Court of Appeal for Ontario
Date: 2025-09-08
Docket: C70862
Panel: Tulloch C.J.O., Huscroft and Paciocco JJ.A.
Between
His Majesty the King Respondent
and
Raymond Burke Appellant
Counsel
Jeffery Couse and Linnea Kornhauser, for the appellant
Lorna Bolton, for the respondent
Heard
September 2, 2025
On Appeal
On appeal from the conviction entered on November 5, 2021 by Justice Sandra Nishikawa of the Superior Court of Justice, with reasons reported at 2021 ONSC 7342.
Reasons for Decision
A. Overview
[1] In 1986, two young women — Nicole Murdock and Angela English — were separately abducted, confined, subjected to serious violence, and repeatedly sexually assaulted by the appellant. While on bail for the Murdock allegations, the appellant committed the English offences and then fled Canada. He lived under an assumed identity in the United States, where he committed further violent offences, received a 52-year sentence, and remained imprisoned until he was unexpectedly paroled in 2015 and deported to Canada. He was then arrested and, after this court ruled that his s. 11(b) Charter right was not breached, ultimately tried and convicted of the 1986 offences.
[2] At his trial before Nishikawa J., the Crown's similar-fact application was granted – a ruling which the appellant has not appealed. The defence brought a "lost evidence" application concerning records that no longer existed from the historic investigations, some of which the Crown conceded were lost through unacceptable negligence. The trial judge found s. 7 Charter breaches in limited respects but concluded that the appropriate s. 24(1) Charter remedy fell short of a stay. She factored the loss into her trial rulings and credibility assessments and convicted on all counts (aside from an included confinement count stayed as redundant).
[3] The appellant advances two grounds:
The trial judge erred in her finding that the loss of Ms. Murdock's investigative file (including her original 1986 statement) was not the product of unacceptable negligence; and
The trial judge failed to address the integrity of the justice system dimension arising from the conceded negligent loss of police notes and clothing in Ms. English's case.
[4] We dismiss the appeal. Read fairly and as a whole, the trial judge applied the governing law to the correct issues, made findings available on this record, and exercised her s. 24(1) discretion judiciously. Even assuming any misstep in the negligence analysis respecting Ms. Murdock, it was harmless: the trial judge, in fact, found a s. 7 breach stemming from the loss of Ms. Murdock's original statement and proceeded to the remedial analysis — which was sound and dispositive.
B. Factual Background
[5] In September 1986, the appellant kidnapped Ms. Murdock (then 22), threatened her with a knife and gun, whipped her, choked her to the point of unconsciousness, and anally and vaginally raped her over many hours. The very next month, while he was on bail for the charges in relation to Ms. Murdock, he abducted Ms. English (then 17), tied her up, whipped her, repeatedly sexually assaulted her, and threatened her with death. She ultimately escaped by leaping from a moving vehicle on Highway 401. Both complainants obtained medical care at Women's College Hospital; Sexual Assault Examination Kits (SAEKs) were taken and preserved at the Centre of Forensic Sciences (CFS).
[6] After he was charged with assaulting Ms. English, the appellant absconded while on bail and fled to the U.S. In January 1988, he received a 52-year sentence for unrelated violent offences in the U.S. Toronto Police Service (TPS) was informed in 2000 that early parole was theoretically possible in May 2013 but unlikely; the next potential release date was 2040, by which time the appellant would be 87 years old. In addition, TPS lost contact with Ms. Murdock, who had made the initial complaint under the false name of "Caramel Holiday". In 2005, the Crown withdrew the Murdock charges. In accordance with TPS retention policy, the associated Crown brief — kept in police storage after withdrawal — was purged about eight years later, likely in 2013.
[7] After the appellant's parole in 2015 and deportation to Canada, he was arrested. Police re-interviewed Ms. Murdock (now identified by her true name) and proceeded on both sets of allegations. At trial, the Crown conceded unacceptable negligence for certain lost items in the English file, including clothing and some TPS and Durham Regional Police Service (DRPS) officer notes. The original statement by Ms. English, hospital SAEK records, several officer notes and willsays, CFS materials, and other documentation remained available. In the Murdock matter, Ms. Murdock's original statement, some photographs, seized items, and TPS memobooks were missing; however, a contemporaneous police synopsis, property lists, SAEK materials, CFS holdings, and other records remained.
C. Issues and Legal Standards
[8] Two issues arise:
a. Did the trial judge err in concluding the Murdock brief was not lost through "unacceptable negligence"?
b. Did the trial judge fail to consider prejudice to the integrity of the justice system arising from the negligent loss of aspects of the English file?
[9] The legal framework is settled:
[10] Disclosure/Lost Evidence: If the accused shows that relevant evidence has been lost, the Crown must show that loss was not due to unacceptable negligence, failing which a breach of the s. 7 Charter right to disclosure will be found. If the Crown shows that the loss was not due to unacceptable negligence, thereby rebutting this Charter claim, the accused must show actual prejudice to their fair-trial interests or that the loss was caused by an abuse of process to establish a Charter breach: R. v. La, [1997] 2 S.C.R. 680; R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.); R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, leave to appeal refused, [2021] S.C.C.A. No. 406. Police and Crown are not held to a standard of perfection on the unacceptable negligence issue; reasonableness is assessed contextually at the time of loss, including retention policies and the perceived utility of continued storage.
[11] Prosecutorial discretion: Decisions to withdraw charges are reviewable only for abuse of process on a proper evidentiary foundation; courts do not "[look] behind the exercise of prosecutorial discretion" absent that foundation: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 46; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167.
[12] Section 24(1) remedy and stays: A stay is only imposed in the "clearest of cases" as a remedy of last resort: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581, at paras. 112–13; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 69. Where trial fairness and the integrity of the justice system are not materially impaired, alternative remedies suffice (e.g., limiting instructions, tailoring of similar-fact evidence use, weight and credibility adjustments, disassociation of the justice system from the impugned state conduct going forward), a stay is not warranted. If there is any uncertainty concerning the integrity branch, a stay is inappropriate if the balance of interests favours trial: Babos, at paras. 34-44.
[13] Standard of Review: The trial judge enjoys broad remedial discretion: R. v. Nicholas, 2017 ONCA 646, 40 C.R. (7th) 83, at paras. 56–58. Appellate intervention is only warranted to correct legal errors, palpable and overriding factual errors, or a failure to exercise discretion judicially: Regan, at para. 117; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 15; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 17.
D. Analysis
(1) The Murdock Brief and "Unacceptable Negligence"
[14] The appellant argues that because the Murdock brief was ultimately purged, the trial judge had to find "unacceptable negligence," and that she wrongly relied on parole information and impermissibly deferred to the 2005 withdrawal decision.
[15] We disagree. The trial judge correctly set out the Bero/La framework, recognized that the Crown bore the onus to show the loss was not the product of unacceptable negligence, and focused — as she was required to — on the reasonableness of police conduct when the purge occurred (circa 2013), not on a standard of perfect preservation for decades.
[16] Context mattered. By 2013, the Murdock charges had been withdrawn for eight years; TPS had long lost contact with "Caramel Holiday"; robust contemporaneous advice in 2000 said early parole in 2013 was unlikely, with 2040 as the next potential release; and storage practices for concluded matters were governed by a content-neutral retention policy that was reasonable at the time. The trial judge reasonably concluded that, in those circumstances, purging a withdrawn brief in accordance with policy was not unacceptable negligence. This conclusion accords with the governing legal principles. Not only does compliance with a reasonable record retention policy weigh against finding unacceptable negligence, but the police cannot be expected to retain evidence indefinitely where they reasonably believed that dropped charges would not be re-laid: R. v. B. (F.C.), 2000 NSCA 35, 182 N.S.R. (2d) 215, at para. 26, leave to appeal refused, [2000] S.C.C.A. No. 194; Sheng, at para. 40.
[17] The appellant's invitation to "look behind" the 2005 withdrawal decision was properly rejected. That decision was an exercise of prosecutorial discretion, which is only reviewable for an abuse of process: R. v. Beare, [1988] 2 S.C.R. 387, at p. 411; Krieger, at para. 46; Anderson, at para. 40; R. v. Varennes, 2025 SCC 22, 504 D.L.R. (4th) 583, at para. 45. No abuse of process application was brought; no evidentiary foundation was offered to displace the presumption of good faith. Thus, the Crown was not required to adduce further evidence to justify its decision to withdraw charges: Anderson, at paras. 52-56. The trial judge was right to proceed on the basis that the withdrawal was a lawful exercise of discretion in the public interest given what was then known.
[18] In any event, the finding the appellant targets does not decide the appeal. The trial judge went on to find that the loss of Ms. Murdock's original 1986 statement contravened the appellant's s. 7 right to make full answer and defence, as it limited impeachment avenues, and she conducted a full s. 24(1) remedy analysis, finding that a stay of proceeding was not an appropriate remedy. [1] Thus, even if one were to assume error in the "unacceptable negligence" conclusion for the Murdock brief, it would be harmless: the court reached the remedial stage and fashioned appropriate trial-level accommodations short of a stay.
(2) Integrity-of-Justice Prejudice in the English File
[19] The Crown conceded unacceptable negligence for certain missing items in the English investigation (TPS/DRPS officer notes; clothing). Since this constituted a s. 7 breach of the Crown's disclosure obligation, the sole remaining issue related to remedy. The appellant sought a stay of proceedings. The trial judge then asked the correct questions under the first step of the Babos stay test: (i) did those losses cause actual prejudice to trial fairness; and (ii) if not, did they nonetheless warrant a stay to protect the integrity of the justice system?
[20] On trial fairness, the trial judge found no material prejudice. That finding is well-supported: Ms. English's original written statement survived; extensive SAEK/medical documentation and CFS holdings survived; multiple officer notes/willsays, workplace linkage evidence, and scene photographs survived; the defence cross-examined with breadth and vigour; and the appellant gave detailed testimony about the very topics which, in his lost evidence application, he claimed not to recall. Identity was not in dispute; DNA from clothing would not have assisted the defence theory. Any speculative value in additional notes or duplicate medical entries was just that — speculative — and the trial judge accounted for the gap by appropriately calibrating her credibility analysis. Following this court's s. 11(b) ruling, she also squarely recognized that the passage of time — and therefore the conditions in which evidence might be lost — was principally a function of the appellant's own flight from justice for nearly three decades. In her words, but for the appellant's deliberate evasion, "it is unlikely that the evidence would have been lost": See also R. v. Burke, 2018 ONCA 594, 47 C.R. (7th) 282, at paras. 4, 11-12.
[21] On integrity, the appellant says the trial judge failed to grapple with it. Read fairly, her reasons demonstrate that she sufficiently grappled with the issue. After setting out the three-part test in Babos, the trial judge expressly considered whether allowing the prosecution to proceed would undermine confidence in the administration of justice given the conceded negligence and weighed that against the profound public interest in adjudicating extremely serious historical sexual violence charges.
[22] The trial judge was not required to say more than she did on the integrity issue. This was not the focus of the appellant's submissions, receiving only passing mention in his written materials. The trial judge's assessment not only clears the sufficiency of reasons threshold, but also accords with first principles. Stays grounded solely in the integrity branch are exceedingly rare. This is not one of those rare cases. Unlike the deliberate and systemic destruction of evidence by a state-funded agency in R. v. Carosella, [1997] 1 S.C.R. 80, there is no evidence of bad faith, deliberate destruction or systemic misconduct here. As well, the trial judge adopted proportionate alternatives: she limited the use of similar-fact reasoning, weighed the missing items against the Crown's burden of proof, and directed herself to consider how the gaps might reasonably assist the defence. That sufficed to vindicate the interest in preserving the justice system's integrity without the blunt-force remedy of a stay.
(3) Remedy and Deference
[23] The choice of remedy under s. 24(1) attracts substantial appellate deference. The trial judge recognized and applied the governing tests from La, Bero, Babos, and Bjelland; identified the specific lost items and surviving corpus of evidence for each complainant; made credibility and reliability findings anchored in the full record; and explained why tailored trial-management tools protected fairness and integrity. No legal error, palpable and overriding factual error, or injustice is shown.
E. Disposition
[24] The appeal is dismissed. The convictions are affirmed.
[25] We note that the publication ban imposed at first instance was subsequently lifted at the complainants' request.
"M. Tulloch C.J.O."
"Grant Huscroft J.A."
"David M. Paciocco J.A."
Footnote
[1] The case law cited in paragraph 10 above arguably holds that absent an abuse of process or unacceptable negligence in the loss of evidence, the loss of evidence will not lead to a Charter violation unless that loss undermines the fairness of the trial. The trial judge found that the loss of Ms. Murdock's statement did not undermine the fairness of the trial, in part because a fulsome cross-examination remained possible. That being the case, it is arguable that the trial judge should not have found that s. 7 had been breached, but we need not decide this issue because it was not raised before us. However, we should not be taken as endorsing the trial judge's conclusion that the compromise of full answer and defence alone constituted a s. 7 breach requiring a remedial analysis.