J.D. was a pedophile. G.F. agreed if she had spoken to the boys about their allegations she would be breaking CAS rules and would be fired as a foster parent.
12G.F. agreed P.'s comment, "He's just brushing up to you" could have meant 'you're lying.' She also agreed she told the police in her February 3, 2011 statement, "J.W. makes things up so I don't really put much stock in him saying this sort of stuff."
13D.W. was the CAS worker for the four W. children between early fall 2010 and February 2011. He had arranged to get all four children together at G.F.'s house. He learned about the allegations from a report G.F. had filed with CAS. He arranged the two interviews with the police for M.W. and J.W. He was there for support but did not participate in the interviews. On February 3, 2011, both boys were anxious, exhibiting negative behaviour, being disruptive and were wrestling one another in the police station waiting area. He did not engage in any discussions with the boys concerning the allegations. The boys were speaking to each other and he only asked questions to clarify some points. All four children came to the police station with the foster parents in the same van.
14D.W. recalled the boys talking to each other about being touched in the groin by their grandfather after J.W. was done his interview. He recalled M.W. saying "I didn't say anything, I didn't say anything" after his police interview and then saying something about it not being a big deal. When the boys were talking about the allegations in the waiting area, D.W. asked some clarifying questions, such as "Who is Missy?", when M.W. said the touching happened while he was playing on the computer at Missy's house. M.W. mentioned at the same time that the touching of his groin happened at his grandfather's house and on a trip to Florida. J.W. kept saying "It's not a big deal, it wasn't a big deal" while standing on a chair and gyrating his hips and making a circular motion with his hand.
15D.W. testified he never said to the boys J.D. was a pedophile or that J.D. had touched another boy in the past. D.W. made reference to J.W. saying that J.D. was gay in reference to a trip to Florida where his grandfather did not pay attention to the girls because he is gay. D.W. also confirmed M.W. made similar comments about his grandfather liking boys and not girls. D.W. testified the boys, when they were acting out in the police waiting room, were saying loudly, "Grandpa touched our dick, what's the big deal." This was said loud enough so D.W. could hear it, as well as the police officer at the front desk.
16D.W. testified he did not speak to either M.W. or J.W. about their allegations between the February 3 and February 7 interviews with the police. D.W. did not recall being involved in either of the interviews of the boys by the police. This was not an accurate recollection as D.W. was present and participated during the interviews of M.W. and J.W. on February 7, 2011.
Evidence of M.W.
17M.W. has lived in foster care since age five or six. He has three siblings, J., S. and P. They currently live in four separate foster homes. M.W. watched his first video-taped statement to the police, which he made on February 3, 2011. Some of what he told the police was not true. He was not telling the truth with respect to what he said about Grandpa D. He did not feel like telling anyone about the events when he gave this statement. M.W. told the police that J.W. had told him Grandpa D. had touched him but cannot recall exactly what J.W. said. A male police officer and D.W.'s female co-worker were present during this interview.
18M.W. gave a second statement to the police on February 7, 2011. He felt more comfortable with D.W., who was his CAS worker, being there and the police officer, Cecile Hammond. M.W. told the police Grandpa D. had touched him on two occasions. The first occasion was at his aunt M.'s house. It happened in front of the computer, located in the "game" room. When Grandpa D. touched his penis, everyone else was in the TV room by the kitchen. N.A. was present, sitting on Grandpa D.'s lap. M.W. was sitting on the right arm of the chair Grandpa D. was sitting on. Grandpa D. put his finger on M.W.'s penis, over his pants, moving it in a circular motion for two to three minutes. Grandpa D. did not say anything during the touching. The touching stopped because M.W. moved away. While the touching was occurring M.W. felt scared and did not say anything.
19The second incident of touching occurred at M.W.'s father's house on a wooden couch with cushions, in a room with a TV and a computer. M.W. could not recall who was in the room when this happened. The touching was similar to the previous incident and happened for three minutes.
20M.W. did not recall the conversation between him and J.W. when he mentioned on the video where they discussed their grandfather doing this again. M.W. testified he never spoke to N.A. about Grandpa D. touching N.A. but he heard about it from G.F. after his February 7, 2011 interview.
21In cross-examination, M.W. said Grandpa D. touched him at his aunt M.'s house on January 14, 2011. He agreed he had a conversation with J.W., during the week of January 16, 2011, about Grandpa D. touching his penis. They talked about how and where the touching occurred. He later agreed further details may have slipped out.
22M.W. testified he knew both times he was taken to the police station it was for him to talk about Grandpa D. touching his penis. J.W. told him about Grandpa D. touching his penis on January 30, 2011 before dinner in M.W.'s bedroom. In cross-examination, M.W. testified the first incident was at his father's house and the second incident was at M's house. He changed this evidence when he was shown his testimony from the preliminary hearing. M.W. agreed he felt pressure to say things about Grandpa D.
23M.W. testified he told D.W., his CAS worker, on February 4, 2011 about being touched by D. prior to the February 7, 2011 interview. M.W. agreed J.W. might not have provided the details about where Grandpa D. had touched his penis; he found out from G.F. that Grandpa D. touched J.W. while watching a movie. M.W. agreed he told J.W. about both incidents that happened to him when they spoke around January 16, 2011, which is different from what he had previously told the Crown he said.
24M.W. admitted to lying and making up stories regularly. M.W. and J.W. made up lies together in the past to get people in trouble. M.W. confirmed he and J.W. had made up lies about their foster homes and as a result had to leave. M.W. agreed he lied for entertainment purposes or other reasons. M.W. agreed he lied to the police on February 3, 2011, but did not lie in his February 7, 2011 statement. M.W. testified he did not lie about Grandpa D. touching his penis but he did lie about seeing Grandpa D. touch his brother M. He lied during the February 7 interview when he said Grandpa D. only touched him once. This was a conscious decision he made not to tell the truth during that interview.
25M.W. testified he never told his father, J.W., nothing happened with Grandpa D. M.W. was shown his preliminary hearing testimony where he said he told his father he told the police on February 3 nothing happened because nothing had happened with Grandpa D. M.W. testified he was not telling the truth in his evidence at the preliminary hearing.
26M.W. said G.F. and D.W. were the two people he trusted the most in January/February 2011. He testified he was lying at the preliminary hearing when he said he told G.F. after the February 3 interview he told the police nothing happened with Grandpa D. because nothing had happened.
27M.W. agreed it was possible the incident on his father's couch may not have happened as he cannot remember it happening but he did remember it happening sometime before he went to his aunt M.'s house, within two weeks before. He agreed he does not remember being touched by Grandpa D. at his father's house because it may not have happened.
28M.W. agreed when he was sitting on the right arm of the chair at the computer it was unsteady and Grandpa D. was holding him around the waist and lower back so he did not fall off. He testified Grandpa D. had his arm all the way around him and Grandpa D. put his finger on his penis and did a circular motion. He felt it happening a few times.
29M.W. agreed he lied to the police on February 7 when he said he did not know why he was there as he knew he was there to talk about Grandpa D. M.W. testified he told the police this because he was scared. M.W. was then shown his previous evidence where he testified he was not scared when he spoke to the police on both occasions.
30M.W. changed his evidence about talking to J.W. prior to the kitchen table incident on January 30. He agreed he changes his stories and lies.
31M.W. testified he told D.W., his CAS worker, on February 4, 2011 about being touched by D. prior to the February 7, 2011 interview.
32M.W. had testified at the preliminary hearing in answer to a question by Ms. Barkin that he just knew Grandpa D. touching him was not an accident but he could not explain how he knew. M.W. now testified he knew the touching was not an accident because that is what a pedophile would do. He has heard at least two times before that Grandpa D. has done this and he knew it was on purpose because a normal human being would not do that.
33M.W. has heard D. called a pedophile by G.F., his aunt L.W. and his new foster mother, V.K.
34M.W. testified when he said during the preliminary hearing he had been touched by Grandpa D. on the same weekend J.W. said he was touched, this was not accurate as it was two weeks before.
35When M.W. was referred to his February 7 police statement where he said Grandpa D. has also touched N.A. at the computer, this was something he heard from G.F. on February 3, 2011.
36M.W. testified he could not remember all the stories he and J.W. made up but he remembered they were about their father.
Evidence of J.W.
37J.W. knew why he was going to the police station on February 3, 2011; it was to discuss what he had said at the kitchen table. He testified he did not say anything during that interview because he felt nervous. During the February 7 interview he knew what D.W. and the officer wanted him to talk about but he did not want to say anything.
38J.W. described sitting at the kitchen table in G.F.'s house and saying to M.W. that Grandpa D. touched his penis. M.W. said Grandpa D. also touched him. The incident happened when he was at Grandpa D.'s for a sleepover on a Saturday night. They watched the movie in Grandpa D.'s and his partner, R.'s, bed. J.W. fell asleep half way through the movie. Before falling asleep Grandpa D. touched his penis. Grandpa D. touched J.W.'s penis over his clothes in multiple circles. He cannot recall how many circles or how long it happened for. J.W. said he moved over closer to R. The touching stopped for a while but D. started touching his penis again in the same way as before, multiple times in a circular motion. He does not remember how it stopped as he fell asleep.
39When J.W. woke up in the morning, Grandpa D. was rubbing his back while J.W. was lying on his stomach. Nothing else happened. He did not tell his father or G.F. what happened. J.W. told his brother, M.W., at dinner that Grandpa D. had touched his penis.
40J.W. testified he never discussed what happened with M.W. or G.F. or D.W. The last time he spoke about it was at the preliminary hearing because he wanted to get it over with. He never spoke to N.A. about the incident.
41J.W. testified he saw Grandpa D. touching M.W. on the couch while they were watching a movie. J.W. was on the left of M.W. and Grandpa D. was on M.W.'s right. M.W. told J.W. about the touching after J.W. told M.W. at the kitchen table. M.W. told J.W. that Grandpa D. touched M.W.'s penis on the couch. M.W. gave no further details. This incident occurred before Grandpa D. touched J.W. J.W. saw Grandpa D. touching M.W.'s penis by making circles over M.W.'s pants.
42In cross-examination, J.W. agreed there were no other times Grandpa D. touched his penis.
43J.W. agreed he and M.W. made up stories in the past. J.W. agreed he no longer talks to his father and L.W. because of some lies he made up about them. J.W. testified M.W. never told him about Grandpa D. touching him. He testified he lied at the preliminary hearing when he said M.W. had told him Grandpa D. had touched M.W.'s penis. J.W. maintained he did not discuss with M.W. that he saw Grandpa D. touch M.W.'s penis while sitting on the couch and when he testified at the preliminary hearing he discussed with M.W. what he saw Grandpa D. doing, he was lying.
44J.W. agreed he and M.W. had discussions about this case, including what people said about Grandpa D. being gay and liking boys. These conversations happened before they went to the police in February 2011 and these were things he heard from G.F., L.W. and M.W. In cross-examination, J.W. testified he heard G.F. say things about J.D. and what was happening in court. G.F. talked to J.W. about what happened in court after he testified at the preliminary hearing.
45J.W. agreed M.W. told him about Grandpa D. touching M.W.'s penis before he went to Grandpa D.'s for the sleepover. He agreed M.W. told him this before J.W. blurted out his allegation at the kitchen table. J.W. testified he and M.W. discussed Grandpa D. touching his penis in a circular motion clockwise. They discussed the details.
46J.W. testified he did disruptive things so he would be sent back to live with his father. He agreed making up a story about Grandpa D. would make him go back to his father's place.
47J.W. agreed he said Grandpa D. had touched his penis during a trip to Florida while he was in the police waiting room. J.W. agreed this was a lie because Grandpa D. never went to Florida on this trip. J.W. agreed this was all made up.
Evidence of N.A.
48N.A. is J.D.'s grandson. J.D.'s daughter, M., is N.A.'s mother. N.A.'s father is M.A., who lives in Calgary. N.A. had not seen his father for many years.
49N.A. provided a video-taped police statement on February 10, 2011. N.A. had been to his grandfather's house on a number of occasions for sleepovers. N.A. has had, and continues to have, eczema on different parts of his body. In his statement he told the police he generally has eczema on his hands and feet. When N.A. slept over at Grandpa D.'s house, his grandfather put eczema cream on his body every night. N.A. would be naked when Grandpa D. put the eczema cream on his body. He later told the Crown he had a shirt on when Grandpa D. put eczema cream on him.
50In his police statement N.A. said his Grandpa puts cream on his private part but he did not know why. When asked if his private part was dry he said, "No." N.A. said Grandpa D. put the cream on two times. Grandpa D. put the cream on when it was night time, he did not know why. When N.A. was asked by D/Sgt. Hammond why he thought Grandpa D. put eczema cream on his penis, N.A. said he believed Grandpa D. put cream on his private part "because he thought my body was really dry."
51At the preliminary inquiry N.A. was asked by the Crown, in examination in-chief, "Okay, did you ever put cream on your penis because of eczema?" and N.'s answer was "Yes." N.A. told the Crown the reason he said "yes" was because he "had dry skin and eczema on his penis."
52In cross-examination, N.A. agreed when he went to Grandpa D.'s house for the sleepover his body was white with eczema. At the preliminary hearing N.A. testified he did put cream on his penis for eczema. He testified at the trial when he went to Grandpa D.'s for the sleepover he had eczema on his penis. N.A. agreed when Grandpa D. put the eczema cream on his penis Grandpa D said, "Noah this is how you're supposed to put it on." N.A. agreed he had eczema all over his body at that time, including his penis. Grandpa D. put eczema cream all over his body, especially his hands.
53In re-examination, N. testified he does not remember having eczema on his penis. In his police statement he told the police he puts the cream "on my body but my grandpa puts it on my private part. I don't know why." He was asked by the Crown, "Can you tell us what your best memory is of whether or not you had eczema on your penis at that time?" and N.A. responded, "I could've but if I – if I didn't, he might've been doing it because just to make sure it doesn't happen, just doesn't…"
54In his statement to the police N.A. said when he was at Grandpa D.'s house he would have a shower. Grandpa D. would get in the shower with N.A. Grandpa D. was wearing his underwear. Grandpa D. told N.A. to wash his private parts. N. testified he washed his private parts and Grandpa D. washed them once, the first time he went there. N.A. told the police he did not know how to wash his private part. The one time Grandpa D. washed N.A.'s private part was after Grandpa D.'s partner, R., had cut N.'s hair. Grandpa D. talked to him about washing his private part as N.A. did not know how to do it.
55N.A. would take baths because he was scared of showers. N.A. testified he did not know how to properly clean his penis, no one ever taught him how to wash himself. On one of the sleepovers Grandpa D.'s partner, R. cut N.A.'s hair. N. had hair everywhere so his grandfather took him in the shower to wash it off. Grandpa D. had underwear on but N.A. was naked. Grandpa D. touched N.A.'s penis in the shower. The Crown asked N.A. at the preliminary hearing, "What made you think your grandfather was trying to show you how to clean your penis?" and his answer was, "Because he was telling me how to – how to and stuff."
56In cross-examination N.A. agreed he told the police in his statement he did not know how to wash his penis at the time. He agreed his mom, M., had asked Grandpa D. to show N. how to properly clean his penis. The only time Grandpa D. touched N.A.'s penis in the shower was when he showed N.A. how to wash it. Grandpa D. did not rub N.A.'s penis; he showed N.A. how to properly clean it. N. testified in re-examination that Grandpa D. showed him how to roll back his penis and how to clean it properly.
57N.A. testified he did not feel uncomfortable when Grandpa D. touched his penis because his mom had asked Grandpa D. to show N.A. how to wash it.
58When Grandpa D. touched N.A.'s penis, either to put cream on it because of eczema or the time he showed N.A. how to properly wash his penis, Grandpa D. only touched his penis for a few seconds. N.A. testified when he had the sleepover at Grandpa D.'s house he was in pain from the eczema because his skin was very dry and uncomfortable. He did not have any cream with him so he told Grandpa D. and they stopped on their way to Grandpa D.'s house to get some cream.
59N.A. agreed he testified at the preliminary hearing he was very upset he could not see his grandfather anymore. He was upset he could not go up to Grandpa D. to talk to him. After the preliminary hearing he saw his father M.A., who told N., he was testifying against J.D. because J.D. had touched him in a sexual way too, many years before. N.A. testified this upset him a great deal. N.A. agreed his feelings for his grandfather changed for the worse as a result of what M.A. said Grandpa D. did to him. M.A. told N.A. Grandpa D. was a "very bad man." N.A. testified his feelings about Grandpa D. changed because his father, M.A., told N.A. it was recurring, which was not right. In re-examination at the trial N.A. testified his father told him J.D. spiked his drink, he fell asleep and J.D. touched him sexually.
60N.A. also testified when he told his mother what happened with Grandpa D. his aunt L.W. was present. L.W. became very upset and said Grandpa D. should not have washed N.A.'s penis or put eczema cream on N.'s penis.
Evidence of M.A.
61M.A. was called on the Similar Fact Application voir dire respecting an incident which occurred in 1999 involving J.D. and M.A. I determined in my ruling, November 14, 2014, at paras. 112-116, the evidence of M.A. did "not meet the test for admission of similar fact evidence as there is no connectedness or nexus to the offences alleged." It was Ms. Barkin's position that portions of M.A.'s evidence relating to N.A. were admissible on the trial proper and I agree there are portions of his evidence that are relevant to issues on the trial. I have set out that evidence below.
62M.A. was the boyfriend of M., J.D.'s daughter. In 1999 he was charged as a youth with a number of offences. J.D.'s second wife, G.W., acted as M.A.'s surety and he resided in J.D.'s and G.W.'s home in the basement. M. and L., J.D.'s daughters from his marriage to L.K., also resided in the house. M.A. and J.D.'s daughter, M., ultimately were married and had a son, N.A. together.
63M.A. agreed he was not heavily involved with N.A. after his break-up and divorce from M. He was working in Ottawa and Calgary for approximately three years. He was upset M. was allowing N.A. to see J.D. and he would ask N.A. if J.D. ever touched him. N.A. never told M.A. that J.D. had touched him because if he had M.A. would probably have assaulted J.D.
64M.A. testified that his son N. has psoriasis, a skin condition that he gets on his legs and hands. N.A. has a prescription cream for the condition. M.A. never saw N.A. with eczema on his penis or buttocks and he never saw N.A. scratching in these areas.
65M.A. testified his son is not circumcised. M.A. has observed his son pull the skin back to clean his penis. M.A. testified N.A. knew how to do this because M.A. and M. had taught him to do this.
66M.A. initially denied telling N.A. anything about what J.D. did to him. M.A. agreed he told his son that J.D. was a dangerous man and what Grandpa D. did to N.A. should never have happened. He told N.A. this was why he got mad at N.A.'s mother and why they split up. M.A. testified he had difficulties with J.D. being a pedophile and being around his kids.
67In cross-examination. M.A. initially testified he did not talk to N.A. about why he was in court. He then agreed he may have talked about something but he was not completely sure. Whatever he said to N.A. he did not get into details. After being confronted with N.A.'s evidence, M.A. finally agreed it was possible he may have told his son, N.A., the details of why M.A. was in court testifying.
Evidence of G.R.
68G.R. is the brother of L.K., J.D.'s first wife. She was 10 years older than G.R. and she passed away three to four years ago. L.K. married J.D. when she was in university.
69When G.R. was 15 or 16 years of age his sister was engaged to J.D. They were all supposed to go to St. Thomas on a Sunday. His sister, L., had gone ahead with a friend on Friday night and G.R. was to go on Sunday with J.D. They were staying at J.D.'s parents' house in Aurora. J.D. was four years and a few months older than G.R. There was a pull out couch, which G.R. and J.D. got into to watch TV. J.D. offered G.R. some alcohol and he had some Playboy Penthouse magazines. G.R. turned them down. They watched TV and G.R. fell asleep.
70G.R. woke up in the middle of the night and saw J.D. on the other side of the bed. When G.R. woke up the next day J.D. was rubbing his back and then J.D. slipped his hands underneath G.R.'s underwear and touched his penis in a masturbating fashion for 15 to 30 seconds. G.R. jumped out of the bed and went into the kitchen. He could see J.D. in a mirror while he was in the kitchen and J.D. was masturbating underneath the blankets. After a minute, J.D. got out of the bed and went to the washroom. Five minutes later J.D. came to the kitchen and asked G.R. what he wanted for breakfast.
71G.R. asked his friend, B.T., to come the next evening to stay so nothing would happen. He told B.T. what happened but B.T. passed away eight to ten years ago. He also told another friend, D.I., about what happened but this was some time after the incident. G.R. never confronted J.D. about what happened. G.R. never told his sister, L.K. what J.D. had done because she was engaged to J.D. and was happy. When G.R. was in his mid-twenties he told his mother about what had happened and his mother told L.K.
72His sister finally approached him about this incident. About eight to ten years after he spoke to L.K. about what happened, L.K. initiated a police investigation. G.R. was advised by his sister, L.K., that she had filed a complaint with the police about J.D., her ex-husband, sexually assaulting young boys and told the officer to contact G.R. After speaking with L.K., G.R. was contacted by the police and he provided a video-taped statement on September 22, 1997.
73D/C Milne was the investigator who conducted the interview. D/C Milne interviewed L.K. on video, as well as a number of witnesses relating to G.R.'s allegation. D/C Milne also attempted to contact other individuals whose names had been provided by L.K. in her statement and through correspondence. G.R. testified he was told by the investigating officer no charges would be laid as there was not sufficient evidence.
74The video-taped statement given by G.R. has been lost or destroyed, as well as the entire investigative file, including D/C Milne's notes, a video-taped interview with L.K., correspondence addressed to D/C Milne by L.K., statements provided by friends of G.R.: D.I. and B.T. On April 14, 2011, after realizing D/C Milne's investigative file was lost or destroyed, D/Sgt. Hammond obtained a new statement from G.R. G.R. testified he was told by D/Sgt. Hammond the earlier investigative file from 1997 was lost or destroyed.
75G.R. agreed in cross-examination nothing in this new statement is verifiable. G.R. did not remember that J.D. and his sister were going through a divorce in 1997. He did know his sister was ordered to make support payments to J.D. G.R. did not recall if he or his sister contacted the police in 1997. G.R. could not recall any of the details of what he told the officer in 1997 on video.
76G.R. is certain J.D. and L.K. were engaged and not married at the time of the incident.
77There is only one document available from the police investigation conducted by D/C. Milne in 1997, which comes from the York Regional Police RMS Main Database. This document is seven pages and consists of brief summaries of D/C. Milne's Activity Record. There are very few details contained in this document. There is a Narrative Text Record, which appears to be a brief summary of L.K.'s initial complaint to P.C. Valentine when she was in hospital. The last part of this report is a supplementary report containing information from D/C. Milne who became the officer in charge of the investigation. This report advises G.R. reported one incident of sexual assault which involved fondling and that it occurred in 1976 in Aurora. There is indication G.R. did not wish to proceed with charges but was prepared to give evidence if more recent charges came to light involving J.D.
78G.R. agreed in his statement to D/Sgt. Hammond in April 2011 he said J.D. started to "fondle" him and he also used the word "masturbate" to describe what J.D. was doing to him.
79G.R. knew B.T. came on Saturday night to stay at J.D.'s house. D.I. was not at the house and he discussed the incident with D.I. sometime after it happened. In cross-examination, G.R. agreed it could have been years later when he told D.I. about the incident. He told B.T., but did not provide him any details. G.R. agreed he did not tell anyone about what happened at that time. Both B.T. and L.K. passed away prior to the commencement of this trial.
80G.R. did not change his plans after the incident and he drove for two hours on Sunday with J.D. to St. Thomas. He agreed it was possible he stayed with J.D. in the same room on Sunday night in St. Thomas. G.R. agreed before the alleged incident J.D. did not make any other sexual advances. Further, G.R. testified that after the incident there was not a lot of awkwardness between them.
81G.R. cannot recall the details of what he told the police in 1997. G.R. agreed he did not talk to L.K. about the incident until after she divorced J.D.
Evidence of D.I.
82He is currently 52. He is a very close friend of G.R. and is currently in daily contact by phone with G.R. He believed he had a conversation with G.R. when they were 12 or 13, although previously he had thought they were 15 or 16 when the incident occurred. He recalled there was an occasion when G.R. and J.D. were sleeping on a pull out couch at G.R.'s parents' house, 153 Cherrywood Drive, Newmarket, and D.I. was sleeping in G.R.'s room, which was just off the TV room. D.I. testified G.R. spoke to him the day after, in his parents' driveway. D.I. testified G.R. told him G.R. stopped J.D.'s hand from coming underneath G.'s blanket. D.I. could not recall if G.R. told him about a sexual touching. G.R. told him there was an attempt; this was the purpose of the hand underneath the blanket.
83D.I. recalled a picture in G.R.'s parents' house of the wedding day with G.R. and D.I. and they were 8 or 9 years old. D.I. believed J.D. and L.K. were married when this incident happened. D.I. testified he and G.R. have never discussed the details of this incident after that day. D.I. recalled a Scottish police officer coming and speaking to him and getting his statement concerning this incident. He does not recall exactly when that happened but believed it was three or four years before D/Sgt. Hammond interviewed him in May 2011.
84In cross-examination, D.I. testified it was his understanding from G.R. that G.R. had stopped J.D. from touching G.R. As far as D.I. knew, J.D. never touched G.R. because G.R. stopped him. D.I. now believed the incident happened in the early or mid-1970s and he and G.R. could have been as old as 13 or 14 years of age. This change in D.I's evidence came about as a result of the Crown approaching D.I. outside the courtroom after she had completed her examination-in-chief, at which time she showed D.I. the wedding certificate of J.D. and L.K. I expressed to Ms. Barkin that her conduct was completely inappropriate and contrary to the Law Society of Upper Canada's Rules of Professional Conduct. Unfortunately, her actions could not be undone.
85It is clear the Scottish police officer referred to by D.I. was D/C Milne, who interviewed D.I. in 1998, according to the Detective Activity Record (Exhibit 1 on the Lost Evidence voir dire). D.I's statement was also lost or destroyed in the investigative file referred to above.
Evidence of Inspector Gerald Milne
86Inspector Milne was assigned, as a detective constable in the Child Abuse Unit, to investigate a complaint made by L.K., J.D.'s ex-wife, while she was a day resident at York County Hospital Psychiatric ward. He was unable to locate any of his notes from his investigation. Originally they would have been stored in 2 District in Richmond Hill. Later, in 1998, the notes would have been moved to Police Headquarters because the Child Abuse Unit was moved there. Inspector Milne testified a system was established for police notebooks older than five years called the Central Depository System. He checked all of the locations the notebook might have been put but was unable to locate it.
87Inspector Milne testified he had a very vague memory of the file. He attempted to refresh his memory from the Narrative Text in the RMS Main Database printout respecting this investigation. He had no memory of calling in a portion of the Narrative Text, but this report is attributed to him. The fact his name and badge number were attached to it indicate he must have called it in. The portion of the Narrative Text Record indicates he reported it on February 25, 1999. The dates referred to did not improve his memory. He did not recall the actual interview with G.R. and did not believe it was video-recorded. However, one of the Activity Record entries indicates it was video-recorded. He did not have a specific recollection as to why no charges were laid but the Narrative Text indicates G.R. did not want to proceed and the complaint was quite dated.
88He agreed in cross-examination the video-taped interview would have the details of the incident alleged by G.R. His notes likely indicated the date and year the incident was alleged to have occurred. It was also possible the notes would indicate other reasons why charges were not laid at the time. His assessment of the quality of the evidence would be a factor in determining why charges were not proceeded with.
Evidence of D/Sgt. Cecile Hammond
89She is the officer-in-charge of the current investigation which led to this trial. She was the officer who printed the RMS Main Database document (Exhibit 1 on voir dire). She learned of the previous video statement of G.R. from this document and attempted to locate it along with other statements obtained in 1997. They could not be located and are assumed lost or destroyed. D/Sgt. Hammond was unable to determine any explanation for what happened to this investigative file. She determined the file may have been sent to Barrie Police in 1999 as a result of an investigation involving M.A. but she could not confirm this.
90D/Sgt. Hammond agreed she told G.R. the original investigative file with his previous video-taped interview had been lost.
Previous Factual Findings Respecting M.W. and J.W. and Whether the Crown Had Proven Guilt Beyond a Reasonable Doubt
91Ms. Barkin conceded during her submissions I made findings respecting the credibility of M.W. and J.W. in my ruling on the Crown's application respecting similar fact evidence. I adopt my reasons set out in paras. 123-132 of my ruling on the Crown's Similar Fact Application, dated November 14, 2014. I found M.W. and J.W. to not be credible witnesses as they both admitted to making up stories and lies about people to get them in trouble or to get what M.W. and J.W. wanted to happen. I set out some of the many inconsistencies in their evidence and their admissions of lying to the police and to the Court respecting their statements and evidence. There were many additional examples in their testimony which I did not reproduce or refer to. They admitted to making up allegations about J.D. committing sexual assaults which were untrue: J.W. alleged Grandpa D. touched his penis in Florida on a family trip that J.D. was not present on and M.W. initially alleged he saw Grandpa D. touch N.A.'s penis and then changed this allegation to his seeing Grandpa D. touch another brother M.'s penis. Both allegations were untrue.
92As a result of my findings respecting credibility and reliability, and the fact both brothers eventually admitted to discussing with each other their allegations against their grandfather, I find the Crown has not proven the charges respecting M.W. and J.W. beyond a reasonable doubt. The most telling comment by M.W. was his evidence that he and J.W. had discussed with each other that Grandpa D. had touched each of their penises and J.W. told M.W not to say anything because he wanted to "blurt it out." This was discussed prior to J.W. blurting out "granddad always likes to touch my dick or hang on to it, squeeze my dick. What's with that?" and M.W. adding, "He does that to me too." It is my view, it would be unsafe to find J.D. guilty of the offences alleged by M.W. and J.W.
93Consequently, for the extensive reasons set out in my similar fact ruling, referred to above, I do not believe the Crown has met the onus of proof beyond a reasonable doubt in respect of the charges involving M.W. and J.W. and those charges are dismissed.
Previous Factual Findings Respecting N.A. and Whether the Crown Had Proven Guilt Beyond a Reasonable Doubt
94In determining whether the Crown had demonstrated on a balance of probabilities that the evidence relating to N.A. met the test for admitting his evidence as similar fact evidence on a count to count basis respecting M.W. and J.W., I made findings of fact respecting the nature of N.A.'s evidence. As a result of those findings of fact I found the Crown had not met its burden and dismissed the Similar Fact Evidence Application. I have reproduced my findings from para. 133 respecting N.A.'s evidence.
It is my view the specific acts themselves are completely dissimilar and there are no distinctive features unifying the incidents. It is my view, based on the evidence from N.A., J.D.'s act of demonstrating and showing N.A. how to properly wash his penis at the request of N.A.'s mother, M., is not a sexual assault. Further, N.A.'s evidence at the preliminary inquiry was unequivocal, both in examination-in-chief and cross-examination; he had eczema on his penis at different times. Further, he testified at the preliminary in cross-examination he had eczema at the time he went to grandfather's for the sleepover, he told his grandfather he was in pain and uncomfortable and his grandfather bought eczema cream. N.A. adopted his evidence from the preliminary inquiry that he had eczema all over his body, including his penis. His grandfather put the cream where N.A. had the eczema. N.A. agreed his grandfather only put the cream where N.A. had eczema. He adopted and agreed with his evidence at the preliminary during his cross-examination at the trial. He resiled somewhat from his evidence at the preliminary on re-examination; however, it was clear to me that his father, M.A., had tainted N.A.'s evidence because M.A. discussed in detail his own allegations and told his son, Grandpa D. was a very bad man who had done this previously. It was clear to me there was a significant change in N.A.'s attitude towards his grandfather from the preliminary hearing to the trial. For all of these reasons, it is my view the Crown has not established on a balance of probabilities the probative value of admitting N.A.'s evidence as similar fact evidence in respect of M.W.'s and J.W's evidence. [Emphasis added]
95In my ruling I clearly found J.D.'s conduct in demonstrating to N., on one occasion, how to properly wash his penis, at N.'s mother's request, did not amount to a sexual assault. Further, I found J.D.'s conduct in applying eczema cream to N.'s penis, on two occasions, did not amount to a sexual assault. I made these findings as a result of N.'s evidence on this issue in his statement, his evidence at the preliminary hearing and his trial evidence, which I have set out above in paras. 48 to 60. I also found there was tainting of N.A.'s evidence by N.A.'s father, M.A., who spoke to N.A. between the preliminary hearing (see above, paras. 59, 66 to 67). It should be noted as well, N.A.'s aunt, L.W., expressed strong views to N.A. that Grandpa D. should not have shown N.A. how to properly wash his penis and should not have put eczema cream on N.A.'s penis, prior to N.A. being interviewed by D/Sgt. Hammond.
96Ms. Barkin attempted to persuade me that my findings were incorrect. She pointed to N.A.'s police statement, which was provided closest in time to the incidents in question and submitted I should have preferred N.A.'s video-taped statement over his evidence at the preliminary and trial. N.A.'s video statement was played in court and adopted by N.A. as being his statement and that it was true. Ms. Barkin submitted the Supreme Court of Canada in R. v. C.C.F., 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 held it is self-evident children will have a better recollection of events shortly after those events occurred as they will some weeks, months or years later (see para. 19).
97In R. v. C.C.F., supra, at para. 47, Cory J. held:
If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not render those parts inadmissible. Obviously a contradicted videotape may well be given less weight in the final determination of the issues. However, the fact that the video is contradicted in cross-examination does not necessarily mean that the video is wrong or unreliable. The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliable than the evidence elicited at trial….
98The trial judge in C.C.F., Lane J., was entitled to assess the inconsistencies as a matter going to weight as she found the inconsistencies were only minor ones regarding peripheral details which were not of great significance and which did not preclude her from relying on the video-taped statements as true. The Supreme Court held that Lane J. was "entitled to prefer the video-taped statement to that elicited on cross-examination."
99I am aware of the Supreme Court's decision in R. v. B. (G.) (No. 2), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 and R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 respecting two major changes in the approach courts should take in assessing the evidence of young children. The first is the removal of the common law notion, which was codified in legislation that the evidence of children was inherently unreliable and therefore to be treated with special caution. The second is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. Finlayson J. in R. v. Stewart, 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811 (Ont. C.A.), after referring to the above-noted Supreme Court decisions made these observations:
20 …Wilson J. [in B. (G.)] advocates a common sense approach when dealing with the testimony of young children and advises judges not to impose the same exacting standards upon them as upon adults. Wilson J. emphasizes that the courts should continue to carefully assess the credibility of child witnesses and she does not suggest that the standard of proof beyond a reasonable doubt should cease to apply in criminal cases in which young children have been victimized….
21 As I understand these two judgments, we must assess witnesses of tender years for what they are, children, and not adults. We should not expect them as witnesses to perform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level of scrutiny for reliability that we do adults…. [Emphasis added]
100I have set out above in detail the evidence of N.A. from his video-taped statement to the police, his evidence in-chief and cross-examination at the preliminary hearing and at this trial. N.A. told D/Sgt. Hammond in his video-taped statement that his aunt L.W. spoke to him, with his mom, prior to his speaking to the police and asked him all the same questions. It is clear from the police statement N.A. viewed the shower incident as his Grandpa showing him how to properly wash his penis because he did not know how to do it. In respect of Grandpa D. putting eczema cream on his penis, it is my view, from watching the video that N.A. was conflicted as to whether Grandpa D.'s conduct was bad or good. At the end of the police statement he was asked by the officer if there was any questions he thought the officer was going to ask which she did not and he asked, "Why did he?...put the cream on my body." D/Sgt. Hammond asked him, "Why do you think he did?" N.A. responded, "Because he um, he did because he thought my body was really dry." D/Sgt. Hammond asked, "How do you know that?" N.A. answered, "Because – I know it because um, I was born with eczema."
101I determined in my assessment of N.A.'s evidence for the Crown's Similar Fact Evidence Application and based on a consideration of the totality of N.A.'s evidence, the conduct engaged in by J.D. in terms of demonstrating and showing N.A. how to properly wash his penis was not a sexual assault. Despite Ms. Barkin's submissions, I make this same finding again at the conclusion of the trial. I find, based on N.A.'s adoption of his preliminary hearing evidence as being true, that J.D. was asked by his daughter, M., N.'s mother, to engage in the very conduct he did. In N.A.'s police statement he said his grandfather showed him how to wash his penis because N.A. did not know how to as he just washed the outside. What he told D/Sgt. Hammond is consistent with his mother asking his grandfather, in N.A.'s presence, to show N.A. how to properly wash his uncircumcised penis. He agreed in cross-examination he was not uncomfortable with his grandfather showing him this. He later told the Crown, in re-examination, he knew his grandfather was showing him how to wash his penis properly because Grandpa D. showed him how to roll back the skin. In light of the totality of N.A.'s evidence, I find J.D.'s conduct does not amount to a sexual assault and therefore Counts 7 and 8 are dismissed.
102Ms. Barkin further submitted I should accept what N.A. said in his police statement; namely, the eczema cream was put on N.A.'s body because his skin is really dry and when D/Sgt. Hammond asked N.A. if his private part was dry, N.A. replied "No." I have referred above to where N.A. appears conflicted at the conclusion of his police statement concerning why his grandfather put eczema cream on his private part. However, this is not the only evidence before me on this issue. N.A. testified at both the preliminary hearing and at this trial he did have eczema on his private part or penis when J.D. put cream on him on two occasions during the first sleepover. N. told the police his grandfather stopped at Shopper's to buy eczema cream for N. because he had really dry skin. N. told the police the cream really helped his dry skin. At the preliminary hearing and trial N. testified his body was covered all over, including his private part, with eczema; his skin was very dry and it was painful.
103Consequently, based on the totality of N.A.'s evidence, I find N.A. had eczema on his penis and other parts of his body when he went to his grandfather's house for a sleepover. It is particularly significant that, at the preliminary hearing, N.A., after watching and adopting his police video-taped statement, answered the following question put to him by Ms. Barkin, "Okay, did you ever put cream on your penis because of eczema?" and N.'s answer was "Yes." N.A. told the Crown the reason he said "yes" was because he "had dry skin and eczema on his penis." At the trial N.A. testified his grandfather put eczema cream on his body, including his penis on two occasions, because he had eczema and his skin was really dry, including his penis. N.A. testified when his grandfather put the cream on his penis it did not make him feel uncomfortable as it took only a few seconds. It is my view, N.A.'s concluding comments at the end of his police statement are consistent with the evidence he gave both to the Crown and defence at the preliminary hearing and the trial. After considering the totality of N.A.'s evidence, I find J.D.'s conduct in applying eczema cream to N.A.'s body, including N.A.'s private part, was not a sexual assault. Consequently, Counts 5 and 6 are dismissed.
Lost Evidence
(a) Position of the Parties
104It was Mr. Lerner's position the unexplained loss or destruction of evidence obtained by the police in 1997 relating to G.R.'s allegations was a breach of J.D.'s s. 7 Charter rights to make full answer and defence. The Crown was not able to provide any explanation for the loss or destruction of the evidence, which is a breach of the Crown's obligation to disclose all relevant information in its possession and a further breach of the Crown or police duty to preserve relevant evidence. The defence does not allege the failure to produce the evidence by the Crown was an abuse of process and the police conduct which led to the loss or destruction of the evidence could not be said to be done deliberately for the purpose of defeating the disclosure obligation, however, the loss or destruction of the investigative file was as a result of unacceptable negligence on the part of the police. This has created prejudice to J.D.'s right to make full answer and defence and this prejudice cannot be remedied in any other way but through a stay of those charges relating to G.R.
105Ms. Barkin argues the loss or destruction of the evidence was not owing to unacceptable negligence by the police or Crown. Further, she submits any prejudice to the right to make full answer and defence has been remedied by the obtaining of a new statement by G.R. in 2011 by D/Sgt. Hammond and, consequently, this is not one of the clearest of cases where a stay of proceedings is the only remedy. It is the Crown's submission society's interest in having J.D.'s guilt or innocence determined on the merits is an important consideration, together with the fact that a further statement was obtained from G.R. by D/Sgt. Hammond in 2011 and G.R. was available for cross-examination both at the preliminary hearing and trial. In all of the circumstances the Crown argues any potential prejudice is speculative and unknown.
(b) The Law
106The defence brought this Charter application at the commencement of the trial, but as set out in R. v. Bero, 2000 CanLII 16956 (ON CA), [2000] O.J. No. 4199 (Ont. C.A.), at para. 18, in a stay application:
…a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial
Consequently, I indicated to counsel it was my view the caselaw supported postponing hearing arguments on the issue of lost evidence until the conclusion of all of the evidence (see also R. v. La, 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 at 107-108 (S.C.C.)).
107In R. v. Bradford, 2001 CanLII 24101 (ON CA), [2001] O.J. No. 107 (Ont. C.A.), at para. 4, Weiler J.A. adopted the summary of the current state of the law respecting the impact of lost evidence and when a stay should be granted as set out in R. v. B. (F.C.), 2000 NSCA 35 (CanLII), 142 C.C.C. (3d) 540 at pp. 547-548, leave to appeal to the Supreme Court of Canada denied, [2000] S.C.C.A. No. 194:
The basic principles ... were summarized by Sopinka J. in R. v. La, supra, commencing at para. 16. Those principles derived from R. v. Stinchcombe (No. 1), 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1; R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, 82 C.C.C. (3d) 193; R. v. Stinchcombe (No. 2), supra; R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, 96 C.C.C. (3d) 225; R. v. O'Connor, 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.); and, R. v. Carosella, supra, and further developed in La, are:
(1) The Crown has an obligation to disclose all relevant information in its possession.
(2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.
(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights.
(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation.
(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor.
(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.
(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.
The O'Connor criteria referred to in the eighth point are as stated by Justice L'Heureux-Dubé at para. 82 of O'Connor:
It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.
108In the case at bar, G.R. was first approached by the police in September 1997 as a result of a complaint made by G.R.'s sister, L.K., against her former husband J.D. An investigation was conducted by D/C. Milne into L.K.'s allegations respecting her brother, G.R. On September 5, 1997, L.K. was interviewed in York County Hospital's Psychiatric ward by P.C. Valentine after which the matter was turned over to D/C. Milne to investigate. A video-taped KGB statement was obtained from L.K. by D/C. Milne; L.K. provided information by fax; a video-taped KGB statement was obtained from G.R. by D/C. Milne; written statements from B.T. and D.I., disclosure witnesses for G.R. were obtained; a written statement from J.D., another sister of G.R., to whom G.R. first disclosed the allegation, 8 to 10 years after the incident occurred, and D/C. Milne's notes of his investigation were all lost or destroyed by York Regional Police. The entire investigative file could not be located when a search was conducted in 2011, approximately 35 years after the incident is alleged to have occurred.
109The Crown did not tender any evidence respecting the manner investigative files and video tapes are stored, generally or specifically, respecting the investigative file in this case by York Regional Police. The only evidence the Crown led related to the efforts of D/Sgt. Hammond and Inspector Milne in trying to locate the file and video tapes.
110The only document available is a computer-generated document, RMS Main Database, which does not have any details concerning the allegation made by G.R., other than it is one incident of fondling. This document was downloaded by D/Sgt. Hammond on March 12, 2011. Contained in this computer printout is a Narrative Text Record, which is different from another report, entitled York Regional Police Narrative Text Hardcopy, which was copied from something called Speedtrack on October 10, 2013 by D/Sgt. Hammond (filed collectively as Exhibit 1 on the Lost Evidence voir dire).
111There can be no doubt the missing investigative file and information is relevant. The fact that the KGB video-taped statement was obtained for the first time by police some 23 years after the alleged incident occurred demonstrates, in my view, the importance of it being preserved and provided to the defence for cross-examination. Ms. Barkin argued because the first statement made by G.R. was 23 years after the date the incident allegedly occurred, the new statement obtained by D/Sgt. Hammond in April 2011 rectifies any prejudice created to the defence. I should be satisfied the loss or destruction of this evidence has not irreparably harmed J.D.'s ability to make full answer and defence. In my view, Ms. Barkin has failed to appreciate that the complainant's statement in Carosella was only obtained for the first time by the crisis centre social worker 30 years after the allegation arose. The destruction of this statement in Carosella was held to irreparably harm the right to make full answer and defence and the only remedy was a stay of proceedings. A further 14 years had passed before G.R.'s second statement was provided to the police when he was aware the investigative file had been lost or destroyed, including his video-taped statement.
112Further, it is my view, the significance of G.R.'s 1997 video-taped statement is increased having regard to the circumstances under which the complaint was made by L.K. She contacted police while she was a patient in York County Hospital in the psychiatric ward. L.K. was separated from J.D., and had been ordered to provide him support payments. According to G.R.'s testimony, his sister L.K., spoke to him prior to the police contacting him. Both of the video-taped KGB interviews of L.K. and G.R. are no longer available to the defence. The statements of three disclosure witnesses are no longer available. The notebooks and any monitor notes of the video-taped statements of L.K. and G.R. are similarly lost or destroyed. Both L.K. and B.T. are now deceased.
113It is noteworthy that G.R. advised D/C. Milne he was willing to give evidence if further more recent charges came to light respecting J.D. when D/C. Milne's investigation was closed without laying any charges. It is my view this heightened the obligation on the part of the police to retain and preserve this evidence. G.R. testified he was told by D/C. Milne the reason for not laying any charges was because there was not sufficient evidence. D/C. Milne had no independent recollection of why he did not lay charges against J.D. The lost investigative file would certainly bear on this issue. It is interesting to note the evidence of D.I, who was called by the Crown as a witness to whom G.R. apparently disclosed what happened proximate in time to the incident, was completely inconsistent with the evidence of G.R. The most significant area of inconsistency was respecting the details of the alleged sexual assault. It was D.I.'s evidence G.R. told him J.D. attempted to put his hand under a blanket but G.R. stopped J.D. before anything happened.
114It is clear, having heard all of the evidence, the issue of G.R.'s credibility and reliability presents as a significant issue as a result of the loss or destruction of his September 22, 1997 KGB video-taped statement. I echo the observation of Sosna J. in R. v. C.W., [2013] O.J. No. 6251, at para. 43, "Without the availability of the video, to what extent is the Applicant's ability to fully cross-examine, put inconsistencies to A.A. [the complainant] and challenge her narrative prejudiced so that he is unable to make full answer and defence or have a fair trial?" The same observation is equally applicable to the case at bar.
115In R. v. Carosella, supra, this issue was considered. Carosella was a teacher who was charged with gross indecency involving a student. Approximately 30 years after the alleged incident, the complainant went to a sexual assault crisis centre, reported the incident and was interviewed by a social worker for about an hour and forty-five minutes. During the interview the social worker took notes. Subsequently those notes, as well as the notes of 300-400 other files were shredded in accordance with the centre's policy of shredding files with potential police involvement. At trial Carosella's application to stay was granted because of the unavailability of the notes. The Court of Appeal set aside the order and ordered a new trial. In reversing that order the Supreme Court of Canada in part held at paras. 51-54 that:
…I am of the view that the trial judge did not misdirect himself nor is his decision clearly wrong. Indeed, I am of the view that he reached the right result.
The trial judge… noted that credibility was a major issue in the case, and that as a result, the destruction of the documents was very significant. The trial judge stated (at pp. 308-9) that:
I find that the accused has been seriously prejudiced, being deprived of his basic right of the opportunity to cross-examine the complainant on previous statements made by her as to the very incidents of sexual misconduct between her and the accused which are the subject matter of the indictment….The accused has had his ability to make full answer and defence substantially impaired by the destruction of the complainant's file and, therefore, I find that his rights have been infringed under ss. 7 and 11(d) of the Charter and it would be unfair to allow the prosecution to proceed where the accused has been deprived of that opportunity to cross-examine the complainant on statements previously made when substantially the whole of the Crown's case is based on the credibility of the complainant.
…As noted above, the notes taken by the Centre worker represented the first detailed account of the alleged incidents. The notes constituted the only written record of the alleged incidents which were not created as a result of an investigation. The only other statements by the complainant were to the police and at the preliminary inquiry. The social worker Romanello had no recollection whatever of what was said to her. As for the complainant, even if she could recall she would not likely admit that what was said was inconsistent with her present testimony. As a result, any possibility of contradiction of the complainant by reference to her previous account was destroyed
116In the case at bar, G.R. testified that he had no recollection of the details he provided to D/C. Milne on September 22, 1997 in his video-taped statement. It was his evidence nothing in his new statement, which he provided on April 14, 2011 to D/Sgt. Hammond, could be verified. The summary from 1997 only indicated G.R. complained J.D. had "fondled" him once, yet his new statement not only alleged J.D. "fondled" him but also uses the word "masturbate" to describe what J.D. allegedly did to G.R. in 1976. As I expressed to Ms. Barkin, there is a significant difference between these two actions. When D.I.'s evidence is added into the mix, there are substantial differences between the various versions of G.R.'s allegations. Therefore, I find the possibility of contradicting G.R. at this trial, as set out in Carosella, was significantly undermined.
117It is also significant the entire investigative file of D/C. Milne was lost or destroyed by York Regional Police. The loss or destruction cannot be termed as a deliberate action by YRP, as in Carosella, however, the loss or destruction of an investigative file, where there is an indication the complainant, G.R., was prepared to testify if further allegations came to light, does, in my view, demonstrate an unacceptable negligence on the part of the police respecting their obligation to retain the information. The loss of the entire investigative file means there is no other evidence available that might shed some light on what G.R. said in his video-taped statement or what motivations prompted L.K. in 1997 to make a complaint to the police concerning her ex-husband, J.D.
118This case is unlike many of the cases provided by the Crown where the monitor notes or the investigating officer's notes or a transcript of the video-taped statement were still available. In R. v. Bradford, supra, the court held "to determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration" (see R. v. B. (F.C.), supra, where a typed transcript was available; R. v. J.D., [1996] O.J. No. 1906 (Ont. C.A.) where the officer's notes existed; R. v. G.S., [2010] O.J. No. 296 (Ont. C.A.), at paras. 47-51, where notes of the interviewer were available; and R. v. Scott, 2002 CanLII 44950 (ON CA), [2002] O.J. No. 2180 (Ont. C.A.), where the police officer's notes of the video-taped statement were available).
119As referred to above, G.R. was advised by D/Sgt. Hammond, prior to providing his new statement on April 14, 2011, that the previous video-taped statement was lost or destroyed. He was also advised there were other charges involving other complainants. It is interesting that D/Sgt. Hammond testified G.R. was initially reluctant to get involved but decided to provide a new statement after he was advised his previous statement had been lost or destroyed. As a result of the loss of G.R.'s video-taped statement, G.R. is unable to pinpoint when he says the incident occurred or how old he was and he testified it could have occurred when he was somewhere between 12 and 16 years of age.
120As I have indicated, the credibility of G.R. is the central issue in this case. The Crown recognized this was the central issue in the charges given she sought to bolster G.R.'s credibility by calling D.I., as a rebuttal witness, because of the defence allegation of recent fabrication. In my view, D.I.'s evidence further demonstrates the extreme prejudice caused to the ability of the defendant to make full answer and defence as a result of the loss or destruction of the investigative file. D.I.'s evidence is at complete odds with G.R.'s. Some of the most significant discrepancies are as follows: D.I. says he was sleeping in the G.R.'s parent's house in Newmarket when the allegation arose, G.R. told D.I. what happened the next day in the driveway of G.R. parent's house, D.I. testified J.D. and L.K. were married, and D.I. testified G.R. told him J.D. attempted to put his hand under the blanket. G.R. says the incident happened at J.D.'s parents' house in Aurora, D.I. was not present at this house when the alleged incident occurred, G.R. says he told D.I. something happened between J.D. and himself during a sleepover but no details were provided, G.R. testified he did not tell D.I. anything for months or maybe years after the incident, G.R. says J.D. and his sister, L.K., were not married at the time and were engaged, and G.R. says J.D. fondled G.R.'s penis. D.I.'s statement was also lost or destroyed. The other rebuttal witness, B.T., who G.R. says was at J.D.'s parents' home in Aurora, is deceased.
121I recognize the Charter does not guarantee "the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562" (see R. v. O'Connor, supra, at para. 193). In Harrer, supra, at para. 45, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness:
At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.
122A stay is a powerful tool as a remedy under s. 24(1) of the Charter. The cases in the Ontario Court of Appeal and the Supreme Court of Canada refer to it as a remedy of last resort, rarely granted, because both the accused and the community are entitled to a verdict on the merits. It is a remedy that can only be made in the "clearest of cases."
123As Sopinka J. stated, on behalf of the majority of the Supreme Court held in Carosella, at paras. 55 to 56:
An additional important factor is the absence of any alternative remedy that would cure the prejudice to the ability of the accused to make full answer and defence. No alternative remedy was suggested by the Court of Appeal. This is one of the two factors mentioned by L'Heureux-Dubé J. in the portion of her reasons to which I have referred. The other factor is irreparable prejudice to the integrity of the judicial system if the prosecution were continued.
These two factors are alternatives. The presence of either one justifies the exercise of discretion in favour of a stay.
124Based on the evidence led in this trial, I conclude there is no alternative remedy capable of curing the prejudice to J.D.'s ability to make full answer and defence as a result of the investigative file, including G.R.'s and L.K.'s video-taped statements, the monitor notes or police officer's notes conducting the interviews and the statements from D.I. and B.T., being irretrievably lost or destroyed by YRP. G.R. has no recollection of the details he provided in his video-taped statement. There are no monitor notes or officer's notes that could provide details of what was in the video-taped statements. D/C. Milne has no recollection of what G.R. said in his video-taped statement and, in fact, D/C. Milne could not even recall that the statement was video-taped.
125In R. v. O'Connor, [1995] 4 S.C.R. 41, at para. 83, the Supreme Court held:
Where life, liberty or security of the person is engaged in a judicial proceeding, and it is proved on a balance of probabilities that the Crown's failure to make proper disclosure to the defence has impaired the accused's ability to make full answer and defence, a violation of s. 7 will have been made out. In such circumstances, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the prejudice to the accused's ability to make full answer and defence or to the integrity of the justice system is irremediable. In those "clearest of cases", a stay of proceedings will be appropriate.
126For all of the above-noted reasons, I find this matter to be one of the "clearest of cases." A stay of proceedings is therefore ordered in respect of the charges involving G.R.
127In the event I am wrong respecting this being "the clearest of cases", I find the Crown has failed to satisfy me beyond a reasonable doubt of J.D.'s guilt respecting the allegation of G.R. I recognize recent complaint has been abrogated, however, in my view, G.R. not telling his sister L.K. about what he says occurred does not accord with common sense. J.D. and G.R.'s sister were engaged and not married, and G.R.'s explanation for why he did not tell her what happened, namely, L.K. was happy, in my view, was unbelievable. Further, G.R. agreed he slept at J.D.'s parents' house again on Saturday night, then drove alone with J.D. for two hours to go to the speedway in St. Thomas and then he agreed it was possible he slept in the same room as J.D. on Sunday night at his sister's friend's house. This conduct also does not accord with common sense.
128Of the people he testified he told about the incident, it was his position he did not provide any details. As I have referred to previously, the statements of G.R.'s two disclosure witnesses, B.T. and D.I., have also been lost or destroyed and B.T. is deceased. D.I.'s testimony is in direct contradiction to G.R.'s evidence. In my view, D.I.'s evidence, called by the Crown, raises a reasonable doubt concerning G.R.'s evidence. In the light of D.I.'s evidence it is my opinion it would be unsafe to find J.D. guilty.
129Finally, I find G.R. elevated the conduct he originally alleged as being "one incident of fondling" (Exhibit 1 on Lost Evidence voir dire) to J.D. masturbating him under the blanket. I disagree with the Crown that these two terms are interchangeable. The dictionary definitions of each term clearly establish the conduct involved is significantly different as between fondling and masturbating. I find G.R. was attempting to enhance or elevate J.D.'s conduct as being more serious. G.R. has no recollection of any activities he was involved in with J.D. on either the Saturday or Sunday. G.R. did not change any of the plans that had been arranged by his sister, L.K. He spent Saturday with J.D. but does not recall what they did. He does not recall any of the specifics concerning what happened when he was in St. Thomas with J.D., and his sister, L.K. G.R. also testified there was no awkwardness between him and J.D. despite what J.D. was supposed to have done to him.
130Based on the totality of the evidence respecting G.R.'s allegation I find the Crown has not proven J.D. guilty beyond a reasonable doubt. Consequently, the charges involving G.R. are dismissed.
Released: February 12, 2015
Signed: "Justice Peter C. West"