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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. J.D., 2022 ONCJ 117

DATE: 2022 03 08

COURT FILE No.: Windsor 19-5703

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.D.

Before Justice S. Pratt

Heard on 9 December 2021

Reasons for Judgment released on 8 March 2022

Megan Cleland.................................................................................... Counsel for the Crown

Patrick Ducharme....................................................................... Counsel for the Defendant

Pratt J.:

[1] On 21 June 2021, the trial of J.D., hereinafter the Defendant, began. He is charged on Information 19-5703 with multiple counts of sexual assault and one count of forcible confinement. All charges relate to his former spouse H.M., hereinafter the Complainant. The Crown called the Complainant as its first witness. She testified by videoconference. At a break in her testimony, it was discovered that she had with her a sheet of paper on which she had written brief summaries of each incident. She had also summarized an incident that did not form the basis of a charge. The Defendant now applies under s. 24(1) of the Charter of Rights and Freedoms for a stay of proceedings, or in the alternative for a mistrial because the evidence of the Complainant has been tainted by her use of these summaries and as a result the trial has been rendered unfair. The Crown opposes the application. For the following reasons, the application will be dismissed.

Background

[2] The Court has heard that the Complainant and Defendant were in a relationship from 2009 and were married in 2015. In the course of her evidence in chief, the Complainant detailed several incidents of alleged sexual assault. She has not yet been cross-examined on the trial proper.

[3] At the conclusion of the morning recess on 21 June, I was advised that a possible disclosure issue had arisen. Counsel told me that when the Victim Witness Assistance Program worker went into the room where the Complainant was testifying, she saw that the Complainant had notes on the desk in front of her. Those notes were copied and disclosed to the defence. After discussion between counsel, the matter was adjourned for the defence to consider its options. On 9 December 2021, this mistrial application was heard. The only testimony on the application came from the Complainant. The notes she made were filed as an exhibit on the application. No other evidence was called or filed.

Positions of the Parties

[4] The Defendant argues that his trial has been made unfair. He says the only logical inference from the notes being in front of the Complainant while she was testifying is that she used them to assist her memory. He makes the entirely valid point that a witness who is able to testify with the aid of notes will often appear more credible than one who has no such assistance. As the Complainant is likely the only witness being called by the Crown, and the defence position is that the allegations have been fabricated, her credibility is central to the disposition of these charges. What’s more, she has testified to an event similar to the charged offences but that does not itself make up one of the counts. Including this additional incident is prejudicial to the Defendant.

[5] He submits that a stay of proceedings is the only remedy that can effectively address this situation. Continuing with the trial, he says, would only perpetuate the unfairness. It would also subject him to further delay in having this matter resolved.

[6] In the alternative the Defendant seeks a mistrial. The use of the notes has created a prejudice that is too great even for a judge sitting alone to overcome. To obtain the fair trial to which he is entitled, a mistrial must be declared and the trial begun again before a different judge.

[7] The Crown points out that a stay of proceedings is a remedy of last resort, appropriate only in the clearest of cases and when no lesser remedy will suffice. For a stay to be granted, even re-starting the proceeding before a different court must be found to be insufficient. A court must find the prejudice from the claimed abuse would be manifested, perpetuated, or aggravated by allowing the prosecution to continue (See: R. v. Reagan 2002 SCC 12, [2002] 1 S.C.R. 297).

[8] This is also, the Crown says, not a case where a declaration of a mistrial would be appropriate. The Crown argues that such a remedy is itself a remedy of last resort, reserved for the clearest of cases. The nature of the alleged abuse in the present case, together with the evidence heard on the application, does not make a mistrial necessary. The Crown argues that full cross-examination of the Complainant will be sufficient to address any concerns this Court may have regarding the impact of the notes. The Crown argues that there is no evidence the notes played a role in amplifying the Complainant’s credibility. Regarding the uncharged allegation, the Crown states that trials are fluid. The additional incident was disclosed to police, but no corresponding charge was laid. The Crown submits that the Court disabusing itself of this allegation is all that is needed to preserve the fairness of the trial.

Analysis

[9] The Defendant bears the burden of showing that he has been prejudiced by the alleged abuse and that he deserves the remedy sought as a result. He must make these showings on a balance of probabilities. To determine if he has met that burden, I must consider the evidence heard on both the application and the trial.

[10] The Complainant testified that she made the notes in question on the morning of her testimony. She said she was put in the room where she testified and left alone by the Victim Witness Assistance Worker. The worker was only identified as Angela, but this Court knows her to be Angela Williams. Ms. Williams was not present in the room when the Complainant was testifying. The Complainant said that there was a pad of paper and a pen on the desk where she was sitting. As she was feeling tremendous anxiety about testifying, she began writing out summaries of the incidents as a coping mechanism. She likely did this in the minutes after she was placed in the room but before her testimony began. She said that once she began testifying, she did not refer to the notes at all.

[11] At a break, she said Ms. Williams entered the room to see how she was doing. She told her she wasn’t doing that well and showed her the notes she’d written to help calm herself. Ms. Williams looked at the notes and told her she would have to notify the Crown of their existence.

[12] In cross-examination, it was put to the Complainant several times that she used the notes to aid her testimony. She denied that suggestion each time it was made. It was also put to her that Ms. Williams “discovered” the notes and “confronted” the Complainant about them. Again, she denied that suggestion each time those words were used. It was further suggested that she gave Ms. Williams no explanation about the anxiety she was feeling that day or how that led to her making the notes. She was steadfast in her testimony that writing the notes was meant to help calm her nerves, that she told Ms. Williams as much, and that she actively brought the notes to Ms. Williams’ attention when she entered the room.

[13] Suggestions were put to the Complainant about what Ms. Williams may say regarding the notes. The following exchange took place during the cross-examination of the Complainant on the application:

COUNSEL: Now we understand that as it neared the end of your evidence where you were being questioned by the Crown, there was a break in the testimony and the victim witness assistant discovered that you had in you possession a handwritten summary of the allegations. Do you agree with that?

WITNESS: Sir, she did not discover it. I told her that I had written it down, and I told her, don’t remember exact word for word how and what I told her it was or wasn’t, but I’m sure I told her that I had written things down in regards to what was on my mind to deal with how I was doing with my anxiety.

COUNSEL: Well I anticipate that she will give some evidence about this, so I want to be clear here, when are you saying that you told her that, if you’re sure that you told her, when did you do that?

WITNESS: She had come into the room, right at the door, she stood at the door, and, uh, she asked me, she came into the room two or three times. She asked me the one of those times, how you doing, how you hanging in there, is everything ok and I had told her no I’m not doing ok I wrote things down to cope with how I’m feeling, and I must have kind of elaborated on what I wrote down and then she told me oh ok, and she looked at it briefly and said I have to let Megan know about this.

[14] And later:

COUNSEL: And I expect that she may say that you used those notes to assist you in giving your evidence.

WITNESS: I say that’s untrue because I did not do that nor was she in the room ever while I was testifying.

(Emphasis added)

[15] I repeat that the only witness called on the application was the Complainant. Ms. Williams did not testify, nor was any agreed statement put forward setting out what she would say if called. I have no evidence from her. It is trite law that the suggestions of counsel are not evidence unless they are adopted by a witness. In the present case, none of the suggestions made to the Complainant in cross-examination regarding her use of the notes or their emergence in this case were agreed to. There is no evidence that contradicts the claims of the Complainant. Specifically, there is no evidence that she was using the notes to assist her in her testimony and no evidence that the notes were “discovered” by Ms. Williams.

[16] I add, of course, that just because the Complainant’s testimony on these points is the only evidence I have on them, I am not obligated to accept it. I must still assess her credibility and reliability and decide what portions of her evidence I can accept, if any.

[17] As her evidence relates to the creation of the notes, the purpose of that creation, and how they came to the Crown’s attention, I find the Complainant to be a credible witness. Her answers were clear and consistent despite a detailed and persistent cross-examination. I noted no obvious flaws, nor were any pointed out to me. It is not necessary for me to go any farther in my assessment as the burden in this application lies with the Defendant. It is he who must convince me, not the Complainant.

[18] The Defendant’s quarrel with the notes is, as I’ve said, twofold. The first is with respect to the Complainant using the notes to aid her memory of events. The second is the fact that the notes include reference to an incident that does not form the basis of any counts in the information. He argues that by testifying to uncharged events, the Complainant has prejudiced the Defendant and compromised the fairness of this trial.

[19] The Complainant was asked about including that allegation in the notes and testifying to it. She said she told police about it and had no idea which allegation resulted in which charge. She was not made aware the incident in question was not charged until the hearing of this application.

[20] It must be remembered that aside from privately laid informations, it is the police who lay criminal charges in Canada, not alleged victims. Typically, an accusation is made. Police investigate. That investigation may include taking a statement from the complainant, as well as obtaining evidence from other sources. Once that evidence is collected, the police, sometimes in consultation with the Crown, decide whether to lay charges and if so, what charges. The complainant is not part of that decision. He or she may be told when charges are laid but plays no direct role in that decision. It is not surprising to hear that the Complainant in the present case was not aware which incident (recall, there are several alleged) corresponds to which counts. I attribute no nefarious motive to her inclusion of the uncharged incident in her testimony.

[21] Has the Defendant proved on a balance of probabilities that he has been irrevocably prejudiced by the conduct of the Complainant in her testimony such that a stay of proceedings or mistrial is necessary?

[22] He has not.

[23] In my view, he has fallen short of proving any prejudice in this case that cannot be remedied by full cross-examination of the Complainant and an instruction to myself to disregard the evidence related to the uncharged incident.

[24] As the Defendant himself points out at paragraph 22 of his application, a stay of proceedings is a remedy reserved for the clearest of cases. For a court to impose a stay, there must be “overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice.” (See: R. v. Power 1994 CanLII 126 (SCC), [1994] S.C.J. No. 29). There must be no other remedy capable of addressing the abuse claimed. Even taken at its highest, the creation of short summaries in a case that involves multiple allegations over the course of nearly a decade, would not result in prejudice so severe that the only appropriate remedy is the end the prosecution. This is not one of the clearest of cases.

[25] The test for granting a mistrial was set out by the Court of Appeal for Ontario in R. v. Osborne 2017 ONCA 129, [2017] 134 O.R. (3d) 561 at paragraph 81:

The declaration of a mistrial is a remedy of last resort, reserved for the clearest of cases, where no remedy short of a mistrial will adequately redress the actual harm occasioned. A mistrial should only be ordered where it "is necessary to prevent a miscarriage of justice": R. v. G. (A.) (2015), 124 O.R. (3d) 758, [2015] O.J. No. 1217, 2015 ONCA 159, at para. 50; R. v. Chiasson, [2009] O.J. No. 4682, 2009 ONCA 789, at para. 14; R. v. Burke, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 2002 SCC 55, at para. 77.

[26] The test is functionally equivalent to the test for a stay. That said, there clearly must be some sort of hierarchy between these remedies. A mistrial, to put it plainly, is the reset button. A stay, conversely, is the off switch. While the test for a mistrial is defined as the same as the test for a stay, there must be some difference. A mistrial does not have the permanence of a stay. There will be cases where a stay is not appropriate, but a mistrial is. In those cases, the prejudice involved can be addressed by restarting the trial. It is not necessary to stay the charges.

[27] The Defendant has not shown that a mistrial is the only appropriate remedy in this case. As I noted in denying a stay of proceedings, full cross-examination and this Court disabusing itself of the uncharged allegation will be sufficient to address whatever prejudice may have befallen the Defendant. To be clear, in my view, any such prejudice is minimal.

[28] There is no question that a witness should not have written materials in their possession at the time of testimony without the knowledge of the parties and permission of the Court. Courts are interested in what witnesses have to say, not in what they can read from notes. Counsel for the Defendant argued this point when he said that if this had been an exam and the Complainant had been found to have notes with her, she would receive a failing grade. Testifying, he said, is like an exam.

[29] With the utmost of respect, I disagree. A trial is not a quiz where the contestant with the best memory wins the prize of a desired result. It is an attempt to get at the truth. As stated by the Supreme Court of Canada in R. v. R.J.S. 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451 at par. 232:

The admission of such evidence appeared to flow from the principle that the criminal law trial is a truth-seeking process…

[30] See also R. v. Barton 2019 SCC 33, [2019] S.C.J. No. 33; R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353; and Justice L’Heureux-Dube’s dissent in R. v. L.(D.O.) 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419.

[31] This does not mean there are no protections for a defendant when the justice system engages in its search for truth. It is not truth at all costs. The Charter of Rights and Freedoms, Parliament, and 150 years of caselaw have all enshrined crucial protections when a citizen finds themselves accused of criminality by the state. But none of those safeguards require perfect recitation of allegations from memory in the crucible of the witness stand. Witnesses are permitted to refresh their memory while testifying by reviewing their statement. Prior statements can be admitted for their truth in appropriate circumstances. The justice system allows for this.

[32] The main complaint here is that the Complainant refreshed her memory in secret. I am not persuaded that she did. She can be cross-examined on her allegations at trial. I will give no weight to the uncharged allegation and will disregard that evidence.

Appearance of Unfairness

[33] I will address this area as I brought it up during the Crown’s submissions. While it was an issue I thought was important, on reflection I think it less so.

[34] On the evidence I’ve heard, a nervous witness wrote some notes in the moments before testifying. She then put them to the side and gave her evidence. She freely showed the notes to the victim witness support worker. She made no attempt to hide them.

[35] To the extent that there is any appearance of unfairness, I find that full cross-examination and disregarding the uncharged incident sufficiently addresses it.

Result

[36] The application for a mistrial is dismissed.

Released: 8 March 2022

Signed: Justice S. G. Pratt