W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.

CITATION: R. v. J.P., 2009 ONCA 850

DATE: 20091202

DOCKET: C49816

COURT OF APPEAL FOR ONTARIO

Moldaver, Goudge and Rouleau JJ.A.

BETWEEN:

Her Majesty The Queen

Appellant

and

J.P.

Respondent

Frank Au, for the appellant

Paul Slocombe, for the respondent

Heard and released orally: November 20, 2009

On appeal from the stay of proceedings ordered by Justice Stephen O’Neill of the Superior Court of Justice dated December 3, 2008.

ENDORSEMENT

[1] The respondent was charged with several sex-related offences involving the daughter of his common law spouse. He was committed for trial on the strength of the daughter’s evidence in which she claimed that between the ages of 12 and 16, the respondent molested her on eight separate occasions.

[2] At trial, the respondent moved to have the charges against him stayed on the basis that he had been deprived of his right under s. 7 of the Charter to make full answer and defence due to the loss of a portion of the complainant’s testimony from the preliminary inquiry. The trial judge acceded to the respondent’s request and stayed the proceedings. The Crown appeals from that decision.

[3] With respect, the trial judge’s ruling cannot stand. He did not approach the s. 7 issue as he should have, and this skewed his analysis and conclusion.

[4] The loss of a portion of the complainant’s evidence occurred due to an unexpected and unforeseeable defect in one of the tapes used to record the evidence from the preliminary inquiry. There is no suggestion that the missing tape was deliberately destroyed or tampered with or altered in any fashion; nor is it suggested that the defect in question was part of a larger systemic problem that the responsible ministry was aware of but chose to ignore. As the trial judge himself observed, “it is a rare happening where preliminary hearing transcript evidence is lost.”

[5] In the circumstances, the missing transcript cannot reasonably be attributed to “unacceptable negligence” on the part of the Crown. On the contrary, the Crown provided a satisfactory explanation for its loss.

[6] That being so, in order to establish a breach of his right to make full answer and defence under s. 7, the respondent had to do more than show that the lost transcript was, in the words of the trial judge, “likely relevant and material” or “logically probative to issues at trial, including the credibility and reliability of the complainant.”

[7] An accused’s right to make full answer and defence is not automatically breached every time he or she is deprived of relevant information. Rather, as the Supreme Court stated in R. v. La (1997), 1997 309 (SCC), 116 C.C.C. (3d) 97 at paras. 24 and 25, where the Crown has met its duty of explaining the circumstances of the loss of any missing evidence, in order to make out a breach of s. 7 on the ground of lost evidence, “the accused must establish actual prejudice to his or her right to make full answer and defence.”

[8] That is not an easy task. Sopinka J. made this clear at para. 24 of La where he stated:

Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. In such circumstances, a stay may be the appropriate remedy...

[9] At para. 27 of the same decision, Sopinka J. made it equally clear that in most cases, the decision whether to stay the proceedings should be left to the end of the trial after all of the evidence has been heard. This court made the same point in R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 at para. 18.

[10] The trial judge in the instant case made no mention of La. Rather, he applied the principles set forth in R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, an altogether different case in which the missing documents had been deliberately destroyed by the Sexual Assault Crisis Centre as a matter of policy to avoid having to produce them to accused persons. Regrettably, this led the trial judge into error, both in terms of his analysis and conclusion.

[11] The Crown makes a compelling argument that in the circumstances of this case, the missing evidence occasioned no breach of the respondent’s right to make full answer and defence and certainly none that would warrant the exceptional remedy of a stay of the proceedings. We agree. In this regard, we note, among other things, the following factors:

• The complainant is available to testify at trial.

• The respondent has had full disclosure of the Crown’s case including the complainant’s prior video-taped statement which can of course be used for cross-examination purposes.

• No suggestion has been made that the complainant’s testimony at the preliminary inquiry differs markedly or at all from the information she provided in her video-taped statement.

• Notes were taken of the complainant’s evidence at the preliminary inquiry and to the extent that significant inconsistencies in her trial testimony are alleged, other means could potentially be used to explore them, including calling persons who were present at the preliminary hearing and heard the complainant testify.

[12] In short, on the record as it presently exists, there is no basis for concluding that the respondent cannot receive a fair trial on account of the missing evidence. Should circumstances change, the respondent will of course be at liberty to renew his application.

[13] In the result, we would allow the appeal, set aside the stay of proceedings and order a new trial.

Signed: “M.J. Moldaver J.A.”

“S. T. Goudge J.A.”

“Paul Rouleau J.A.”