Ontario Court of Justice

Date: 2023 07 26 Court File No.: 19-70 Windsor, Ontario

Between:

HIS MAJESTY THE KING

— AND —

BROOK-LYNN BEAL-CLARK

Before: Justice Shannon L. Pollock

Argument on Application Heard on: June 1, 2023 Reasons for Judgment Released on: July 26, 2023

Counsel: Jenna Wright and Christina Eid.................................................... Counsel for the Crown Laura Joy...................................................................................... Counsel for the Defendant

DECISION ON SECTIONS 7, 11(d) and 24(1) CHARTER APPLICATION

Contents

• Introduction
• The Evidence and the Transcript
• The Law and Analysis
• Available Remedies
• Conclusion

Pollock J.:

Introduction

[1] The Applicant faces one (1) charge of impaired operation and one (1) charge of “exceed” with an allegation date of December 29, 2018. She has brought a mid-trial application pursuant to section 7, 11(d) and 24(1) of the Charter submitting that, as a result of a failure of the recording equipment to properly record all of the evidence and the proceedings at trial, her Charter right to a fair trial has been breached and the charges should be stayed.

[2] The Respondent submits that it is not entirely clear that this failure has breached the Applicant’s Charter rights and further, if there has been a breach, there are alternative remedies. The Respondent submits that the remedies include coming to an Agreed Statement of Fact with respect to the civilian witness’s evidence with the assistance of the Crown and Court’s notes of the evidence, proceeding without reliance on the civilian witness for which there is a total lack of any transcript due to the failure of the recording equipment or, lastly, a mistrial.

The Evidence and the Transcript

[3] The trial commenced on February 9, 2021 and was conducted as a hybrid proceeding with witnesses and counsel appearing remotely. This was at a time when virtual proceedings were a fairly new way of conducting matters and, as is clear from the transcript, there were difficulties with the process. There were times when the internet connection of certain participants failed and they became frozen on the screen. There were also instances where parties had to repeat themselves because they could not be heard properly. It was a frustrating process.

[4] There were three (3) witnesses called by the prosecution on the date in question. The civilian witness, whose evidence is essentially lost as the audio is inaudible and could not produce a transcript, and two (2) police officers. As it relates to the evidence of the first officer there was a significant portion of cross-examination, both questions and answers that were noted as [indiscernible] throughout the transcript. During the second officer’s evidence, the same occurred but with less frequency than the first. It is difficult to understand the evidence, as a result.

[5] Ultimately, at a date when the matter was to proceed for continuation, counsel for the Applicant asked for an adjournment to obtain a transcript of the civilian witness’s evidence which was heard on the first date. Counsel wished to have the transcript of that evidence prior to cross-examination of a police officer. When the transcript was obtained, there was no transcript available for the civilian’s evidence as the audio recording made it indiscernible. Further, for the remainder of the evidence, there are over three hundred (300) times when the transcript reflects the word [indiscernible]. There are also times within the transcript that it is noted that the audio cut out.

The Law and Analysis

[6] Section 7 of the Charter states that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[7] Section 11(d) tells us that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The right to a fair trial under this section also encompasses the right to make full answer and defence.

[8] The Ontario Evidence Act (R.S.O. 1990, c. E.23) and its regulations (O. Reg. 158/03: Certification of Recordings and Transcripts) are the authority by which the Ontario Court of Justice records and transcribes court proceedings.

[9] Those operating within the criminal justice system within the courts in Ontario and the country rely on the proper recording of proceedings. Defendants are often self-represented or represented by counsel who are appearing pursuant to Legal Aid Ontario retainers. They are most often counsel who are working without the assistance of any junior counsel or other professionals who assist in note-taking responsibilities. The process of cross-examination is often fast paced and is fluid. It is extremely difficult to take fulsome notes while also engaging in a cross-examination of a witness.

[10] Further, when trial matters do not complete within the allotted time scheduled, those matters do not just carry on until completion. They go back into the rotation for the purpose of scheduling continuations which, in busy jurisdictions with counsel who have demanding schedules, often means many months before the matters return to continue. This situation often justifiably requires reliance on a recording and/or transcript of the proceedings. It is crucial that all those participating in the justice system be able to count on a proper record being created.

[11] The Crown submits that there is no right to a transcript. I cannot disagree with that statement. However, it is a requirement that there be a proper recording of the proceedings. This obligation is one which is relied on by all parties. However, it is the protection of the rights of an accused which are paramount.

[12] The circumstances involved in the matter before me have resulted in a breach of the Applicant’s right to a fair trial and her right to make full answer and defence. The unavailability of a proper recording of the evidence in these circumstances where there were many months between the trial of a matter and its scheduled continuation and the nature of the errors within the recording are such that the Applicant’s rights have been breached.

Available Remedies

[13] Section 24(1) of the Charter provides a court who has found a breach of a Charter right to provide such remedy as the court considers appropriate and just in the circumstances.

[14] The Supreme Court of Canada has made it clear that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

[15] When the trial judge realizes that an irregularity has occurred, he or she may consider whether to declare a mistrial, but when possible, he or she may also attempt to remedy the error. The decision of whether or not to declare a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised: R. v. Khan, 2001 SCC 86 at paragraph 79.

[16] A decision on whether an incident has affected trial fairness in a way which would warrant declaring a mistrial must take into account any corrective measure which has been brought, or could be brought, by the judge to remedy the irregularity: R. v. Khan, 2001 SCC 86 at paragraph 80.

Conclusion

[17] The technological difficulties that courts continue to struggle with must be properly addressed in order for the courts to function smoothly, protect the rights of an accused and make full use of available court time. The Ontario Court of Justice continues to face a backlog of cases which has been made worse as a result of the Covid-19 pandemic. Technological failures cause further delays on an almost daily basis within our local court system. Sometimes it means the loss of court time while we wait for technological snags to be addressed. On the date set for submissions on this application, there were two (2) interruptions in the proceedings due to a difficulty with the recording equipment. In the circumstances of the trial of this case, it resulted in a loss of the evidence heard on this trial.

[18] The Crown suggested that notes taken by both the Crown and the Court could be used to create a more fulsome record of the evidence taken and to come to an Agreed Statement of Fact. This is not the answer. Relying on someone else’s notes if they are taken by pen and paper may be difficult to read. Further, each person transcribing their own notes may use short forms, symbols or point form. Notes taken may contain annotations and thoughts about the witness and/or the evidence. Also, a court should not be involved in the process of the parties coming to an agreement about the evidence. It is difficult to imagine how the issue would be resolved if there was a discrepancy between the court’s notes and that of the Crown and/or the defence.

[19] The Crown next suggested that the court could order that the prosecution proceed without the evidence of the civilian witness. That may have been an option were that the only difficulty with the transcript. However, that is not the case. The transcript is such that the evidence is difficult to comprehend as it relates to the other witnesses for whom there was a transcript provided.

[20] There are two (2) issues with the recording that are similar yet distinct from each other. This is a unique situation. One, is the total loss of the evidence of the civilian. If that were the only issue, the remedy for the resulting breach could be an exclusion of that evidence. The other issue is the capturing of some of the evidence of the police witnesses with substantial losses which are indiscernible. If that were the only issue, then a mistrial would be the appropriate remedy.

[21] If I grant a mistrial of this case, then the trial returns and there is no record of evidence which can be used for impeachment purposes in relation to the civilian witness. The trial then remains unfair. If I simply exclude his evidence from the trial before me, I am left with the issues surrounding the evidence of the officers and the trial remains unfair. The technological failures in the circumstances of this case have compromised the fairness of the Applicant’s trial.

[22] The trial started over two (2) years ago. I note that the matter went over for some period of time after the issue with the transcript was discovered in order for attempts to be made to resolve the matter. Section 11(b) rights were waived. The matter was unable to be resolved and a trial continuation would be needed in order to complete the matter. It is not unreasonable for counsel to require a transcript of the evidence in these circumstances. Further, the court may have ultimately required it in order to reach a decision on the Charter application and/or the trial proper.

[23] I have determined that this is one of the clearest of cases and that the only appropriate remedy which addresses all of the issues that have created trial unfairness and impacted the Applicant’s ability to make full answer and defence is a stay of proceedings.

Released: July 26, 2023 Signed: Justice Shannon L. Pollock