WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (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.
Court Information
Ontario Court of Justice
Date: September 20, 2018
Between:
Her Majesty the Queen
— and —
Cleve Ferguson
Before: Justice B. Knazan
Reasons for Judgment released on: September 20, 2018
Counsel:
Ms. S. Malik — counsel for the Crown
Mr. S. Whitzman — counsel for the accused, Cleve Ferguson
KNAZAN J.:
A. INTRODUCTION
[1] Cleve Ferguson is charged with sexually assaulting and forcibly confining Ms. D.T. They weren't friends but they had a defined relationship. She used drugs and he would bring her drugs and they would have sex together.
[2] On May 16th, 2017, Mr. Ferguson came to D.T.'s home as he had done in the past. He provided her with drugs and they had some drugs together and consensual sex.
[3] Ms. D.T. could not remember much about the evening but she did recall that while she was performing oral sex on him, he held her head down on him past the point where she was consenting to perform fellatio and would not let her up. She was agreeable to the oral sex but, real soon, she said, he was holding her head down and telling her not to move. She could not move because he was holding her head down even though she, as she put it, reached down and tried to stop him. This continued for 45 minutes. She was scared.
[4] Then later, he straddled her and strangled her. She woke up on the floor while Mr. Ferguson was sleeping in the bed and she called the police. While she agreed that they went out of her house together at one point she testified that she did not leave the apartment alone until she went out to call the police.
[5] Ms. D.T. uses cocaine and used it that night along with alcohol. She could not remember many of the details of the night and part of the evening. For example, she could not recall whether either of them had their clothes on. Her waking up on the floor and his throwing her a blanket came to her in a flashback several months later. Nonetheless, she testified honestly, never trying to make up what she could not recall and not hesitating to answer questions whether or not they could assist Mr. Ferguson.
[6] In view of this, Mr. Ferguson's allegation that the police lost evidence of video recordings that would have disproved Ms. D.T.'s evidence, moves to the forefront of the case. He moves to stay the charges, alleging that the police, who knew about the recordings from the moment Mr. Ferguson told them about them at the police station, acted in a way so as to demonstrate a systematic disregard of its obligation to preserve relevant evidence. He also submits that this case is an example of when lost evidence can have an impact on the Crown's proof such as to raise a reasonable doubt when considered in light of all of the evidence.
[7] I have determined that although evidence was lost, it was through a combination of the police not understanding what they were looking for and the victim's (I use "victim" as a synonym for "complainant" in compliance with s. 2 of the Criminal Code) erasing the recordings that she had despite the police inquiries about video on her computer. There was no malevolence or disregard of the obligation to preserve evidence; quite the contrary, the police tried.
[8] However, the existence of a recording, the possibility that it may have contradicted the victim and the loss of the evidence does play a role in the case, as the Court of Appeal has recognized it can, even if not justifying a stay. Combined with other frailties in her evidence, the circumstances of the lost evidence raises a reasonable doubt in my mind as to whether Mr. Ferguson sexually assaulted her or unlawfully confined her.
[9] I will explain my reasons for both conclusions after describing how the issue arose and the evidence became lost.
B. THE RECORDING AND POLICE EFFORTS TO PRESERVE THEM
(a) Ms. D.T.'s Security Device: What Mr. Ferguson Told the Police and the Crown, and Their Response
[10] Ms. D.T. called the police to her apartment on the morning of May 16th. The police found Mr. Ferguson in the bed in Ms. D.T.'s home and arrested him. They took him to the police station and questioned him. He indicated that he did not wish to speak on his lawyer's advice, then he did speak. He told Detective Rose that he should get the video off of D.T.'s computer because it would show that he had told her that he did not want to smoke any more dope or do anything and that she was going in and out of the house. He agreed that he had sex with her and smoked drugs and drank some alcohol and said that he told her that she should stop waking him up.
[11] He told the officers to check the video to see how many times they walked outside together and how many times she walked out alone to see how he could confine her in her own house. At this time the police understood they were investigating a forcible confinement committed by keeping her in the apartment and that position continues through to trial.
[12] When Detective Rose, who was obviously conducting a skilled interrogation in an attempt to have Mr. Ferguson incriminate himself, said, apparently in good faith, that he had not seen the video, Mr. Ferguson described it in detail.
[13] He told the detective that there was a little square box on the door and even indicated where on the door of the room of the police station. He told the officers that once the door is open the camera is activated and that on her computer monitor she, Ms. D.T. could go through and see how many times the door was open. She could also see who is standing at the door for about thirty seconds. He explained that it would show every time that they went outside to have a cigarette and every time that he said he was not going outside and how often she was going outside alone. He insisted to the police officers that they check the video.
[14] Rose changed the subject to how much she was smoking and drinking and Ferguson interrupted him and said "check the video". Rose tried to continue his question on the new topic and Ferguson interrupted him and said "check the video. I'm sure it's on the video." Ferguson also told him that he was speaking loud enough about going to sleep so that he could be heard on the security device. He related this to Ms. D.T. going in and out of the apartment in response to the detective's question as to whether he assaulted her.
[15] When Rose emphasized that they wanted both sides, Ferguson told him that he Rose had the video and pleaded that the police at least give him something to defend himself with, meaning the video. He told the police: "Plus the video. Don't believe me. Don't believe her. Check the evidence."
[16] Rose showed some interest in the video. He asked if it had audio and Ferguson replied that it had audio, and that he should check the evidence.
[17] This was all at 11:30 on the morning of the arrest.
[18] The next day in bail court, duty counsel acting on Mr. Ferguson's instructions asked on the record for disclosure of the surveillance video from the complainant's apartment building. He put the Crown on notice that the surveillance video be preserved and ultimately disclosed.
[19] By June 1, Mr. Ferguson had retained counsel who wrote the office of the Crown Attorney that the complainant had a camera at her doorway that downloaded to her computer and requested all video taken from any cameras. Counsel stressed that the request required immediate attention as he was unsure whether the complainant would retain the video. He stressed that the video would be crucial to the legal defence. Counsel repeated the same points and the same request in a letter of June 23rd, pointing out that it was the second request.
[20] On June 27, Crown Counsel replied that she had forwarded the letter to Detective Nicole Jamieson, the officer in charge. Crown Counsel reported that Detective Jamieson had advised that there was no recording device and that the only device that existed was connected to the doorbell and that the photos that it took were not connected to any computer or any other device. So on June 27, Crown Counsel confirmed that there was no video or recordings of the alleged incident or event.
[21] This turned out to be incorrect, but Crown Counsel did not desist in her efforts to answer the disclosure request. Upon defence counsel asking on July 5 whether the police had actually attended at Ms. D.T.'s residence, Crown Counsel instructed Detective Jamieson to ask the complainant if she consented to the police examining her computer. The complainant consented and produced the computer for a forensic examination. The examination did not reveal any videos. This information was provided to the police in April 2018.
[22] Ms. D.T. did not tell the first responding officers anything about any alarm system because she did not remember. In court, she described the system. It recorded who is at your door. A video recording would go to her phone or her computer or both. It would show the person ringing the bell and if you paid four dollars the image is saved into a cloud as well as to her devices. Ms. D.T. had that service. It saved on both her computer and phone. She believed that it remained; it would be sent to the cloud. If she logged in and looked to see, she could watch it. She was not aware of whether there were any recordings of the early morning of May 16, 2017 but agreed in cross-examination that there would have been.
[23] Ms. D.T. was honest about the existence of her system and how it worked.
[24] Between May 16th and June 3rd she deleted her account with the ring system because her cell phone was stolen and her email was hacked. She set up another account.
[25] At the request of the police in early 2018, she inquired of the company as to how long the recordings would be kept on the cloud. She was advised that they were kept for three months.
[26] After Detective Jamieson asked her about her computer she did not remove any files.
[27] Officer Jamieson testified that she was with Detective Rose when Mr. Ferguson repeatedly told them about the video in his statement. Detective Rose was more senior though she ultimately became the officer in charge of the case. She said that Detective Rose instructed her to check the video. She was under the impression that it was a surveillance video in the building and did not realize that it was Ms. D.T's computer that was at issue until the important correspondence from Crown Counsel. She checked the video by asking Ms. D.T. if there was one and accepting her telling her that there was not.
[28] She had difficulty getting in touch with Ms. D.T. who was living a transient life style and had left the apartment where the incident occurred. When she first asked her for the computer on August 28, 2017, Ms. D.T. was reluctant to give it up because her friends had told her that when you give something to the police it is not easy to get it back. But she did voluntarily produce it on September 6. By then it was too late and the police technician found no recordings of what occurred on May 16.
[29] Jamieson did not have experience with production orders and agreed that the one thing that she could have done differently was to consider seeking one to access the provider's records on the cloud to which Ms. D.T.'s recordings were saved and kept.
(b) Conclusions as to Whether There Was Lost Evidence and the Relevance of What was Lost
[30] There is no doubt, from Ms. D.T.'s evidence, that Mr. Ferguson was correct when he spoke to the police and that entries and exits to and from the apartment on May 16th would have been recorded onto Ms. D.T.'s computer, and indeed her phone also. This evidence became lost evidence when Ms. D.T. discontinued her account within 3 weeks of reporting the crime and by taking no steps to access the cloud.
[31] The victim's role in losing the evidence was in turn the result of a misunderstanding on Officer Jamieson's part as to what Mr. Ferguson was talking about when he spoke to her and Detective Rose. Officer Jamieson believed Ms. D.T. when Ms. D.T. said that there was no video. There was a failure on the part of both the complainant and the police that caused this. Ms. D.T. seems to have answered literally—there was no video in the sense of a video camera but there was a film-like recording from her ring system directly to her phone and computer. She did not enlighten Detective Jamieson the first time that Jamieson asked and she did not hide anything when Jamieson specified that they wanted their computer.
[32] Jamieson's failing was to take Ferguson literally when he used the word video and not add to the information his explanation that he was talking about an apparatus that Ms. D.T. installed that recorded to her computer. In the result, when she asked D.T. about a video and reported to the Crown Attorney that there was no video, she was investigating something different than Ferguson was talking about.
[33] From this review of both the police and the victim's actions, I am able to draw several conclusions.
[34] First, Mr. Ferguson provided specific information at an early stage of the investigation of the existence of recording equipment that recorded the entries and exits to the apartment that night, as well as audio recordings of him speaking in a loud voice. These recordings existed at the time he provided his statement to the police, at the time that he raised them at his bail hearing the next day and probably at the time that his counsel requested that the police obtain and disclose them.
[35] At the time of the investigation, the police understood that Mr. Ferguson had unlawfully confined Ms. D.T. by not allowing her to leave the apartment; therefore there was relevant evidence that the police knew about at least with respect to that charge, if not with respect to the alleged sexual assault and a choking charge that the Crown has not proceeded with.
[36] The police pursued the issue of a video within a reasonable time within the circumstances of the case—that is while the recordings still existed. However Officer Jamieson pursued it ineffectively based on a misunderstanding of what she was looking for. Since Mr. Ferguson specified how the system worked during the statement at which she was present, there was sufficient information to ask Ms. D.T. about her computer before she erased them. However, she did follow the Crown's Attorney's directions in an expeditious manner at first and in a thorough manner after she was told what to look for.
[37] The victim Ms. D.T., for her part, seemed unaware of the significance of her recordings or was, as she put it, thinking about other things. In the result, by erasing her phone and her computer, she destroyed evidence that may have been helpful to either the prosecution or the defence. The combination of her actions and the police misunderstanding resulted in the evidence being lost beyond retrieval.
C. THE STANDARD APPLICABLE TO THE POLICE LOSING EVIDENCE
[38] The Court of Appeal describes the proper approach to assessing an application to stay charges based on an allegation of lost evidence in R. v. Bero.
[39] First of all, the stay application is to be determined after the Court hears the evidence on the trial, as occurred here.
[40] The police are held to a standard, that can best be expressed by a double negative, there is to be no unacceptable negligence. The onus is on the Crown to show that there has been no unacceptable negligence.
[41] However, there is a difference here from Bero and the broad principles that it establishes relevant to the assessment of unacceptable negligence. The Bero framework is built entirely on the premise that that the information is, at some point, in the possession of the Crown. (Paragraph 30(1), and paragraph 32).
[42] Here while the police had the information that there was a ring system immediately, the information was not in police possession. The chain of events leading to the loss of the evidence occurred from Jamieson, being directed by Rose, not knowing what she was looking for. One could say that the police were less than perfect in following the lead that the defendant provided.
[43] However reviewing the record, and identifying the point in the unfolding of events as where Jamieson asked the victim where there was a video and the victim taking her literally and telling her no, and the officer accepting that, I characterize this as a mistake and negligence. It is the adjective in the Court of Appeal's formulation, "unacceptable" that is important and makes the particular facts so relevant.
[44] The information never was in the possession of the police. The mistake the police made was to rely on the victim and to not pay attention to the defendant's explanation of what he was talking about.
[45] This demonstrates an inattention to the defendant's protestation that belies Detective Rose's statements that the police were trying to get a full story. They were more interested in drawing out a confession than getting a full picture.
[46] But Rose did instruct Jamieson to get the video. So did the Crown Attorney and quickly. And Jamieson followed directions as instructed. An investigation that proceeds expeditiously with the intention to follow a superior officer's instructions and the Crown instructions that falls short because of a mistake, that is exacerbated by a victim that did not help the police by pointing them to obviously relevant evidence, falls short of unacceptable negligence. I would therefore not find a breach of the right to make full answer and defence.
D. RELEVANCE OF THE LOST EVIDENCE TO THE PROSECUTION'S PROOF OF THE CASE
[47] However, lost evidence does not only give rise to Charter breaches and remedies, it can, when established as here, be relevant to whether the Crown has proven the case beyond a reasonable doubt.
[48] In R. v. Sheng, 2010 ONCA 296, the Court of Appeal set aside the stay that the trial judge had imposed. The Court of Appeal agreed that the lost evidence could have assisted the accused in attacking the credibility of the complainants, but found that the trial judge did not address the lost evidence in light of the other evidence available to attack a complainant's credibility. The trial judge also failed to consider alternative remedies such as exclusion of evidence after finding a violation of the accused's right to make full answer and defence.
[49] But most importantly for my purpose here, Justice Laskin found that the trial judge erred in not taking account lost evidence in his assessment of the complainant's credibility and reliability.
[50] Previous to Sheng, Justice Laskin had referred to this proper approach to cases where evidence had been lost, as here, in R. v. Dulude. There he held that the lost evidence did not cause irreparable prejudice because its loss did not prejudice Dulude's right to make full answer and defence. Justice Laskin stated:
If the defence believes it has been prejudiced by the loss of the videotape it should be allowed to put before the trial judge evidence that the Crown failed to preserve and disclose the videotape despite its obligation to do so. The defence should also be allowed to lead evidence about how the tape may have assisted Ms. Dulude in raising a reasonable doubt about her guilt on the two charges she faced, or in showing how the Crown had failed to meet its burden of proof. The trial judge will then be able to assess the significance, if any, of the lost evidence.
[51] This is what occurred here. The Crown, who immediately saw the relevance of the recordings and the promptness and appropriateness of the disclosure request, did everything possible to put them into the hands of the accused and before the Court. This included its position at trial.
[52] While the transcript of Mr. Ferguson's statement to the police, an effective denial that he had done anything to Ms. D.T. without her consent was introduced as part of his motion to stay, Crown Counsel agreed that the evidence on the motion could apply to the trial. She agreed that not only could the fact of the statement and the references to the monitoring system and recordings be part of the trial but that the accused's entire statement could be part of the trial without his having to testify and be cross-examined.
[53] In the result Mr. Ferguson's denial, his indignation at the accusations that Ms. D.T. was making, as well as his attempts to defend himself to the police over the advice of his lawyer, and his willingness to have them view and listen to recordings that he maintained would show his innocence, are all before me. The Crown has effectively introduced his statement, with the defence agreeing that it be part of the evidence without the necessity of a voir dire. All of an accused's utterances are of course, evidence, the exculpatory as well as the incriminatory.
E. ASSESSMENT OF THE EVIDENCE AS A WHOLE
[54] Returning to the evidence as a whole, Ms. D.T.'s description of both the sexual assault and the choking were bare descriptions of the crime. She could describe the evening generally but could remember little detail surrounding the two events. The description of the enforced fellatio, forty-five minutes of holding her head down on his penis developing out of her initially consenting to perform fellatio would clearly be a sexual assault. But her estimate of the time seemed a guess because of her poor memory. Her recollection of Mr. Ferguson straddling her and choking her is clear but also mixed up with a police officer having told her that she woke up wet because she had lost consciousness, which in turn has similarities to a choking incident with Mr. Ferguson months before this occurred. And she was using cocaine on May 16th, though she said less than the amount that it would take to affect her perception, as well as drinking alcohol.
[55] Her direct answers support her credibility. She answered every question both about allegations and the lost evidence without evasion or regard to where the answers would lead.
[56] Even if the lost evidence showed that Mr. Ferguson and Ms. D.T. entered and left the apartment during the course of the night, that would not disprove the allegation as the 45 minute assault could have occurred after whatever the recordings would have shown or even a 45 minute period between them.
[57] However, when I add Mr. Ferguson's early and convincing denial of non-consensual sex and confining her, at a time when the police thought that he had, and choking her or hurting her in any way, along with the lost evidence that could have assisted the Court in understanding what happened, to Ms. D.T.'s initial lack of assistance to the police by not telling them there was a recording system and maintaining it, I am not sure whether the sexual assault occurred. The case does not rise to the level of probably guilty, that Justice Cory stated in R. v. Lifchus, requires an instruction to the jury to acquit. I simply do not know if the assault occurred or not. I cannot think of any stronger rephrasing of reasonable doubt than that.
[58] The sexual assault charge is dismissed and there is no proof of forcible confinement in the way that the charge in the information contemplated – that is not allowing her to leave. That charge is dismissed also.
Released: September 20, 2018
Brent Knazan
Ontario Court of Justice