Court File and Parties
COURT FILE NO.: CR-17-3866 DATE: 20180704 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JOHN THOMAS WUSCHENNY Accused
Counsel: Walter Costa, for the Crown Andrew Telford-Keogh, for the Accused
HEARD: March 12, 13, 14, 15, 16, 26, 28, 29, June 6 and 15, 2018
BEFORE: Pomerance J.
Ruling on Pre-Charge Delay and Lost Evidence
Introduction
[1] It is difficult to reconstruct a police investigation that took place 25.5 years ago. Officers retire. Memories fade. Notes may go missing. There may be gaps in the telling of the investigative story. However, our law recognizes that there is no limitation period for criminal offences. Cases that go cold can be revived. Charges may be laid many years after the alleged offence, just as offenders may be exonerated years after a wrongful conviction.
[2] In this case, John Wuschenny argues that the delay between his alleged offences, in 1990, and the charge, laid in 2015, violates his rights under ss. 7 and 11(d) of the Charter. The accused is charged with breaking into ST’s home and sexually assaulting her one night in early autumn 1990. There is no question that ST was victimized by somebody on the night in question. The issue at trial is identity – the Crown must prove beyond a reasonable doubt that the person who committed the sexual assault in the victim’s home was the accused.
[3] The accused was a person of interest back in 1990, but charges were not laid. A Crown Attorney was consulted and offered the opinion that there would not be a reasonable prospect of conviction. It was not until 2015 that police re-examined the case file. At that time, they decided to send the exhibits back to the Centre of Forensic Sciences (CFS) for forensic analysis. Semen containing the DNA profile of the accused was detected on the t-shirt ST was wearing at the time of the offence.
[4] The accused admits that it is his semen on the t-shirt. However, he denies any involvement in the crime. He denies knowing the complainant or ever having had contact with her.
[5] The police sent various exhibits to the CFS in 1990, but the t-shirt was not among them. It was seized but, for reasons that cannot now be recalled, it was not one of the items sent for testing. The defence alleges that the police were negligent in failing to send the t-shirt. It is said that, had they done so, the accused would have been charged much earlier, and would be better able to defend himself. At this remove in time, it is difficult for the accused to remember events from so long ago. The accused argues that this is a case in which pre-charge delay – amounting to close to 25.5 years - violated his rights under ss. 7 and 11(d) of the Charter.
[6] It is difficult to know precisely what was done with the t-shirt after it was seized in 1990. This is because the document that recorded the treatment of seized exhibits – the evidence control sheet - has gone missing. This is another basis on which the accused seeks a stay. He says that the loss of the evidence control sheet curtails his ability to argue the Charter motion on pre-charge delay.
[7] The Crown resists the application for a stay, arguing that the police were not negligent. The testing that was available in 1990 would not necessarily have resulted in Mr. Wuschenny being charged with the offence. The lost evidence is unfortunate, but has not interfered with the right to full answer and defence.
Background
The offence
[8] One night in September 1990, ST was asleep in her bed at home when she heard the sound of a door closing. Her roommates were out for the evening, and she thought that one of them had arrived home. Regrettably, she was wrong. An intruder had broken into her home. He rushed into the bedroom, jumped on her while she lay in the bed, and sexually assaulted her. The intruder forced her to perform fellatio and insisted that she swallow his ejaculate. He was wearing a pillow case over his head to hide his identity.
[9] During the event, the intruder kept repeating the same threats over and over again: “Don’t look at me. Don’t say anything or I’ll kill you”. The intruder put a pillow over ST’s head and something else over the pillow. She believed that he did this to prevent her from seeing him. She testified that, at one point, the intruder got up off of her and began walking around. She turned her head slightly and, looking up, was able to see his face. He moved the pillow back over her face so that she could no longer see.
[10] After the intruder ejaculated in her mouth, he said “You better swallow it”. He put his hand over her mouth and told her to swallow it, and she did. But she was also intent on spitting some of the semen out of her mouth. She testified that she brought her chin down to her chest and spit some of the semen out onto the blankets or her clothing. She could not determine where the semen landed but she deliberately spit semen out so that the intruder would get caught. ST testified that, at the time, she knew about DNA through media and reading. She testified that she told police she had done this.
[11] Before the intruder left, he asked if she had any jewelry. She told him that it was on her dresser and he took two of her rings.
The 1990 investigation Police Seizures
[12] On September 20, 1990, the day of the incident, ST reported the event to the police. Police attended at her home and seized a number of items as evidence. Among them was the bedsheet that was on the bed when the assault took place, a blouse that had been on the bed and a jewelry box. Police determined that the intruder had moved the picnic table in the backyard to just below the second story bedroom window and gained entry by cutting the screen.
[13] Officer Barbara Everingham took the victim to the Sexual Assault Centre where a rape kit was used to collect samples. She turned the completed kit over to Officer Alan Brown, along with the clothing that the victim was wearing. This included the t-shirt that was later found to have the accused’s DNA on it. Officer Everingham did not see the items of clothing. They were turned over to her in a bag. Officer Brown did not recall having a conversation with Officer Everingham about the clothing. Nor did he remember dealing with the t-shirt.
[14] The accused was one of the individuals being investigated for the crime. Police attended at his residence and asked if he would provide samples of head hair, pubic hair and saliva on a voluntary basis. He did so. He also provided police with two pairs of running shoes, as a footwear impression had been detected at the scene of the crime.
[15] The bedsheet and blouse were sent by police to CFS for forensic analysis, along with the rape kit, and biological samples taken from the accused and one other individual. Officer Alan Brown had direct contact with the CFS. He testified that the CFS told him what to send in. There were limitations on resources, and the CFS could not test everything. It was believed that the bedsheet and the blouse were most likely to yield evidence. They were both on the bed when the offence took place. It appeared that there was staining on the bedsheet, and some hairs. Officer Brown could not recall what, if anything, he had done with the t-shirt. He could not recall whether he saw a stain on the t-shirt, or whether he exposed the t-shirt to an alternate light source, such as a luma light, to see if there were bodily substances.
[16] The officer’s notes did not assist him in this regard. He listed everything that he seized on an evidence control sheet. The evidence control sheet would have recorded everything that the officer did with the items. If he had used a luma light to check for biological substances, this would have been noted on the evidence control sheet. The evidence control sheet could not be located. It had gone missing sometime between the time of the seizures, and these proceedings.
[17] Officer Brown testified that, while he could not recall whether he used a luma light, if he had detected or suspected bodily fluids on an item of clothing, he would have contacted the CFS to ask if they would accept the item.
Other investigation
[18] The police conducted a photographic lineup with ST to see if she could identify her attacker. The accused, through his lawyer, had refused to participate in a live lineup. The police gathered 12 photographs of individuals whom they believed looked like each other. They presented the lineup to ST on February 7, 1991, with all photographs laid out at the same time, rather than one by one. When ST reached the photo of the accused, she said that she had felt sick to her stomach and had a very strong reaction. She had the feeling that she had seen him before in her room. She said that she remembered thinking that the person in her room was “good looking” and so was the man in the accused’s photo. She signed the back of the accused’s photo. In her testimony she elaborated on this, saying that the intruder “didn’t seem like he was a criminal type…he seemed to be dressed okay…he didn’t – like I say, he didn’t have tattoos, he didn’t smell…”. When asked in cross-examination, she insisted that she recognized his face.
[19] She was also presented with a tape of the accused’s voice that had been obtained from his former girlfriend.
[20] Police did not lay charges in the 1990s. In February 1991, investigators consulted with a Crown Attorney. The accused was the lead suspect. The Crown advised against charging the accused, on the basis that there was no reasonable prospect of conviction. It was decided that the Crown and investigators would await the report from CFS. In the meantime, police continued to investigate the accused with surveillance, informants and other methods.
Testing done at the CFS
[21] In 1990-91, the CFS did not routinely conduct DNA analysis, but rather, used conventional serology which tested for blood type. According to Melinda Matte, the CFS began doing RFLP DNA analysis in 1990. This type of DNA testing required a much larger sample – several hundreds times more substance - than do current testing procedures. Ms. Matte testified that the samples from this case first arrived at the Centre in October 1990. CFS had only begun working with DNA technology in July 1990. In October 1990, DNA analysis was only being used in major serious cases where identification was the main issue, and there was sufficient bodily samples to allow DNA comparison. DNA was not used in this case. Ms. Matte testified that the semen stain on the t-shirt would not have been large enough to permit DNA testing with the technology being used in 1990.
[22] The testing that was done on the bedsheet revealed three separate biological samples. They were compared to a biological sample taken from the accused and he was excluded as a potential donor of all three. The samples taken from the bedsheet were from A secretors. The accused was an AB secretor.
Storing the exhibits
[23] The items relating to the investigation remained under the control of Officer Brown while he was still in the forensic identification branch. Eventually, the evidence was moved from the branch to the vault. It was then transferred to a different building when the police service moved. Care was taken to preserve the integrity of the items when they were transferred. Officer Brown testified that all of the items were placed in a box, but were separated in order to avoid contamination.
[24] The case remained open for a time, but no arrests were made.
The 2015 Investigation
[25] Years later, in 2015, the investigation was revisited. Constable Hodgins was assigned to locate the case files and evidence, in order to determine whether any exhibits should be retested given changes in technology. By this time, the Centre was not only doing DNA testing, it was using sophisticated testing techniques, which allowed analysis of very small biological samples.
[26] Officer Hodgins located the case material in the property retention room. He took it to the forensic identification branch and contacted the CFS. Items were re-submitted and the white t-shirt that was worn by the victim at the time of the offence was sent to CFS for the first time. Officer Hodgins confirmed that the items stored in the box were properly stored and separated, such that there was no concern about cross contamination. All bags were closed, and all envelopes sealed. He did not recall seeing any staining on the clothing.
[27] The t-shirt worn by ST at the time of the offence was found to have a semen stain on the front. A DNA profile was extracted and the accused could not be excluded as the donor of the profile. Using probability match statistics, the likelihood that the profile in question belongs to someone other than the accused is 1 in 5.7 trillion. The accused admits that it is his semen on the shirt.
[28] Having received the new results, police contacted ST. Officer Fryer told ST: “Good news there was a hit on the DNA”. ST asked: “A hit on what?” and the officer told her “On your t-shirt”. ST asked “what t-shirt” and the officer said “the one you were wearing”. Shortly after that, ST met with police to provide another statement. On this occasion, she told police that she clearly remembered spitting the semen out onto her t-shirt. At trial, she modified her evidence to say that she did not know where the semen went, that she just knew that she spit it out. ST testified that she assumed that she must have spit it out onto the t-shirt because that is where the accused’s DNA was found.
Analysis
Positions of the parties
[29] The accused seeks a stay based on two grounds. First it is alleged that the period of pre-charge delay infringed the accused’s rights under ss. 7 and s. 11(d) of the Charter. It is said that the delay of 25.5 years between the incident and the charge has resulted in a lack of memory on the part of the accused. It is said that the delay is the result of police negligence, in particular, the failure of police to send the victim’s t-shirt to CFS for analysis in the 1990s.
[30] Second, it is alleged that the loss of the evidence control sheet by police investigators infringed the accused’s rights under ss. 7 and 11(d), because the control sheet would disclose what, if any, testing was done on the t-shirt in 1990 before it was placed in the evidence locker. It is said that the loss of the document adversely affects the accused’s ability to make out a Charter infringement based on pre-charge delay.
[31] The Crown argues that neither the pre-charge delay, nor the lost document, have resulted in Charter violations. It is said that the period of time between incident and charge was not a function of police negligence but rather the fact that forensic testing methods were far less sophisticated in the 1990s. The Crown says that even if the t-shirt had been sent to the CFS back then, there is no reason to think that charges would have been laid at that time. The Crown disputes that the loss of the evidence control sheet was due to negligence. It argues that, in any event, there is no air of reality to the assertion that the document would assist the defence. With respect to both issues, the Crown argues that the accused has failed to demonstrate the degree of prejudice necessary to ground a Charter violation.
General Principles: pre-charge delay
[32] It is well settled that pre-charge delay – even a lengthy period of pre-charge delay is not per se offensive to the Charter. There is no limitation period on the laying of criminal charges. Various factors may lead to charges being laid many years after the fact. For example, it is known that it is common for victims of sexual abuse to delay reporting, sometimes for many years: see R. v. L. (W.K.), [1991] S.C.J. No. 40.
[33] In other cases, delay may arise because critical forensic testing was not available until many years after the offence. It is not uncommon for investigators to use new science to solve old cases. Forensic DNA analysis has led not only to arrests in historical cases, but also to exonerations in cases of wrongful conviction. As indicated by Melinda Matte, the scientist who testified in this case, forensic DNA analysis has evolved dramatically over the last few decades. The sophistication of current testing methods far exceeds the capabilities of DNA testing in the 1990s.
[34] The police are clearly entitled to reopen old cases and use new science, in the hopes of discovering evidence that previously eluded investigators. Revisiting cold cases does not offend the Charter; it is good police work. Where DNA is concerned, the crime is often serious, involving sexual assault or homicide. It is in the interests of justice that perpetrators of such offences be identified and apprehended on the basis of reliable, independent, scientific evidence. This is one of the objectives of the National DNA Data Bank, which seeks to link individual DNA profiles with those left behind at unsolved crime scenes: see R. v. Rodgers, 2006 SCC 15; R. v. Briggs (2001), 157 C.C.C. (3d) 38 (Ont. C.A.). Charges flowing from new technologies are not offensive merely because they post-date the offence by many years.
[35] This conclusion is consistent with the general law governing pre-charge delay, which recognizes that delay is not itself offensive to the Charter. In L.(W.K.), above, Stevenson J. wrote in para. 22 that: “delay in charging and prosecuting an individual cannot, without more, justify staying the proceedings as an abuse of process at common law.” He went on to state in para. 24 that:
Staying proceedings based on the mere passage of time would be the equivalent of imposing a judicially created limitation period for a criminal offence. In Canada, except in rare circumstances, there are no limitation periods in criminal law.
[36] In the recent case of R. v Hunt, 2017 SCC 25, the majority of the Supreme Court of Canada adopted the dissenting opinion of Hoegg J.A. in the Newfoundland Court of Appeal (2016 NLCA 61), in which she observed, at para. 99, the following:
The notion that delay, in the absence of jeopardy to fair trial rights, Crown misconduct, or oppressive Crown conduct, can result in the staying of serious criminal charges, is very disturbing to me. It effectively means that charges laid after a lengthy investigation cannot be prosecuted on their merits, regardless of their complexity and volume. Complexity and volume involve time. It follows that the more complicated and voluminous the offence, the more likely that charges arising from it will be stayed. Such a result rewards sophisticated criminal conduct, and effectively imposes a judicially determined limitation period on charges which take a long time to investigate simply because it is too difficult, time consuming, and/or expensive to do so.
[37] It has also been recognized that, for policy reasons, courts should refrain from supervising the efficiency of police investigations. It is not for the courts to dictate when a charge should be laid. Even after there are grounds to charge, there may be good reason to wait. The evidence may not suffice to ground a reasonable prospect of conviction. Police may, for investigative reasons, wish to temporarily hold off on charging. It is a calculus which does not lend itself to judicial review. As noted by Laskin C.J. in R. v. Rourke at p. 1040-41:
Absent any contention that the delay in apprehending the accused had some ulterior purpose, courts are in no position to tell the police that they did not proceed expeditiously enough with their investigation, and then impose a sanction of a stay when prosecution is initiated. The time lapse between the commission of an offence and the laying of a charge following apprehension of an accused cannot be monitored by Courts by fitting investigations into a standard mould or moulds. Witnesses and evidence may disappear in the short run as well as in the long, and the accused too may have to be sought for a long or short period of time. Subject to such controls as are prescribed by the Criminal Code, prosecutions initiated a lengthy period after the alleged commission of an offence must be left to take their course and to be dealt with by the Court on the evidence, which judges are entitled to weigh for cogency as well as credibility. The Court can call for an explanation of any untoward delay in prosecution and may be in a position, accordingly, to assess the weight of some of the evidence.
[38] While Rourke was decided pre-Charter, it has been adopted in many post-Charter cases, including Hunt, above and R. v. Young, 46 O.R. (2d) 520 (C.A.), in which the Court of Appeal for Ontario quoted from Justice Marshall’s words in U.S. v. Lovasco (1977), 431 U.S. 783, at pp.790-92:
From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried. … From the perspective of law enforcement officials, a requirement of immediate prosecution upon probable cause is equally unacceptable because it could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information to evaporate before they are fully exploited. And from the standpoint of the courts, such a requirement is unwise because it would cause scarce resources to be consumed on cases that prove to be insubstantial, or that involve only some of the responsible parties or some of the criminal acts. Thus, no one's interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.
[39] These cases make clear that delay alone will not cause a Charter breach or yield a Charter remedy. There must be something more to trigger consideration of ss. 7 and 11(d) of the Charter – improper state conduct that has caused or contributed to the delay. If the state is at fault for the delay, and the accused can establish prejudice to the right to full answer defence, a stay or other remedy may be granted. The defence need not prove malfeasance in the sense of state conduct that is improper, vexatious or carried out in bad faith. It is enough to demonstrate that state conduct is or was oppressive. This point was made by Hoegg J.A. and approved by the Supreme Court of Canada in Hunt, at paras. 94-95:
I agree with the Respondents that oppression does not have to involve Crown “malfeasance or misconduct”. However, I am of the view that there must be some Crown conduct which can be fairly described as offensive, even if not made in bad faith or for an ulterior purpose, in order to constitute oppression so as to support a determination of abuse of process.
Such conduct must rest on some positive action on the part of the oppressor and be rooted in the facts and circumstances of the Crown’s conduct of the case. I am also of the view that the oppressive action must be apparent so as to permit an objective evaluation of it, and that it involve an element of injustice or unfairness, or at least result in injustice or unfairness to an accused.
[40] Where there is oppressive action by the state, giving rise to prejudice of the accused’s right to defend him/herself, pre-charge delay may serve as the basis for a remedy such as a stay.
Was there oppressive or other improper state action in this case?
[41] Why did the police not send the t-shirt into the CFS in the early 1990s? There is no definitive answer to this question in the evidence, but I believe that inferences can be drawn from the police testimony and the documentary evidence relating to the CFS submission forms. I will deal with the evidence control sheet when I discuss the arguments on the lost evidence.
[42] Officer Brown testified that, after the items were seized, he spoke to a forensic scientist at the CFS to seek guidance on what could be sent in. The CFS could not test everything seized from every crime scene. Because of limitations on resources, scientists helped police to identify exhibits most likely to yield useful evidence. In this case, those exhibits included the bedsheet (which appeared to have staining) and a blouse that was on the bed at the time. The bedsheet was a logical choice for submission. It was on the bed at the time of the offence and there was apparent staining.
[43] We now know that the t-shirt had significant evidentiary value. Hindsight is 20-20. Knowing the 2015 test results, one can readily appreciate the importance of the t-shirt, but it might not have been as obvious to the investigators on the ground in 1990. Police were actively investigating this crime. Several officers were assigned to the case. Officers were very interested in any physical evidence that might provide a clue as to identity. Choices had to be made, and it was determined that the bedsheet and the blouse were the most likely to yield evidence. The officer and the scientist exercised their best judgment at the time. Just as courts must be careful when judging the efficiency of police investigations, so too must courts be careful not to act as Monday morning quarterback when reviewing decisions about forensic testing. In an ideal world, everything would be tested in every case. In the real world, decisions must be made about the allocation of forensic resources.
[44] To what extent should the police have known about the t-shirt? What did ST tell them at the time of the incident? ST testified on the voir dire that she spit some of the semen out, and that she told every police officer that she spoke to about this. ST’s friend, KL, testified on the voir dire. ST called her the morning after the offence and she came over to the house. ST told her what happened. According to KL, ST told her that she spit the intruder’s semen out. She said “I believe, from my memory right now, she just said she spit it out” KL did not know if it had been spit out onto her shirt or her pillowcase.
[45] In her police statement of 2015, ST appeared quite certain that she had spit the semen out onto her t-shirt. However, that appeared to be less a function of memory, and more a function of the fact that the accused’s semen was found on the t-shirt. Similarly, while ST recalled telling the police that she had spit out semen, she may well be mistaken in this regard. She testified that she told the officers who responded the day of the incident. Officer Everingham was quite certain that ST did not say anything about spitting out semen. If she had, the officer would have noted it down. Officer Lemon did not remember her saying this. Officer Roberts testified that he would have made a note if ST had spoken about spitting out semen, but there was no notation.
[46] Curiously, Officer Alan Brown testified that he believed that the bedsheet was the best source of evidence because he understood that the complainant may have spit on the bedsheet. He did not have a record of this in his notes, and could not identify why he believed that to be the case. He believed that he knew it within hours of the offence, but could not identify where the information came from. As he put it “someone did mention something about spitting but I don’t know where from”.
[47] The formal statement given by ST to police on the day of the incident says nothing about spitting semen out. Rather, in that statement, ST said that she swallowed the ejaculate because she was made to do so by the intruder.
[48] Having considered the whole of the evidence, I conclude that ST was mistaken when she testified that she told police about spitting out semen. The police do not recall this being said, with the exception of Officer Brown who cannot identify when or from whom he learned this. ST’s statement to police, as recorded at the time, says the opposite, namely that she swallowed the semen as directed by her attacker. I do not believe that ST was trying to mislead the court. I perceived that she was sincere in her testimony and was trying to offer truthful evidence. However, the event was many years ago, and it was a traumatic episode in the complainant’s life. It is conceivable that ST’s memory has been affected by what she now knows about the DNA test results. She now knows that semen was found on her t-shirt and may have come to believe that she was conscious of spitting out semen at the time. The same may be said of KL. She too is a civilian witness and did not have notes to refresh her memory about when ST spoke of spitting out the semen. KL was also deeply affected by the news in 2015 that DNA had been found and the accused had been arrested.
[49] In short, the police may not have been aware that any semen was spit out in 1990. If they were aware of that, in accordance with Officer Brown’s testimony, they likely believed that the semen was spit onto the bedsheet, rather than the t-shirt. In all of the circumstances, the decision not to send in the t-shirt, while unfortunate, was not the kind of improper, or oppressive state conduct that is required to ground a Charter breach in pre-charge delay.
[50] Finally, for reasons that I will soon articulate, even if the t-shirt had been sent in for testing, it would not likely have resulted in charges at that time.
Would submission of the t-shirt have changed the timing of the charges?
[51] The evidence establishes that the CFS was not routinely conducting DNA analysis during the time frame in question. DNA testing of the t-shirt was, in any event, not possible then, because the sample was not large enough. Therefore, DNA was not an option in 1990. The exhibits in this case were subject to testing with conventional serology. If the t-shirt had been sent for testing in 1990, scientists would have determined that the substance on the t-shirt was of the same blood type as the accused. The accused would not have been excluded as a potential donor of the stain on the t-shirt. However, that is as far as the conclusion could have gone.
[52] A non-exclusion based on blood typing is not compelling evidence of identification. It does reduce the population of individuals who could have committed the crime, but does not discriminate in the way that DNA typing does. Testing would have revealed that the sample on the t-shirt came from an AB secretor. The accused was one of many individuals who fit that description. Before the results came back from the CFS, police were advised by the Crown Attorney not to charge the accused, because there was no reasonable prospect of conviction. A non-exclusion based on blood typing would have kept the accused in the suspect pool, but would not likely have led to charges at that time.
[53] In any event, the accused did remain in the suspect pool, even after he was excluded as the donor of the stains on the bedsheet. Police pursued other investigative avenues before the trail ran cold. One can presume that these events would have unfolded in much the same way, even if the t-shirt was sent for analysis. If sending in the t-shirt would not have changed the timing of charges, the failure to send it in did not contribute to the pre-charge delay.
Did the delay result in prejudice?
[54] Given the findings above, it is not strictly necessary to consider whether the accused has demonstrated prejudice sufficient to warrant a stay or other remedy. I will, however deal with the issue of whether any specific or concrete prejudice has been made out. I find that it has not.
[55] This is not a case in which the defence can point to witnesses or other evidence that would have been called had the case been tried earlier. The defence does rely on the disappearance of the evidence control sheet, but that pertains more to the voir dire issues than the trial on the merits. Suffice to say, the accused has failed to identify evidence that it would have called, and that would have been available, if the charge had been laid in the 1990s.
[56] The crux of the accused’s position is that he is prejudiced because he cannot remember events from over 25 years ago.
[57] There is no indication that the accused has forgotten something concrete that would have assisted the defence. I appreciate that there is an inherent absurdity in that observation. By definition, the accused cannot remember precisely what it is that he forgets. But there are two countervailing points. First, the accused did have reason, back in 1991, to think about his whereabouts and other circumstances relating to the offence. It was then that he was told about an investigation into sexual assault, and asked to voluntarily provide samples to the police. There is no indication of whether the police provided any details of the offence under investigation, such as when or where it took place. However, this is not a case in which the accused only learned of the offence 25 years after the fact.
[58] Second, and more importantly, courts have ruled that memory loss is not, itself, a basis for a stay of proceedings. It is inevitable that memories will fade with the passage of time. If the charge had been laid two years or five years after the event, there would still likely be some memory loss associated with that time period. The effect is more pronounced after 25 years, but this does not necessarily prevent the accused from defending himself. The onus rests upon the Crown to prove guilt beyond a reasonable doubt. Whatever the state of his memory, the accused is able to challenge the case for the Crown through cross-examination of witnesses. If anything, the passage of time can inure to the benefit of the accused, given the Crown’s duty to prove the crime.
[59] In R. v. Morrissey, 2007 ONCA 770, the accused had no memory of events prior to and at the time of the shooting giving rise to his charge of murder. Blair J.A., at para. 75, found that the lack of memory did not justify a stay of proceedings:
There are strong policy reasons for concluding that a claim of memory loss respecting the critical events in question, by itself, ought not to provide the foundation for a stay of proceedings -- regardless of the cause of that disability. For one thing, such a loss of memory is a prevalent claim (30-40 per cent of people charged with a violent crime, perhaps more, claim to be affected by amnesia in relation to the crime). [See Note 19 below] For another, it is an easy claim to make and a difficult one to disprove: see R. v. H. (L.J.), supra, at p. 89 C.C.C. If a claim of amnesia is available to support an abuse of process application under the Charter in cases such as this, it could lead to many cases being stayed in a manner that is not in the public interest.
[60] The requisite element of prejudice has not been made out in this case.
Lost Evidence
[61] The final issue to be addressed concerns the missing evidence control sheet. The evidence control sheet has gone missing. No one knows where it is. No one knows when or how it went missing. All that is known is that it cannot be provided to the defence. The accused argues that the state is responsible for the loss of this document and that, without it, he is hampered in his ability to advance his position on pre-charge delay.
[62] In R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.), the Supreme Court of Canada held that lost evidence is not always about fault, or wrongdoing. Sometimes, evidence goes missing for reasons that cannot be discerned. To err is human and so too is the penchant to sometimes lose things of value. As it was put in La at para. 20:
…Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.
[63] Something obviously went wrong in this case. The evidence control sheet should have been retained along with the other case material. However, it does not follow that there was negligence or wrongdoing in the loss of the document. The evidence reveals that the case material was moved to a different building when the police service changed locations. There was a meticulous process in place for transferring investigative files.
Before that, the case material was kept in the vault. It is certainly troubling that the document cannot be located. However, it is not a basis on which to grant a constitutional remedy.
[64] The evidence control sheet was not primary evidence. It was an instrument used by police to keep track of the physical evidence that was seized. The physical evidence is still available. The document was in many respects akin to an officer’s notebook. It supplemented Officer Brown’s notes about what he did and did not do with the t-shirt in the 1990s. The officer testified about his memory of the events. There were certainly gaps in his recollection. The control sheet may or may not have refreshed the officer’s memory on pertinent issues. However, there is no basis for concluding that the document would have helped, rather than hurt, the defence position.
[65] In order to justify a remedy, there must be an air of reality to the assertion that the missing evidence would have assisted the accused in a material way. The accused must be able to establish that, without the lost evidence, he is unable to put forward his defence. It is not enough to show that the loss of evidence makes it more difficult to advance the defence. The mere possibility that the evidence would assist the defence is not enough to make out a violation: see R. v. Abedi, 2017 ONCA 724; R. v. Bradford, [2001] O.J. No. 107 (C.A.).
[66] If the evidence control sheet was available, it would presumably reveal any testing that was done or not done on the t-shirt. According to Officer Brown he may have noted down the reason for the seizure of the t-shirt. We can infer that it was seized because the victim was wearing it at the time of the crime. As a matter of logic, one might presume that, if there was a visible stain on the t-shirt, or a luma light had detected biological material, the t-shirt would have been among the exhibits sent to the CFS. It is, I suppose, possible that the officer detected biological material and did not send the t-shirt. If that occurred, one would have to question the competence of that decision. But there is no basis for believing that that occurred.
[67] The state is responsible for losing the evidence control sheet. But it is highly speculative to conclude that the control sheet would disclose negligent police work. There is no foundation for believing that officers knew there to be evidentiary value to the t-shirt yet declined to send it in for testing. If anything, the other evidence tends to rebut this claim. Officer Brown testified that had he discovered biological material on the t-shirt, he would have asked to submit it to CFS. Police were anxious to discover physical evidence that would identify the perpetrator.
[68] In the final analysis, the defence has failed to establish that the document would have assisted the accused in making out a Charter violation. I appreciate that this is something of a “catch-22”. The defence does not know what was in the missing pages. But that is also the critical point. The loss of evidence that would not make a difference, or that would support the case for the Crown, does not impede the right to full answer and defence. Absent a demonstrated interference with the ability to mount the case for the defence, there is no basis for a stay of proceedings.
Conclusion
[69] For all of the above reasons, the application for a stay of proceedings based on pre-charge delay and lost evidence is dismissed. The matter will proceed to trial for continuation.