Her Majesty the Queen v. John Guy Bradford [Indexed as: R. v. Bradford]
52 O.R. (3d) 257
[2001] O.J. No. 107
Docket No. C34121
Court of Appeal for Ontario
Finlayson, Weiler and Abella JJ.A.
January 19, 2001
- Application for leave to appeal to the Supreme Court of
Canada dismissed June 11, 2001 (Gonthier, Major and Binnie
JJ.). S.C.C. File No. 28474. S.C.C. Bulletin, 2001, p. 916.
Charter of Rights and Freedoms--Remedies--Stay of proceedings --Lost evidence--Accused charged with indecent assault and sexual assault--Trial judge erred in granting stay of proceedings on ground that accused suffered actual prejudice as result of loss by police of signed statement of complainant --Task of defence made more difficult because of missing statement but trial not fundamentally unfair--Loss or destruction of complainant's statement not constituting abuse of process--Canadian Charter of Rights and Freedoms, ss. 7, 24(1).
Charges of indecent assault and sexual assault against the accused doctor were stayed by the trial judge on the basis that the accused's right under s. 7 of the Canadian Charter of Rights and Freedoms to make full answer and defence had been violated by the loss of a signed statement by the complainant. The offences were allegedly committed between 1980 and 1984. The complainant gave an oral statement to the police when the incidents were reported in 1984. The particulars of that statement were recorded by the investigating officer in an occurrence report prepared within several hours of the statement. Shortly afterwards, the investigating officer asked the complainant questions, recorded her answers and had her read over the statement that had been given in this manner and sign it. The officer then allowed the accused to read the signed statement. No charges were laid. In 1991, the complainant again asked the police to lay charges. A taped statement which she gave to the police at that time was preserved. Charges were not laid. The complainant filed a complaint with the College of Physicians and Surgeons and disciplinary proceedings were brought against the accused in 1995. The complainant gave evidence in those proceedings. The accused was found guilty of professional misconduct and his licence to practise medicine was revoked. The charges in question were then laid. The signed statement given by the complainant to the police in 1984 was not available for disclosure to the accused. There was no direct evidence as to what happened to it, but it was presumably destroyed by the police either because there was no policy with respect to keeping statements where no charges were laid, or as part of a routine purge of inactive files. The defence had available to it three other statements of the complainant (the 1984 occurrence report, statements made to her therapist in 1987, and the 1991 statement to the police), plus two prior occasions on which she gave evidence under oath (before the College of Physicia ns and Surgeons and at the preliminary inquiry). The tenor of the defence was that, as time went on, the complainant exaggerated what had happened. In granting the stay of proceedings, the trial judge found that the loss of the signed statement was due to unacceptable negligence and that actual and severe prejudice resulted from the loss. The Crown appealed.
Held, the appeal should be allowed.
It was open to the trial judge to conclude that the loss of the signed statement was due to unacceptable negligence.
In assessing prejudice to an accused's right to make full answer and defence, the trial judge should have considered the lost statement in the context of the rest of the evidence and the position taken by the defence. The trial judge erred in considering the lost statement in a vacuum. The reasons of the trial judge did not demonstrate a consideration of the five times the complainant described the incidents and whether they were an adequate substitute for the loss of the signed statement on which to challenge her credibility. Moreover, the trial judge apparently failed to take into consideration the fact that the accused saw the signed statement before it was lost.
While the task of the defence was made more difficult because of the missing signed statement, the accused's trial was not fundamentally unfair. In the circumstances, the administration of justice was better served by permitting the prosecution to continue rather than by staying the proceedings and effectively acquitting the accused. The facts did not warrant the issuance of an order overriding the manifest societal interest in the effective prosecution of criminal charges. This was not one of those clearest of cases in which a stay of proceedings is necessary for the interests of justice.
The loss or destruction of the signed statement did not constitute an abuse of process. There was no suggestion of prosecutorial misconduct or bad faith in the destruction of the statement.
APPEAL by Crown from order staying proceedings.
Cases referred to Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, 131 F.T.R. 230n, 151 D.L.R. (4th) 119, 218 N.R. 81, 118 C.C.C. (3d) 443, 10 C.R. (5th) 163, 14 C.P.C. (4th) 1; Elsom v. Elsom, 1989 100 (SCC), [1989] 1 S.C.R. 1367, 37 B.C.L.R. (2d) 145, 59 D.L.R. (4th) 591, 96 N.R. 165, [1989] 5 W.W.R. 193, 20 R.F.L. (3d) 225; R. v. A. (H.), [1998] O.J. No. 4351 (C.A.); R. v. B. (F.C.) (2000), 2000 NSCA 35, 182 N.S.R. (2d) 215, 563 A.P.R. 215, 73 C.R.R. (2d) 221, 142 C.C.C. (3d) 540 (C.A.) [leave to appeal to S.C.C. denied [2000] S.C.C.A. No. 194]; R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, 31 O.R. (3d) 575n, 142 D.L.R. (4th) 595, 207 N.R. 321, 41 C.R.R. (2d) 189, 112 C.C.C. (3d) 289, 4 C.R. (5th) 139; R. v. D. (J.), [1996] O.J. No. 1907 (C.A.); R. v. Daye, [1999] O.J. No. 1994 (C.A.); R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, 51 Alta. L.R. (3d) 181, 148 D.L.R. (4th) 608, 213 N.R. 1, [1997] 8 W.W.R. 1, 44 C.R.R. (2d) 262, 116 C.C.C. (3d) 97 , 8 C.R. (5th) 155; R. v. Mattingly (1995), 1995 8917 (ON CA), 31 C.R.R. (2d) 361, 40 C.R. (4th) 376 (Ont. C.A.); R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 75 Alta. L.R. (3d) 1, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)); R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1; R. v. Stinchcombe, 1995 130 (SCC), [1995] 1 S.C.R. 754, 96 C.C.C. (3d) 318, 38 C.R. (4th) 42 Statutes referred to Canadian Charter of Rights and Freedoms, s. 7
Laura Hodgson, for appellant. Alison Wheeler, for respondent.
The judgment of the court was delivered by
WEILER J.A.: --
Overview
[1] On March 28, 2000, Borkovich J. ordered that charges of indecent assault and sexual assault against the respondent be stayed on the basis that the respondent's right to make full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms (the "Charter") had been breached. The breach is said to have arisen from the inability of the police to satisfactorily explain the loss of the complainant's signed statement that had been given to a police officer a few days after her initial oral statement. The complainant's prior oral statement, three subsequent statements and the complainant's evidence at the preliminary inquiry were all available on which to cross-examine the complainant. The trial judge held, however, that the loss of the complainant's signed statement materially affected the accused's ability to cross-examine her with respect to inconsistencies in her evidence and that the only appropriate remedy was a stay of the proceedings. The Crown appeals from this de cision.
[2] It is the Crown's position that the trial judge erred in his conclusion that:
(i) the loss of the signed statement was due to unacceptable negligence; and
(ii) actual prejudice resulted from the loss of the statement.
Alternatively, the Crown submits that the trial judge erred in the exercise of his discretion in finding that this was one of the "clearest of cases" warranting a stay of proceedings.
The Applicable Law
[3] An appellate court will only be justified in interfering with a trial judge's discretionary decision to order a stay of proceedings if ". . . the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice": Elsom v. Elsom, 1989 100 (SCC), [1989] 1 S.C.R. 1367 at p. 1375, 37 B.C.L.R. (2d) 145, and as quoted with approval in R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80 at p. 110, 112 C.C.C. (3d) 289 at p. 309; and Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391 at p. 427, 118 C.C.C. (3d) 443 at p. 470.
[4] The current state of the law respecting the impact of lost evidence and when a stay should be granted is succinctly summarized in R. v. B. (F.C.) (2000), 2000 NSCA 35, 182 N.S.R. (2d) 215, 142 C.C.C. (3d) 540 at pp. 547-48 (C.A.), 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 45 (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1; R. v. Egger, 1993 98 (SCC), [1993] 2 S.C.R. 451, 82 C.C.C. (3d) 193; R. v. Stinchcombe (No. 2), supra; R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, 96 C.C.C. (3d) 225; R. v. O'Connor [(1995), 1995 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.
[5] Earlier, in R. v. O'Connor, [1995 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1] the two criteria for a stay referred to in the eighth point are expressed by Professor Paciocco and adopted by L'Heureux-Dubé J., at p. 465 S.C.R., p. 41 C.C.C., as comprising:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
[6] In assessing the prejudice to the accused's right to make full answer and defence as secured by s. 7 of the Charter, it is important to bear in mind that the accused is entitled to a trial that is fundamentally fair and not the fairest of all possible trials. As stated by McLachlin J. in O'Connor, supra, at p. 517 S.C.R., pp. 78-79 C.C.C.:
. . . the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer, [1995 70 (SCC), [1995] 3 S.C.R. 562]. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.
[7] In a similar vein, Justices McLachlin and Iacobucci commented in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 at p. 718, 75 Alta. L.R. (3d) 1, that fundamental justice embraces more than the rights of the accused and that the assessment concerning a fair trial must not only be made from the point of view of the accused but the community and the complainant. The fact that an accused is deprived of relevant information does not mean that the accused's right to make full answer and defence is automatically breached. [See Note 1 at end of document] Actual prejudice must be established: Mills, supra, pp. 719-20, citing R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680 at p. 693, 116 C.C.C. (3d) 97.
[8] The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. 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. For example, in B. (F.C.), supra, the court held that where the complainant's signed statement was lost, but a typed transcription that was probably accurate existed, the trial judge erred in entering a stay of proceedings. In R. v. D. (J.), a judgment of the Ontario Court of Appeal, delivered May 30, 1996, [1996] O.J. No. 1907, although the complainant's statement was lost, the officer's notes were available, and the court held that it was speculative whether there were any inconsistencies between the complainant's statement and the officer's notes.
[9] In addition to considering whether a contemporaneous oral statement or a copy of the written statement of the accused exists, the courts will consider, generally, all the surrounding background facts and circumstances of the complainant's evidence (R. v. A. (H.), a judgment of the Ontario Court of Appeal, delivered October 23, 1998, [1998] O.J. No. 4351 at para. 13). The decision whether or not to grant a stay is very fact specific. Other factors that have emerged from the cases in deciding whether to grant a stay on account of lost evidence are:
-- the emotional or psychological status of the complainant at the time the allegations were made (A. (H.), supra; La, supra);
-- the time when the complaints were made in relation to when the allegations occurred, i.e. before or after therapy (A. (H.), supra);
-- whether the investigating officers who took the statement were available for questioning (B. (F.C.), supra, at p. 553);
-- whether the complainant made other statements prior to trial that the defence can use to attack her credibility (La, supra, at pp. 696-97 S.C.R., p. 111 C.C.C.);
-- whether the Crown concedes that proposed substitute evidence is a statement of the complainant and may be used for the purposes of cross-examination of the complainant (B. (F.C.), supra, at p. 554);
-- whether the statements that do exist appear to contain the same amount of detail as the lost statement (La, supra, at pp. 696-97 S.C.R., p. 111 C.C.C.; B. (F.C.), supra);
-- the extent of the complainant's present ability to recall the contents of the earlier statements (A. (H.), supra, at para. 13);
-- the complainant's present ability to recall the details surrounding the various alleged incidents of abuse (A. (H.), supra; R. v. Daye, a judgment of the Ontario Court of Appeal, delivered June 7, 1999, [1999] O.J. No. 1994, para. 4);
-- any apparent or potential inconsistencies in the complainant's trial testimony or between her other statements and her evidence at the preliminary hearing (A. (H.), supra; R. v. Mattingly (1995), 1995 8917 (ON CA), 40 C.R. (4th) 376, 31 C.R.R. (2d) 361 (Ont. C.A.));
-- whether the accused was made aware of the contents of the lost evidence before its destruction or disappearance (B. (F.C.), supra, at p. 554);
-- whether the Crown gave any undertaking to the accused at the time that matters would not proceed with the result that the accused did not retain his own records (B. (F.C.), supra, at p. 550); and
-- what other witnesses had to say at the time in support or contradiction of the complainant's allegations (B. (F.C.), supra, at p. 553; Daye, supra, at para. 2).
[10] With these considerations in mind, I will now address the facts of this case and the reasons of Borkovich J.
The Facts
[11] In March 2000, the respondent, a physician, went on trial before a judge and jury on charges of sexually assaulting the complainant, his niece. The complainant's parents were separated and she testified that she often visited her aunt, the respondent's wife, on weekends and holidays. On three occasions between 1980 and 1984, the complainant testified that the respondent sexually assaulted her, the last occasion being when she was a child of approximately nine years old.
[12] The first occasion was alleged to have taken place in the bedroom of the respondent's home while they were on the bed watching television. After her aunt, the respondent's wife, left the house to run an errand, the respondent got off the bed, knelt down beside her and proceeded to remove her clothing. She testified that she was wearing underwear, skating tights, socks, blue corduroy pants and a sweatshirt. She explained that she could specifically remember her clothing because the respondent counted the clothes as he removed them and commented on how difficult they were to remove. The complainant testified that once the respondent had removed the clothing from her lower body, he licked his fingers and began to fondle her vagina. She then told him that she had to use the washroom. She went to the bathroom, locked the door and sat on the bathroom floor. When the respondent knocked on the bathroom door, she asked him for her pants back and he told her that she could come and get them. When she retrieved her clothing, she said the respondent told her "I don't do this to hurt you. I do it because most girls like it."
[13] The second incident allegedly took place at the respondent's office when they stopped there on the way back from a grocery store. The complainant testified that the respondent undid the straps of her sundress, took off her panties and lay on top of her on the floor. She further testified that he rubbed her vagina with his fingers and that this was later replaced by a single hard object, his penis. She could not recall whether or not there had been penetration.
[14] The third incident allegedly took place in the basement of the respondent's home. At trial, the complainant testified that she was sitting next to the respondent on the pull-out couch in the basement. The respondent put his hands under the elastic of her figure skating suit. The complainant said that she loudly told him to stop and tried to push his hands away. She recalled the incident coming to an end when Maureen Boldt, her father's girlfriend at the time, came downstairs. At that point, the respondent went upstairs. The complainant could not remember what she told Maureen Boldt but recalled her saying that she would tell her father.
[15] In addition to the three incidents, the complainant testified at trial that when she was about five years old the respondent kissed her and put his tongue in her mouth. He also was alleged to have come into her bedroom at night and put his hands under her night gown. On one occasion, he was alleged to have grabbed her inappropriately when she was sitting in the back of the car; he was in the front passenger seat and her aunt was driving. These additional incidents were not disclosed in the complainant's initial oral statement.
[16] After the third incident, which allegedly took place on March 25, 1984, the complainant's mother called the police. The complainant gave an oral statement to Officer Wide on March 27, 1984. The particulars of her statement were recorded by the officer in an occurrence report prepared within one or two hours after her oral statement. On April 1, 1984, Officer Daniels followed up the investigation by asking the complainant questions and recording her answers. The complainant read over the statement that had been given in this manner and signed it.
[17] Officer Daniels then went to the respondent's home and showed him the signed statement. After reading it, Officer Daniels testified that the respondent said, "If I had to I could explain the first two. The third is ridiculous." The position of the respondent was one of innocent association with no inappropriate contact of a sexual nature. This was also the respondent's position during his testimony at trial.
[18] Maureen Boldt offered some corroboration of this third incident and was interviewed over the telephone by Officer Daniels. She gave Officer Daniels an oral statement that was preserved as part of his occurrence report.
[19] All of the relevant material concerning the case, including the signed statement, was forwarded by the police to the assistant Crown attorney. After reviewing the material, he decided not to proceed with the charges. The police advised the respondent that they would not be proceeding with charges but that they would retain the complainant's statement and that it could be used as similar fact evidence in the event of a later complaint.
[20] At trial, there was no direct evidence as to what happened to the signed statement after it had been forwarded to the Crown attorney. Through the evidence of Officers Wide and Daniels, the Crown offered an "educated guess" as to what could have happened after the decision not to prosecute had been made. Specifically, the statement could have been returned to the police as was the usual practice. After that, it could have been destroyed by the police either because there was no policy with respect to keeping statements relating to occurrences that were reported but not proceeded with, or as part of a routine purge of inactive files at a later date. A statement given by the complainant's mother was also lost or destroyed.
[21] In 1987, the complainant made certain statements to Dr. Battigelli concerning the allegations of sexual assault. It was the position of the respondent that at that time she gave a more extended version of the allegations than she had given to the police in 1984.
[22] In 1990, when she was 15, the complainant called the respondent and asked him for money. She told the respondent that she wished to move out of her home and needed money for rent. According to an agreed statement of facts, between September of 1990 and June of 1991, the respondent provided the complainant with a total of $2,890. In September 1990, the first occasion he gave her money, the respondent met the complainant in person and gave her $1,200 in cash. On four other occasions, he deposited money to a bank account in her name. The respondent testified that he did not tell his wife about these transactions.
[23] In 1991, when the complainant was 16 years old, she approached the police and again requested that charges be laid. At the time, she gave a taped statement that was preserved. After this, the complainant was advised to lay charges privately if she wished to proceed.
[24] In 1995, as a result of a complaint filed by the complainant, the respondent faced charges brought by the College of Physicians and Surgeons. The complainant gave evidence in that proceeding. The College found the respondent guilty of professional misconduct and revoked his licence to practise medicine. An appeal by the respondent from the findings of the College was dismissed by the Divisional Court in 1997. While the decision of the College was under appeal, a newspaper story concerning the respondent appeared. Other persons read the story and came forward and made allegations of sexual assault. The police proceeded with charges against the respondent in relation to complaints made by four other complainants. Three of the charges were severed at the respondent's preliminary hearing. The charge arising from allegations by a fourth complainant, who was a child, was initially joined to the complainant's allegations and later severed.
[25] At the respondent's trial on the charges relating to his niece, his counsel chose to elicit the details of the complainant's disclosure to Officers Wide and Daniels, Dr. Battigelli, her 1991 taped statement and her evidence before the College in order to show that her statements to others and her evidence at trial were products of exaggeration over a long period of time. According to the respondent, the value of the complainant's statements lay not in their consistency, but in the inconsistency between them and her evidence at trial.
[26] At trial, the complainant could not recall what she had said to the officers in 1984. Although the complainant recalled reading over a statement and signing it, she could not recall whether she had participated in one or two interviews with Officers Wide and Daniels.
[27] In answer to questions by the defence during the voir dire held to determine whether the charges should be stayed, Officer Daniels testified that the complainant's written statement "was very much aligned to what Officer Wide had in his [occurrence] report." He further testified that "there wasn't really any greater detail than what Officer Wide had in his report" in the written statement.
The Submissions of Counsel and the Trial Judge's Decision
[28] In his submissions to the trial judge, the respondent's counsel stated:
I am stuck with the fact that I have an occurrence report with oral conversations under s. 11. She (the complainant) says I don't remember saying those things, so I really can't do much of anything. I am stuck with that. She said I can't remember what I told the police in my signed statement.
What we see in the occurrence report version, in my submission, is a significantly reduced description of events than that which she gives at trial. The incident in the doctor's office has no reference to fondling of the vagina. I think the phrase is used "he just touched my vagina with his penis." Although I appreciate it is in the context of taking off clothing, but part of the allegation is the touching of the vagina in the incident. And I might say that it is conceded that there may have been inadvertent or accidental contact between the exposed lower half of the body of the accused and the body of the complainant, not in the context of disrobing her. With no touching of the vagina, that is not part of the doctor's explanation in any way. So if he did it, he can't account for it by saying it happened accidentally. So a very significant part of the doctor's office incident is the allegation of the touching of the vagina. So if she adds that to the allegations that is quite material to the position of the defence.
[29] The Crown submitted that the occurrence report, prepared shortly after the complainant had been interviewed and based on notes of the interview on the scratch pad, was an adequate substitute for the missing signed statement. He stated:
In fact, you should also note that Mr. Manishen (defence counsel) read the whole occurrence report to the witness [police officer] at trial and got him to admit its accuracy. Thereby leaving open the argument to the jury that there were prior oral inconsistent statements made by the complainant. The Crown took no objection to that procedure, and in the circumstances of the destruction of the original statements it was only right that we take no objection to that and Mr. Manishen should be entitled to use whatever inconsistencies could be found in the occurrence report to attack the credibility of the complainant.
The possibility of inconsistencies that he would probably be able to argue to the jury were there, whether the jury accepts that they were or not is up to them, but this is what I expect to hear from him: That in the occurrence report she says that he touched her crotch with his penis, whereas in the evidence there is further details of touching with the fingers on the vagina which is not found in the occurrence report.
In the occurrence report with respect to the incident with the robe, (sic the bedroom incident) the doctor walked into the room in the occurrence report, whereas in the evidence at trial the doctor was already on the bed with the complainant when Ms. Muma left.
In the occurrence report there is an allusion with respect to the robe incident that he just took the pants and underwear off, and, of course, at trial we hear much more graphic detail of fondling on the bed by the accused. Again that is an inconsistency he can suggest to the jury.
In the occurrence report she is said to have reported that I did not do it sexually that is what the accused said to her after the incident on the bed. Again that is denied as anything that he said to her in evidence. So there is another possible inconsistency that the defence can marshal in argument to the jury.
At trial the complainant says I don't remember with respect to what happened and in the occurrence report the complainant indicated that she told what happened. And I am referring to Maureen Boldt. At trial the complainant says I don't remember whether I said anything to Maureen Boldt. In the occurrence report she clearly is reported to have said I told Maureen Boldt what happened. Now I don't know whether that refers back in time to the most serious incidents or whether that just refers to the last incident.
My point, your Honour is there were several inconsistencies explored by the defence with the use of Wide's occurrence report. Also it is open to my friend to ask your Honour to instruct the jury on those inconsistencies, as they tell against the complainant.
[30] After hearing the submissions of counsel, Borkovich J. ruled on the motion for a stay. In his reasons, he first reviewed the background facts. He then dealt with the first issue, namely, whether there had been a breach of s. 7 of the Charter. After referring to R. v. Stinchcombe, 1995 130 (SCC), [1995] 1 S.C.R. 754, 96 C.C.C. (3d) 318, and La, supra, he concluded:
On the basis of the evidence, I have concluded that the signed statements here were in the possession of the Crown Attorney's office. The evidence of Daniels with respect to his belief that they were destroyed as part of the department's policy in that regard is pure speculation. There has been no evidence with respect to the Crown's possession of the documents.
I have, therefore, concluded that the Crown's failure to produce the statements is due to unacceptable negligence and, accordingly, the accused has established a breach under s. 7 of the Charter.
[31] The trial judge then dealt with the question of whether a stay was appropriate:
Having decided that there has been a s. 7 Charter breach, then a stay of proceedings will be appropriate when two criteria have been fulfilled.
The first is the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome.
Secondly, no other remedy is reasonably capable of removing the prejudice.
With respect to criterium [sic] two, in this case there is no other remedy reasonably capable of removing the prejudice except for a stay of proceedings.
With respect to criterium [sic] one, this is a case where the complainant's credibility and the reliability of the complainant's evidence is the basis of the Crown's case. The lack of the complainant's statement has materially affected the accused's ability to cross-examine the complainant with respect to inconsistencies in her evidence. During the course of the cross-examination the complainant has answered on numerous occasions to the effect "I do not remember" or "I do not recall". I have concluded that the ability of the accused to make full answer and defence has been severely prejudiced.
I am aware that a stay of proceedings ought to be granted only in the clearest of cases. This is one of those cases.
Analysis
(i) Was the signed statement of the complainant lost due to unacceptable negligence?
[32] The Crown submits that reasonable steps were taken to preserve the evidence bearing in mind that the police are not expected to preserve everything on the off-chance it will be relevant at some time in the future. The difficulty with this submission is that, as the trial judge observed, what happened to the complainant's written statement and when it disappeared is a matter of speculation. The fact that the police told the accused the statement could be used as similar fact evidence in the future is indicative that the officers realized that the statement might have future potential use. For this reason alone, they should have taken steps to preserve it. I note that, at trial, the Crown conceded that its submission on this point was weak, although this was not the situation on appeal. In my opinion, it was open to the trial judge to conclude that the loss of the statements was due to unacceptable negligence and therefore there is no basis for interfering with his decision.
(ii) Was there actual prejudice to the accused's right to make full answer and defence because the complainant's statement was lost?
[33] The trial judge held that the lack of a signed statement severely prejudiced the defence from making full answer and defence. Admittedly, the loss of the signed statement occasioned some prejudice to the defence. The oral statement was first in time when the events alleged were freshest in the mind of the complainant. The question for the trial judge was whether the missing statement so prejudiced the defence that to allow the case to go to the jury would have resulted in the denial of a fair trial.
[34] The tenor of the defence was that, as time went on, the complainant exaggerated what had happened in each of the three sexual assaults. If the signed statement was available, two alternatives were possible. If the complainant's signed statement contained less information than the prior oral statement, it would have undermined the defence position that the complainant embellished what took place each time she repeated her allegations. The extent of detail in the signed statement could also have been explained by the question and answer format that was used in obtaining the statement.
[35] If the signed statement contained more or different detail than the oral statement that had been given, the defence would have been able to cross-examine on these inconsistencies and call her credibility or reliability into question. However, the defence had available to it the other three statements of the complainant (1984 occurrence report, statements made to her therapist in 1987 and 1991 statements to police), plus the two prior occasions on which she gave evidence under oath (College of Physicians and Surgeons hearings and preliminary inquiry). In fact, the defence used this material to effectively cross- examine the complainant. If the complainant's signed statement contained additional information that was consistent with details alleged in her later statements, this information would not have been of much more help to the defence.
[36] Furthermore, due to the short lapse of time between the oral statement and the subsequent signed statement, and Officer Daniels' evidence as to the respondent's comments when he saw the statement, it seems likely that the two statements were basically the same. The submission of the defence was that it hoped to have the complainant adopt her signed statement. If the signed statement was basically the same as the oral statement, the complainant's lack of memory concerning whether the alleged assault in the respondent's office took place in 1983 or 1984, whether the office had a bathroom, whether the respondent was on crutches at the time, and the extent of the vaginal touching, would not have been assisted, because according to the testimony of Officer Wide and information in the occurrence report, none of these details were in the complainant's initial oral statement. Lastly, had the complainant been in a position to adopt her written statement, the allegations respecting the three incidents of sexual assault most probably would have been simply confirmed by her. The further allegations of sexual assault made at trial, such as tongue kissing, were less serious than the allegations that were initially made and therefore could not have occasioned prejudice to the respondent.
[37] Most importantly, the respondent saw and read the signed statement before it disappeared. He testified at trial and would have been in a position to testify as to his recollection of what the signed statement contained had he been asked by either counsel.
[38] As has been noted, the complainant's oral statement, which preceded the written statement, was used to confront her with inconsistencies respecting her evidence at trial. The other statements the complainant made in 1987 and 1991, and her evidence at the proceedings before the College in 1995, as well as at the preliminary inquiry in 1998, were all used to attack her credibility. The trial judge did not consider whether, having regard to the tenor of the defence, the combined effect of the evidence that remained on which to cross-examine enabled the defence to make full answer and defence. As is evident from the case law reviewed earlier in my decision, it was imperative that the trial judge consider the lost statement in the context of the rest of the evidence and the position taken by the defence. Instead, the lost statement appears to have been considered in a vacuum. In that respect, the trial judge erred.
[39] In coming to my conclusion, I do not mean to suggest that a trial judge must specifically state that he or she is considering whether the evidence that does exist is sufficient to attenuate the prejudice caused to the defence by the lost evidence. Some assessment of prior statements is, however, critical. For example in Daye, supra, the entire original file had been shredded. At trial, the complainant, who had a history of manipulation and lying, could not recall the respondent smearing seminal fluid on her chest and asking her to fellate him as she had testified at the preliminary inquiry. This court held, at para. 5, that, "[b]ased on the whole of the evidence and the serious discrepancy noted, the trial judge was satisfied, on a balance of probabilities that the complainant's original sworn statement probably contained material that the respondent could have used to challenge her credibility." The reasons, read as a whole, indicate that the trial judge was satisfied the evidence that did exist did not provide an alternate source of information sufficient to make up for the lost evidence. This is so even though the trial judge did not specifically state this. The trial judge did, however, refer to the complainant's prior statement given at the preliminary inquiry. The court was satisfied that the trial judge had applied the correct legal principles.
[40] Regrettably, as I have indicated, I am not satisfied that in this case the reasons of the trial judge as a whole demonstrate a consideration of the other five times the complainant described the incidents and whether they were an adequate substitute for the loss of the signed statement on which to challenge her credibility. Nor does the fact that the respondent saw the signed statement before it was lost appear to have been taken into consideration by the trial judge.
[41] It therefore falls to this court to assess anew whether the stay should be granted. In doing so, I propose to be guided by the factors I outlined at the beginning of these reasons.
Should a Stay Have Been Granted?
[42] When the complainant gave her initial oral statement, she was calm and she had not yet seen any therapist. Officer Daniels, the officer who took the signed statement that was lost, testified that the signed statement contained no greater detail of the alleged sexual assaults than the complainant's initial oral statement. The signed statement was shown to the accused. The Crown conceded that the complainant's oral statement as contained in the occurrence report could be used as a statement of the complainant for purposes of cross- examination. The fact that the complainant has no recollection of what she told the police in her initial oral statement or her signed statement is an important factor. It is not, however, the only factor. If the signed statement had not been lost, the most that the defence could hope for was to have the complainant adopt the statement as her evidence at trial. The fact that the complainant's initial description of the various incidents alleged did not contain significant details she alleged in later statements and at trial was nevertheless established. The cross-examination on the complainant's 1987 oral statement to Dr. Battigelli, the 1991 statement that was taped and transcribed, the complainant's evidence at the hearing of the College in 1995 and the preliminary inquiry in 1998 further enabled the defence to challenge her credibility. Although the complainant gave detailed evidence at trial concerning the alleged incidents, she did not remember a number of details concerning her surroundings at the time of the alleged assaults about which she was asked by the defence. Having regard to the oral statement and to the evidence at trial, it is unlikely, however, that the signed statement would have contributed any appreciation of these details.
[43] The defence submits that the signed statement of the complainant, if adopted by her, would have been of assistance in establishing the year that the incident at the doctor's office took place and whether or not he was on crutches at the time. While this submission is speculative, the complainant did not foreclose the possibility that the events took place in 1983. At trial, the complainant testified that she wasn't sure whether the incident occurred in the summer of 1983 or 1984. She did not deny that if the occurrence took place in 1983, it would have been when the respondent was on crutches with pins in his ankles. In the absence of her original signed statement, the defence could, and did, rely on these admissions to draw out inconsistencies between the statements of the complainant and her testimony at trial.
[44] The Crown gave no undertaking to the respondent that it would not proceed with respect to the charges in the future that could have led to the respondent destroying any notes he may have made at the time he spoke with the police. Indeed, the opposite was suggested. Although the complainant's mother's statement had also been lost or destroyed, no suggestion has been made that her statement was of material import to the defence. Ms. Boldt's statement, given to the police officer shortly after the third alleged assault, was available and was used to cross-examine her.
[45] Depending on the view the jury took of the evidence, the payments made by the respondent to the complainant were evidence of after the fact conduct that supported the complainant's allegations. These payments were a further factor to consider in weighing the societal interest in the continuation of the prosecution.
[46] Based on the above considerations, while the task of the defence was made more difficult because of the missing signed statement, the respondent's trial was not fundamentally unfair. In a situation such as this, the administration of justice is better served by permitting the prosecution to continue in these circumstances rather than by staying the proceedings and thereby effectively acquitting the respondent. The present facts do not warrant the issuance of an order overriding the manifest societal interest in the effective prosecution of criminal charges. Simply, this is not one of those "clearest of cases" in which a stay of proceedings is necessary for the interests of justice. I would therefore allow this ground of appeal.
Abuse of Process
[47] I must also deal with the respondent's alternative claim of abuse of process. It is now well-settled that abuse of process is a separate question from the breach of s. 7 Charter rights. (see R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, 116 C.C.C. (3d) 99, at pp. 690-92 S.C.R., p. 107 C.C.C., paras. 20 and 22). Applying the authorities to the present case, I am of the opinion that the loss or destruction of the complainant's statement does not constitute abuse of process. There was no suggestion of prosecutorial misconduct or bad faith in the destruction of the statement. The facts do not establish that the respondent's trial was such as to violate the principles of justice underlying the community's sense of fair play and decency.
Conclusion
[48] For the reasons given, I would hold that the trial judge erred in principle in granting a stay. Accordingly, I would allow the appeal, quash the order staying the proceedings, and direct that a new trial be ordered.
Appeal allowed.
Notes
Note 1: Other public interests that are recognized as limiting the accused's ability to gain access to potentially relevant information are, for example, the privilege attaching to the identity of police informers, as acknowledged in Mills, supra, at pp. 719-20 S.C.R.