Court Information
Ontario Court of Justice
Date: May 14, 2020
Between:
Her Majesty the Queen
— and —
Richard Natkunarajah
Before: Justice P. Downes
Heard on: January 6 and February 25, 2020
Reasons for Judgment released on: May 14, 2020
Counsel
Mr. D. Harm — counsel for the Crown
Ms. A. Kahn — counsel for the defendant, Richard Natkunarajah
Judgment
P. DOWNES J.:
1. INTRODUCTION
[1] Richard Natkunarajah is charged with two counts of assaulting his girlfriend, Nithusha Kugathasan, in October 2018. Ms. Kugathasan testified for the Crown as did her friend, Kameka Kirby-Chang. The heart of the Crown's case is the complainant's evidence, and the central issue on the trial proper is whether her account of being assaulted is credible and reliable such that it establishes Mr. Natkunarajah's guilt beyond a reasonable doubt.
[2] The defence also applies to stay the proceedings because of lost evidence. The complainant gave a videotaped statement to the police. The audio of that statement failed to record, and the police took no steps to otherwise record the contents of the statement. There is no evidence of what the complainant said.
[3] Mr. Natkunarajah says that the police were unacceptably negligent in failing to preserve this evidence and as a result, his section 7 Charter right to make full answer and defence has been violated. He has been deprived of critical evidence and there is no adequate remedy short of a stay of proceedings.
[4] I will first consider the merits of the trial proper to determine whether the Crown has proved the case against Mr. Natkunarajah beyond a reasonable doubt. The fact that evidence has been lost may be a consideration in assessing the strength of the complainant's evidence. If I find that the Crown has proved its case, I should go on and consider the application for a stay of proceedings, taking into account the impact of the lost evidence in the context of the available evidence at trial. If a stay is warranted, no finding of guilt should be made. If some other remedy short of a stay of proceedings is warranted, that should be addressed prior to any finding of guilt.
[5] On the available evidence at this trial, I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Natkunarajah assaulted Ms. Kugathasan. I am also of the view, however, that the proceedings must be stayed. The failure to record the complainant's statement in any meaningful way amounted to a loss of crucial evidence, and, while it was not willful or deliberate, it was unacceptably negligent. There was no other source of information available to the defence describing the allegations. The loss of this evidence prevented Mr. Natkunarajah from comparing the complainant's viva voce evidence with what she told the police and seriously impaired his right to make full answer and defence.
[6] In my view, a stay of proceedings is the only meaningfully available remedy.
2. THE TRIAL PROPER
[7] The complainant, Nithusha Kugathasan, dated and occasionally lived with Mr. Natkunarajah between 2016 and 2018. She described their first year together as unremarkable; they were "a normal couple." In the latter half of 2017 Mr. Natkunarajah assaulted Ms. Kugathasan when he punched her in the head while they were driving. This is not one of the charged allegations.
[8] Ms. Kugathasan described the deterioration of her relationship with Mr. Natkunarajah. She said he was controlling and abusive towards her, suspicious of where she went and who she saw. She described another uncharged assault around Christmas 2017 when she said he punched her in the stomach and arm. She did not disclose these assaults because she did not want to be pitied.
[9] Ms. Kugathasan and Mr. Natkunarajah continued in a volatile and controlling relationship throughout 2017. He told her that as a girl she should not talk back to him. He blamed her for the assaults.
[10] Ms. Kugathasan described an incident in October 2018 which formed the basis of one of the charges on which the Crown proceeded.
[11] Ms. Kugathasan got a tattoo. Mr. Natkunarajah did not approve and berated her for it. They spent some time driving around looking at Halloween lights, and at one point he punched her in the back of her head and smashed her face into the dashboard. He said she was stupid and was angry that she got a tattoo without telling him first. He wanted it removed. She said she had bumps on her head, but they were not visible. Later, also in the car, Mr. Natkunarajah deliberately poured coffee on her.
[12] The next day, Ms. Kugathasan went to a park where Mr. Natkunarajah had taken some of her property including her dog. She wanted them back. She described him approaching her in what she felt was an intimidating manner and her striking him mildly with the dog leash. She eventually called the police to report that he had taken her property. When police arrived, she gave them a statement which included telling them that he had been abusive to her on previous occasions. It was after this that she went to the police station to give her videotaped statement. She and Mr. Natkunarajah broke up the following day.
[13] Much of the cross-examination of Ms. Kugathasan was directed at undermining the likelihood and physical possibility of the assault in the car having taken place in the manner she described. Ms. Khan also brought out that Mr. Natkunarajah's mother would have seen her shortly after the assaults took place, but she agreed that she never told the police about this potential witness to her injuries. Ms. Khan also challenged Ms. Kugathasan on how it was that no one else saw or reported on any injuries on her in the days following the alleged assaults. Ms. Kugathasan maintained that her injuries would not have been visible.
[14] Kameka Kirby-Chang described some history of hostility between Ms. Kugathasan and Mr. Natkunarajah. Other than describing Ms. Kugathasan's "frantic" demeanour on a telephone call in October 2018, her evidence was largely unhelpful or inadmissible hearsay.
[15] Mr. Natkunarajah is of course presumed to be innocent and cannot be found guilty unless the Crown establishes his guilt beyond a reasonable doubt. While it is important to recognize the particular dynamics at play in a domestic relationship, and not to apply any stereotypical myths or assumptions about how either party would or should behave, it is also important that the complainant's evidence be carefully assessed against the exacting standard of proof beyond a reasonable doubt. Ms. Kugathasan's evidence must not be accepted simply because it is largely uncontradicted. Rather, it must be considered as a whole, in context, and in light of judicial experience and common sense.
[16] Ms. Kugathasan was a credible witness. I did not find that the details of the assault in the car were illogical or incredible. Rather, she presented a consistent and largely measured description of Mr. Natkunarajah's actions. The backdrop of verbal abuse and alleged assaults is of some relevance in putting the relationship in context, but this prior conduct is not admissible as evidence that Mr. Natkunarajah assaulted Ms. Kugathasan in October 2018 or that he is the type of person who would commit such an assault. That allegation must be analyzed based on the evidence Ms. Kugathasan gave about how and when it happened. In my view her evidence was cogent and credible.
[17] I accept Ms. Kugathasan's evidence that she was assaulted in her car by Mr. Natkunarajah. The fact that there was no defence evidence is irrelevant to the Crown's burden. But it also means that Ms. Kugathasan's version of events, while tested as to its coherence and logic under cross-examination, is uncontradicted. I find that there are no obvious or unanswered problems with respect to Ms. Kugathasan's evidence.
[18] I am satisfied that Mr. Natkunarajah punched Ms. Kugathasan and forced her head onto the dashboard while they were driving in October 2018. Subject to a consideration of Mr. Natkunarajah's application for a stay of proceedings, I would find Mr. Natkunarajah guilty of one count of assault.
3. THE STAY APPLICATION
a. The Lost Evidence
[19] On October 13, 2018, D.C. Shaw met with Ms. Kugathasan to take a video and audio recorded statement. As it turned out, and unknown to anyone at the time, the audio portion did not record.
[20] D.C. Shaw testified that his normal practice in taking a recorded statement is to ensure that there is a second officer present to act as a "scribe" in case the video fails. As the interviewer, D.C. Shaw does not like to take detailed notes as he feels it diminishes his ability to effectively interview the witness. It is also his general practice to bring into the interview room a separate portable audio recording device, again as a failsafe in case the video recording equipment does not work. In this case, D.C. Shaw did neither of these things. It is not his practice to check the recording after the interview to see whether the recording functioned properly, and he did not do so on this occasion. Although D.C. Shaw took some notes during the interview, they were minimal and, as I understood his evidence, reflected little or nothing of the substance of what Ms. Kugathasan told him.
[21] Early in 2019, after receiving disclosure, defence counsel alerted the Crown's office that the audio from the interview was missing. Counsel received no response from the Crown's office. D.C. Shaw was first made aware of the problem with the recording a week or so before the trial.
b. The Principles
[22] An accused's Charter right to make full answer and defence "will be impaired where there is a reasonable possibility that undisclosed information could have been used by the accused to meet the case for the Crown, to advance a defence or to otherwise make a decision which could have affected the conduct of the defence."
[23] The following principles apply to a claim to lost evidence:
The evidence must have existed and been disclosable under the Stinchcombe standard; the lost evidence doctrine does not apply to evidence that the police failed to gather or neglected to obtain in the first place.
If information that the Crown would have been obliged to preserve has been lost or destroyed, the onus falls on the Crown to explain how this occurred and satisfy the court that it has not been lost or destroyed maliciously or owing to unacceptable negligence. This includes a consideration of whether the police acted reasonably in attempting to preserve it. The more relevant the evidence is, the more care should be taken to preserve it.
Where the explanation is unsatisfactory, the Crown will have failed to meet its disclosure obligation and there will be a breach of section 7 of the Charter. There is no additional requirement to show prejudice in order to establish a breach in these circumstances.
Even if the Crown has adequately explained the circumstances of the lost or missing evidence, there may still be a section 7 breach if "the loss of a document is so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial... The accused must establish actual prejudice to his or her right to make full answer and defence." This has been described as an extraordinary circumstance.
A failure to produce evidence may also be found to be an abuse of process if the conduct on the part of governmental authorities violates those fundamental principles that underlie the community's sense of decency and fair play.
If one or more of these breaches is established, the remedy must be found in section 24(1). The degree of prejudice is material to the fashioning of an appropriate remedy.
A stay of proceedings is the appropriate remedy if:
There is prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome."
There is no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court balances the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interests that society has in having a final decision on the merits."
c. The Position of the Parties
[24] The defence submits that the lost evidence was disclosable and that the actions of D.C. Shaw in failing to take basic safeguards to secure the record of the complainant's interview amounted to unacceptably negligent conduct on his part. The absence of the key piece of evidence upon which the police relied in charging Mr. Natkunarajah deprived the defence of the ability to fully test the evidence of the complainant at trial, infringing his right to make full answer and defence such that a stay of proceedings is the only viable remedy.
[25] The Crown concedes that the missing audio implicates Mr. Natkunarajah's right to make full answer and defence, because it would have been relevant to the defence ability to cross-examine the complainant and anticipate her evidence. The Crown says, however, that the application for a stay of proceedings should be dismissed for three reasons.
[26] First, since the evidence was not lost or destroyed but simply not obtained in the first place, it is not "lost evidence" as that phrase is understood in the section 7 context.
[27] Second, the failure to preserve the evidence did not amount to unacceptable negligence.
[28] Third, there was no malice on part of D.C. Shaw, and therefore no basis to find a section 7 violation based on an abuse of process.
[29] The Crown agreed that the defence had no disclosure of what the complainant told the police or what she would say in her trial evidence. The Crown submits that the stay should not be granted, however, because the loss of the audio also negatively impacted the Crown's ability to prove its case beyond a reasonable doubt.
d. The Principles Applied
i. Is the evidence "lost"?
[30] I disagree with the Crown that the evidence was not lost because it never existed. The Crown's disclosure obligation includes the preservation of relevant evidence. The material evidence was the words spoken by the complainant in her interview. The police had control over this evidence at the time it was produced but failed to record it. In my view that amounts to a failure to preserve relevant disclosable information.
[31] The audio portion of the interview was disclosable evidence. The Crown has an obligation to provide a satisfactory explanation for its loss.
ii. The Explanation
[32] D.C. Shaw could not explain why, from a technical point of view, the recording equipment picked up the video but not the audio of the complainant's statement.
[33] D.C. Shaw did, however, candidly explain how he failed to preserve the content of the complainant's statement in any other form. He did not take steps he ordinarily would when interviewing a witness, something he has done hundreds of times in his career. He did not have a second "scribe" officer, he did not use a backup audio recorder, and he did not check, after the interview, whether it had recorded properly.
[34] D.C. Shaw was not even aware that there was a problem with the audio until a week before the trial. He had no explanation for why he did not take the precautionary steps he typically took before a witness interview, only able to speculate that his audio recorder may have been out of batteries or he had forgotten it.
[35] D.C. Shaw was fair and open in his evidence. As he put it, he came to court with apologies, not excuses. He could not explain the failings but did say that this had never happened to him before in his career. I accept D.C. Shaw's evidence. He is an experienced officer and was a credible witness. On this occasion circumstances conspired against him such that his failure to take precautionary steps ended up creating a significant problem.
[36] Does D.C. Shaw's explanation satisfy the Crown's burden of demonstrating that the loss of evidence was not a result of unacceptable negligence? In R. v. Hersi the Court of Appeal said this about assessing unacceptable negligence:
the phrase "unacceptable negligence" suggests conduct which is more than merely negligent….the reasonableness of the police conduct resulting in the loss or destruction of the evidence is a touchstone of the inquiry. The more obvious the importance of the evidence, the higher will be the degree of care expected of reasonable police officers.
[37] Characterized in one way, the loss of the audio recording was, as the Supreme Court of Canada put it in La, merely due to "the frailties of human nature." D.C. Shaw's failure on this one occasion to take the steps he normally would in order to avoid the loss of evidence coincided with the failure of the audio to record. But the whole point of failsafe steps such as a scribe and backup audio device are to avoid the situation at hand. The complainant's recorded statement was obviously important evidence and D.C. Shaw appreciated it as such.
[38] Although I am sympathetic to the situation D.C. Shaw found himself in, I nevertheless find that his failure to take the basic precautionary steps to secure the evidence amounted to unacceptable negligence. It is impossible to characterize the lost evidence as anything other than relevant and very important. Indeed, as I have said, it was the entirety of the meaningful disclosure in terms of the accused's ability to challenge the complainant's evidence at trial. Although D.C. Shaw's general practice in conducting witness interviews is sound, in relation to the conduct of this interview, the Crown has not established that it was not unacceptably negligent. As a result, there has been a breach of Mr. Natkunarajah's section 7 right.
iii. Abuse of Process
[39] I do not agree with the Crown that, in addition to finding unacceptable negligence, it is also necessary to find that that the loss of evidence was an abuse of process before finding a section 7 disclosure breach. In any event, there is no evidence in this case that there was a willful frustration of the disclosure process or that the prosecution acted for an improper motive. Were it necessary to do so, I would not find that there was an abuse of process.
iv. Full Answer and Defence
[40] A section 7 violation can also arise out of lost evidence if it is "so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial." Although I have found a breach because of the Crown's failure to provide an adequate explanation for the lost evidence, I will nevertheless address this alternative basis because in my view it is the real concern here and what most clearly justifies a stay of proceedings.
[41] This inquiry places an onus on the accused to establish "actual prejudice to his or her right to make full answer and defence." As Paciocco J. (as he then was) explained in R. v. Fitts, this is a curious aspect of the doctrine because it can result in a stay of proceedings in the absence of willful, malicious or abusive state conduct:
The "lost evidence" full answer and defence Charter breach appears to be more generous than the abuse of process fair trial standard would be. An abuse of process requires conduct by a state agent "that violates those fundamental principles that underlie the community's sense of decency and fair play" [cites omitted]. By contrast, the lost evidence full answer and defence breach appears to be triggered even by an explained loss of evidence, so long as the prejudice to the ability to make full answer and defence is profound enough. The two lines of authority do not sit well together.
[42] The loss of important evidence will not inevitably mean that the right to make full answer and defence has been prejudiced. The loss must be profound enough to interfere with or impair the ability to make full answer and defence, at which point the extent of the breach and the actual prejudice to the defence is factored into the analysis of the appropriate remedy.
[43] I have already described the how the loss of the complainant's statement caused actual prejudice to Mr. Natkunarajah's ability to make full answer and defence. It deprived him of one of the most significant means of testing the complainant's credibility at trial.
[44] I turn next to the impact of that breach and the appropriate remedy under section 24(1).
v. Remedy: The Impact of the Lost Recording
[45] Mr. Natkunarajah seeks a stay of proceedings. A stay is granted rarely. It is a remedy of last resort that must meet the "clearest of cases" standard. It is an exceptional remedy because its effect is to deprive society of an adjudication on the merits.
[46] In Bero, the Court of Appeal observed that the principal considerations in determining whether a stay is warranted as a result of lost evidence are "the degree of prejudice" and "the availability of other means short of a stay to alleviate that prejudice." The former contemplates an assessment of the nature of the lost evidence and how it might have been employed to assist an accused at trial, while the second looks at the impact of the lost evidence in light of the other evidence capable of achieving that same goal. In Bradford, the Court of Appeal described the test for assessing "actual prejudice" in this way:
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.
[47] Determining the impact of the lost evidence is, of course, problematic. Some speculation is inevitable given that it involves evaluating something that is non-existent and unknown. Nevertheless, a stay will only be justified if the applicant can "show that the lost evidence prejudiced him in a substantial or material way."
[48] My review of the caselaw reveals that a stay of proceedings is not appropriate where there is an adequate substitute for the missing evidence. A stay of proceedings will generally only follow where there is no such alternative source available. In this case, the lost evidence is the only prior account given by the complainant of what she said the accused did to her, and there is no adequate substitute for it.
[49] This is a credibility case. The ability to challenge a complainant's credibility by comparing her current version of events to versions she had given in the past is frequently a crucial, if not the only means by which an accused can seek to challenge a complainant's credibility.
[50] In Sheng, a CAS worker took notes during a witness interview, the recording of which was lost. The Court of Appeal found that the worker's notes, "materially lessened any prejudice to the respondent from the evidence lost from that investigation." Similarly, with respect to a second set of lost audiotapes, the Court found that there was an "extensive written report" in relation to the interview which had been produced and disclosed to the defence. That report summarized the entire investigation and included salient features of what was said in the interviews, something which "went some distance in reducing the prejudicial impact of the evidence lost." There was other material from which the defence could launch a cross-examination of the complainants in that case which, the court found, "provided ample fodder for cross-examination" concluding that, given what the defence had available to it, the lost evidence was not so prejudicial to the respondent's defence that it warranted a stay.
[51] Here, however, there are no meaningful contemporaneous notes of the complainant's interview and no other recordings, summaries or accounts of what she said. D.C. Shaw testified that he took some notes during the interview, but they were not made part of the record, so I do not know exactly what they contained. He was not asked specifically what was included in this particular set of notes (as opposed to his general practice in taking notes), and as I understood his evidence, his notes were in any event difficult to decipher. Either way, there was no evidence of what the complainant said in her video statement.
[52] The Crown suggests that the loss of the prior statement should not result in a stay of proceedings because it also harmed the Crown's ability to prove its case. The Crown relied on the following analysis in R. v. M.B., a case in which the audio portion of a witness' recorded statement did not work:
At the same time that the defence lacked the videotape and transcripts for cross-examination the Crown lost access to a further source of evidence with which to bolster C.S.'s trial evidence. Keeping in mind it is the Crown's burden to prove the accused's guilt, a loss of evidence particularly in a "he-say-she say" case can detract from the Crown's capacity to satisfy its burden.
[53] I cannot accept that in this case there is any equivalency between the Crown and the defence in terms of the consequences of this lost evidence. The complainant's statement is only admissible in very limited circumstances. The Crown suggested it could have been used to refresh the complainant's memory at trial. This is true, but in my view that does not come anywhere close to offsetting the detriment to the defence in relation to its ability to test the complainant's evidence without the benefit of her prior statement.
[54] Although it does not appear to be a significant or perhaps even relevant consideration, I have taken into account the conduct of the defence in relation to the lost evidence. In R. v. Miniaci, although declining to enter a stay, the court commented favourably on the actions of the accused in diligently requesting and pursuing disclosure "beyond the standard which might be expected by the average accused person." In this case, counsel for Mr. Natkunarajah brought the missing evidence to the Crown's attention early on. The Crown's office did nothing about it. In my view the defence was not required to do anything further and there is nothing about the conduct of the defence which diminishes the strength of the application.
4. CONCLUSION
[55] In my view the missing audio is not a run of the mill piece of evidence. It was, to all intents and purposes, the only meaningful disclosure capable of being provided to the defence. It was the principal means by which the complainant's credibility and reliability could have been challenged at trial. There can be no doubting the potential impeachment value of a prior statement to an accused in cross-examining any Crown witness, much less the complainant.
[56] In his submissions as to Mr. Natkunarajah's guilt on the trial proper, the Crown relied on a claim that the complainant displayed no "internal or external contradictions" in her evidence. That may have been so, but it demonstrates at least in part why the prior statement was of such potential value.
[57] In my view the "appropriate and just" remedy under s. 24(1) is a stay of proceedings. Nothing short of that would be capable of mitigating the prejudice to Mr. Natkunarajah's ability to make full answer and defence.
[58] The proceedings against Mr. Natkunarajah are stayed.
Justice P. Downes
May 14, 2020