WARNING

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

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2017-09-14

Docket: C60423

Panel: Laskin, Trotter and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Shabir Abedi Appellant

Counsel: Joshua Frost and Eric Neubauer, for the appellant Andrew Cappell, for the respondent

Heard and released orally: September 14, 2017

On appeal from: the conviction entered on May 27, 2014 by Justice Alan Cooper of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] We did not call on the Crown on the trial judge's finding of no unacceptable negligence. In our view that finding was reasonable and we defer to it. The central issue then is whether the loss of the video recording of the complainant's statement was so prejudicial to the defence that it impaired the appellant's fair trial rights.

[2] The appellant submits that he was prejudiced in three ways: because of the loss of the recorded statement itself; because of the nature of the case; and because of the specific contents of the statement.

[3] We do not agree with the appellant's submissions. In our view the defence was not prejudiced by the lost recording.

[4] On the first branch of the alleged prejudice, the appellant would have to show actual prejudice and not simply that the loss of the evidence would have made putting his defence position forward more difficult.

[5] To determine whether actual prejudice has occurred, we must consider whether other evidence containing essentially the same information existed. See R. v. Bradford, 151 CCC (3d) 363 at paras. 7 and 8.

[6] We agree with the Crown that the officer's notes were a sufficient substitute for the lost recording. The notes were contemporaneous, they were detailed about the circumstances of the sexual assault, and the defence did not suggest that the notes were inaccurate or were missing any important details.

[7] On the second branch of the alleged prejudice, the nature of the case, the trial judge made findings of fact supported by the evidence. In particular, his finding that the complainant was intoxicated was supported, even by the evidence of the appellant.

[8] On the third branch of the alleged prejudice, the contents of the statement, the appellant points to the portion of the notes where the complainant said she was "tipsy". That very reference in the notes shows that the notes were a sufficient substitute for the recording. And, the appellant fairly acknowledges that defence counsel at trial (not counsel on appeal) did not even put that portion of the notes to the complainant in cross-examination.

[9] In summary, the loss of the recorded statement did not prejudice the appellant's defence. The appeal is therefore dismissed.

"John Laskin J.A."

"G.T. Trotter J.A."

"Fairburn J.A."