COURT FILE NO.: CR-11-024
DATE: 2012-05-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Carl O’Brien, for the Crown, Respondent
- and -
Jimmy Fiddler
Pieter Joubert, for the Defendant, Applicant
Accused
HEARD: April 10, 2012,
at Kenora,, Ontario
Mr. Justice J.S. Fregeau
Reasons on Application
Nature of the Application
[1] The defendant requests an order that the charge against him be stayed because of the loss of an April 4, 2007 audio tape (the “tape”) statement of the complainant’s allegations against him.
[2] In the alternative, the defendant requests an order that the Crown disclose various records and documents allegedly in the Crown’s possession or control and relevant to the Crown’s case against the defendant.
Background
[3] The defendant was arrested by Nishnawbe-Aski Police Services (“NAPS”) in Sandy Lake First Nations on July 2, 2010. The defendant is charged that between March 1 and 31, 2007 he sexually assaulted the complainant, C.K., contrary to s. 271 of the Criminal Code of Canada (the “Code”). The defendant was released from custody on July 12, 2010 on an undertaking requiring him to reside at a supportive housing facility in Kenora, Ontario and not to attend Sandy Lake First Nations except for court purposes.
[4] On August 11, 2010, counsel for the defendant received the initial disclosure package from the Crown. Counsel for the defendant, in his review of the disclosure, noted reference to a 2007 complaint by C.K. to the Sandy Lake First Nations NAPS detachment, apparently about the same incident. A request for further disclosure was made. The Crown provided the defendant with further disclosure on September 22, 2010.
[5] The contents of the second disclosure package received by the defendant confirmed that some form of a police investigation was commenced by the Sandy Lake First Nations NAPS detachment on April 4, 2007 as a result of a complaint being made by C.K. against the defendant. This complaint was received by NAPS Sergeant Sawanas (“Sawanas”) in Sandy Lake First Nations on April 4, 2007. A copy of Sawanas’ notebook entries for April 4, 2007 was included in the second disclosure package provided to counsel for the defendant.
[6] Sergeant Sawanas testified at the hearing of this application. Sawanas testified that he was working alone in Sandy Lake First Nations on April 4, 2007 and on “light duty” as a result of a hand injury. Due to the fact that it was Sawanas’ writing hand that was injured, he chose to tape record the complainant’s statement on a cassette recorder that was in the detachment. After recording the complainant’s statement, Sawanas also recorded, from memory and not contemporaneously, the content of C.K.’s statement in his notebook.
[7] Sawanas tested the tape to ensure it had recorded the statement, which it had. Sawanas marked the tape in some fashion and placed it in an unlocked drawer of a desk in the general office. Later that day, Sawanas took photographs of the complainant’s alleged injuries using a disposable camera.
[8] Sawanas, as required, contacted the NAPS crime unit in Sioux Lookout, Ontario in order to file a Major Occurrence Notification. This call was received in Sioux Lookout on April 4, 2007 at approximately 2:10 p.m. CST by Detective Alana Morrison (“Morrison”), who at the time was the Sexual Assault Coordinator for NAPS in the North West Region.
[9] Morrison testified at the hearing of this application. Morrison confirmed that she received this call from Sawanas. Morrison completed and filed the Major Occurrence Notification on behalf of Sawanas and instructed him to take photographs of the complainant. Morrison recalled some reference to an audio taped statement being taken. Morrison had no further recollection of this matter.
[10] Sawanas’ evidence as to what happened to the tape and photographs was inconsistent and unreliable. At one point, he testified that the tape and the photographs were packaged in some fashion the next day and “sent out” to the NAPS detachment in Sioux Lookout. He then testified that he had no specific recollection as to how this evidence was packaged or marked or whether he even had sent the package out.
[11] Unfortunately, the tape and photographs have been lost. The investigation of the April 4, 2007 complaint by C.K. did not proceed beyond that referred to herein, but for an attempt by a Sandy Lake First Nations NAPS officer to interview an alleged witness, John Goodman. When located, Mr. Goodman was intoxicated. He was not interviewed at that time. The investigation was reopened in 2010 when a victim/witness support worker assisting C.K. inquired about the truncated 2007 investigation.
[12] In November 2011, Officer Jason Gatto (“Gatto”), a member of the NAPS crime unit in Sioux Lookout was assigned to search for any information pertaining to the 2007 investigation. Gatto testified at the hearing of this application. Gatto made some inquiries, conducted a perfunctory search and found nothing.
[13] The April 4, 2007 tape recorded statement of the complainant and the photographs taken of her that day are admitted by the Crown to be relevant to this prosecution of the defendant. The Crown concedes that this evidence was lost as a result of unacceptable negligence on the part of investigating authorities.
The Lost April 4, 2007 Audio Tape Statement of The Complainant
The Applicant’s Position
[14] The applicant submits that the appropriate remedy where highly relevant evidence is lost as a result of unacceptable negligence is a stay of proceedings. Mr. Fiddler denies the allegations of the complainant. The defendant submits that the credibility of the complainant at trial will therefore be crucial. It is submitted that the complainant’s 2007 statement is highly relevant, representing the substance of her allegations against the defendant at a point in time proximate to when the assault is alleged to have occurred. The defendant will be denied an opportunity to cross examine the complainant on any inconsistencies between the April 4, 2007 statement, a video statement taken in 2010, the complainant’s evidence at the preliminary inquiry and the complainant’s evidence at trial.
[15] The applicant acknowledges that Sawanas, after tape recording the complainant’s statement, entered his recollection of it in his notebook. The applicant submits that this version of the complainant’s statement is materially different from her 2010 statement. It is submitted that the ability to effectively cross examine the complainant on material differences in the two statements is compromised due to the absence of a verbatim version of the 2007 statement. It is submitted that Sawanas’ notebook entries were not made contemporaneously with the taking of the complainant’s statement. It is further submitted that the complainant could simply testify that Sawanas recorded her allegations incorrectly. It is submitted that the effect of the defendant’s cross examination of the complainant is dulled as a result.
[16] The applicant submits that the loss of this statement and the resultant limits placed on cross examination has denied him the opportunity to make full answer and defence, contrary to section 7 of the Canadian Charter of Rights and Freedoms. The applicant submits that allowing the trial to proceed in a situation where he is denied the opportunity to make full answer and defence results in actual prejudice to him. It is submitted that an adjournment is of no assistance and that the only appropriate remedy is a stay of proceedings.
The Position of the Crown
[17] The Crown submits that the loss of the tape, while admittedly the result of unacceptable negligence, was inadvertent. It is submitted that the 2010 investigation of C.K.’s 2007 complaint includes a video tape statement of her allegations against the accused. This is suggested to be a detailed account of the alleged offence and a sufficient substitute for the lost statement. The Crown submits that the 2010 video statement allows the defendant to fully cross examine the complainant at trial.
[18] The Crown further submits that a stay of proceedings is a drastic remedy of last resort. It is submitted that a stay of proceedings is not an appropriate remedy in a situation of lost disclosure as a result of inadvertence.
Discussion
[19] A thorough discussion regarding lost evidence and whether a stay of proceedings is the appropriate remedy is found in R. v. Bradford 2001 24101 (ON CA), [2001] O.J. No. 107 (Ont. C.A.) at paragraphs 4 to 7:
- The current state of the law respecting the impact of lost evidence and when a stay should be granted is succinctly summarized in R. V. B. (F.C.) (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547-8, leave to appeal to the Supreme Court of Canada denied, [2000] S.C.C.A. No. 194: The basic principles...were summarized by Sopinka J. in R. v. La, supra, commencing at para. 16. Those principles derived from R. v. Stinchcombe (No.1), 1991 45 (SCC), [1991] 3 S.C.R. 325, 68 C.C.C. (3d), 1; R. v. Egger, 1993 98 (SCC), [1993] 2 S.C.R. 451, 82 C.C.C. (3d) 193; R. v. Stinchcombe (No. 2), supra; R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, 96 C.C.C. (3d) 225; R. v. O’Connor [(1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.]; and R. v. Carosella, supra, and further developed in La, are: (1) The Crown has an obligation to disclose all relevant information in its possession. (2) The Crown’s duty to disclose gives rise to a duty to preserve the relevant evidence. (3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence. (4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. (5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it. (6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights. (7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation. (8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor. (9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be on appropriate remedy. (10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence. The O’Connor criteria referred to in the eighth point are as stated by Justice L’Heureux-Dube at para. 82 of O’Connor:
It must always be remembered 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.
Earlier, in O’Connor, supra, the two criteria for a stay referred to in the eighth point are expressed by Professor Paciocco and adopted by L’Heaueux-Dube J., at p. 41, as comprising: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is capable of removing the prejudice.
In assessing the prejudice to the accused’s right to make full answer and defence as secured by s. 7 of the Charter, it is important to bear in mind that the accused is entitled to a trial that is fundamentally fair and not the fairest of all possible trials. As stated by McLachlin J. in O’Connor, supra, at pp. 78-79: ...the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial that is fundamentally fair; R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice but fundamentally fair justice.
In a similar vein, Justices McLachlin and Iacobucci commented in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 at 718 that fundamental justice embraces more than the rights of the accused and that the assessment concerning a fair trial must not only be made from the point of view of the accused but the community and the complainant. The fact that an accused is deprived of relevant information does not mean that the accused’s right to make full answer and defence is automatically breached. Actual prejudice must be established; Mills, supra, 719-720, citing R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680 at 693.
[20] I accept that the credibility of the complainant will be crucial in the defendant’s trial. The complainant’s credibility will be assessed based on the content of both her direct examination and cross examination as well as on her demeanour while testifying. The more “tools” available to counsel on cross examination of a complainant in a sexual assault case, the more effective the cross examination can potentially be. One of the tools which is relevant and very useful for the cross examination of a complainant in a sexual assault case is a prior statement of the complainant wherein she recites her allegations against the accused. In this case, such a statement was given by the complainant shortly after the incident is alleged to have occurred. This statement has been lost and the defendant is therefore denied the use of this statement during cross examination.
[21] However, this alone does not establish that irreparable harm to the right to make full answer and defence has occurred. In this case, the defendant has available to him Sawanas’ notebook entries detailing the officer’s recollection of the complainant’s statement, recorded shortly after the statement was given. Presumably, Sawanas would be available for questioning at trial. The defendant also has available to him the complainant’s 2010 video statement. This can be used to challenge the complainant’s credibility at trial. The defendant will have both the direct and cross examination of the complainant from the preliminary inquiry available to him to challenge the credibility of the complainant at trial.
[22] It would obviously be preferable for the defence to have the complainant’s April 4, 2007 audio statement. While the job of defence counsel is made more difficult because of the missing statement, I do not see that the defendant will be deprived of the ability to make full answer and defence, if what is available to him to challenge the credibility of the complainant is utilized effectively. This is not one of those “clearest of cases” in which a stay of proceedings, effectively acquitting the defendant, is necessary in the interests of justice.
[23] The defendant’s application for a stay of proceedings due to the loss of the complainant’s April 4, 2007 audio statement is dismissed.
Additional Material The Applicant Seeks To Have Disclosed
[24] At the hearing of the application, the Crown undertook to disclose the following:
Any occurrence report from April 4, 2007;
The occurrence log from the NAPS Sandy Lake First Nations detachment, dated April 4, 2007;
The Major Occurrence Notification Report from the Sioux Lookout NAPS detachment, dated April 4, 2007;
Any relevant notebook entries of Detective Morrisson;
Any email correspondence between Sawanas and Gatto which relates to this matter;
A redacted version of a Crown brief for a Richard Linklater in which C.K. is the complainant.
[25] Disclosure of the following material, resisted by the Crown, is sought by the applicant on this application:
Copy of all materials in the possession of the Crown and NAPS touching upon the credibility and character of the complainant including disclosure of CPIC/Occurrence/RMS reports and criminal record;
Written confirmation that the Crown has made reasonable inquiries to NAPS and within its own office with respect to other complaints of the complainant, and to the extent that any may exist, disclosure of their existence to permit counsel to decide what if any further request to make;
Copy of all materials in the possession of the Crown or NAPS touching upon the credibility and character of the other material witnesses in this matter including witnesses the Crown intends to call, witnesses the defence intends to call and the defendant;
Copy of the Crown witness list.
Position of the Applicant
[26] The applicant submits that material relating to the complainant (items 1 and 2 above), but unrelated to the current case, is subject to the broad Stinchcombe disclosure obligations. The applicant submits that these reports, if any exist, are relevant in the context of disclosure, as they may impact on the credibility of the complainant. The applicant submits that this information is first-party disclosure and not “records” as defined in s. 278.1 of the Code. The applicant submits that this information should not be the subject of a third party records application. The applicant submits that they must therefore be disclosed by the Crown upon request.
[27] The applicant submits that they are entitled to disclosure of all information in the possession or control of the Crown or NAPS touching upon the issues of character and credibility of all material witnesses, Crown and defence, including the defendant. The applicant submits that the material relates to the character and credibility of witnesses, is of obvious relevance and is required by the defence to prepare for trial. The applicant submits that this information will either be in the Crown’s possession or readily obtainable through NAPS. The applicant disputes that any of this materials is “records” as defined in s.278.1 of the Code.
[28] The applicant seeks disclosure of a list of witnesses the Crown intends to call at trial, submitting that this information is relevant and promotes effective case management. The applicant submits that disclosure of this information advances the interests of justice generally and helps to minimize unnecessary adjournments and delay.
Position of the Crown
[29] The Crown submits that the material relating to the complainant, but unrelated to the case against the defendant, falls under the definition of “records” in s. 278.1 of the Criminal Code and is not subject to the Stinchcombe disclosure regime. The Crown submits that the disclosure of these “third party” records must be sought pursuant to section 278.2 of the Criminal Code.
[30] The Crown submits that police occurrence reports and related information regarding potential witnesses have not been shown to be of “likely relevance” and are therefore not required to be disclosed. The Crown submits that these documents are not in the possession or control of the “prosecuting Crown” and are not within the scope of Stinchcombe. Finally, the Crown submits that such documents are also “records” as defined in the Code and that they are therefore outside the ambit of Stinchcombe first-party disclosure.
[31] The Crown submits that they are under no legal obligation to disclose a list of the witnesses they intend to call at trial. The Crown submits that they have provided statements of all potential witnesses to the defendant. The Crown submits that the decision as to which of its potential witnesses it will call at trial is a matter of Crown discretion and they are not, and should not be, required to disclose this information to the defendant.
Discussion
Information Pertaining to the Complainant Unrelated to the Subject Investigation
[32] The defendant has requested disclosure of “all material in the possession of the Crown or NAPS touching upon the credibility...of the complainant including...CPIC/Occurrence/RMS reports and criminal record”.
[33] The Crown is the prosecuting authority and NAPS is the investigative body for the charge against the defendant. This request for disclosure is limited in physical scope to these two bodies. The material sought is readily obtainable by the Crown and is in their possession and control in the context of a disclosure request.
[34] The issue to be determined is whether, in the circumstances, this information is within the Stinchcombe first party disclosure regime, which would compel the Crown to obtain and disclose it, or whether its disclosure is otherwise governed by law, in this case, s. 278.3 of the Code, requiring the defendant to proceed with a third party records application. As noted by Stinson J. in R. v. McAdam 2008 20346 (ON SC), [2008] O.J. No. 1740, at paragraph 8, the issue is not whether the records should or should not be produced to the applicant, but rather whether the applicant must comply with section 278.3 of the Code in order to compel production.
[35] The Supreme Court of Canada discussed the application of the third party records provisions of the Code to a disputed disclosure application in R. v. McNeil, [2009] 1 S.C.R., at paragraph 21:
“As this court concluded in Mills, it was open to Parliament to enact, as it did, a statutory regime for the disclosure of records containing personal information of complainants and witnesses in proceedings for sexual offences under ss. 278.1 to 278.91 of the Criminal Code, R.S.C. 1985, c. C-46. Absent an express waiver from the complainant or witness to whom the record relates, production of all records falling within the Mills regime, whether in the possession or control of a third party or of the prosecutor in the proceedings, can only be made on application to the court and in accordance with the balancing test set out in the Code provisions. This statutory regime therefore constitutes an exception to the common law regime of Crown disclosure under Stinchombe.”
[36] The issue of whether occurrence and related reports generated in unrelated investigations falls within the definition of “record” was addressed by Spies J. in R. v. R.L. [2007] O.J. No. 4095 and followed by Stinson J. in McAdam in the context of offences within s.278.2(1)(a) of the Code:
“The definition of “personal information” in the Municipal Freedom of Information and Protection of Privacy Act is sufficiently broad to encompass police occurrence reports. As such, they are susceptible of protection under that statute. I hasten to note that this does not automatically mean that their production or disclosure is prohibited, rather that the person responsible for those records must comply with that statute before producing them. As a result, in my view, such records do fall within the scope of records whose disclosure is protected by an act of a provincial legislature. As such they fall within the scope of s. 278.1.”
[37] Stinson J., in McAdam, considered the case of R. v. Bottineau, 2005 63780 (ON SC), [2005] O.J. No. 4034 (S.C.J.) in which Watt J. ordered the disclosure of occurrence reports that had to do with misconduct of Crown witnesses largely unrelated to the circumstances that gave rise to the prosecution. Stinson J. distinguished Bottineau, finding that the decision did not address the potential application of the definition of “record” in s. 278.1 because the charges in that case did not come within the scope of s. 278.2(1).
[38] Police occurrence reports and related records pertaining to the complainant in regard to unrelated investigations contain “personal information” as defined in the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Chapter F. 31. The production or disclosure of same is protected by this statute. This brings this information within the definition of “record” in section 278.1 of the Code. Their production or disclosure is not necessarily prohibited. However, their production must be sought pursuant to section 278.3 of the Code. The applicant’s request for disclosure of this material is dismissed.
The Complainant’s Criminal Record
[39] I do not accept that the complainant’s criminal record is a record for which there is a “reasonable expectation of privacy”. It does not fall within the definition of “record” in s. 278.1 of the Code. It is relevant information in the case against the defendant and the Crown is ordered to disclose it to the defendant.
Disclosure by the Crown of the Existence of Other Complaints of the Complainant
[40] The applicant requests an order compelling the Crown to make “reasonable inquiries” to NAPS and within its own office with respect to other complaints of the complainant. If any exist, the applicant requests the Crown be ordered to disclose their existence in order that he may determine if a further request is warranted.
[41] As stated by Charron J. in McNeil, the Crown is not simply a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant information. Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so. See McNeil, paragraphs 48 and 49.
[42] In the case of the defendant, the Crown has been put on notice that defence counsel has been contacted by members of the defendant’s community and advised that the complainant had been involved in similar prosecutions in which her veracity was in question. In these circumstances, the information sought by the applicant is of obvious relevance. One would also assume that this information would be of interest to the Crown in order to fully assess the merits of this case.
[43] The Crown is ordered to inquire of NAPS and within its own office to determine the existence of other complaints of sexual offences made by C.K. If any should exist, the Crown is ordered to disclose their existence to defence counsel.
Information Pertaining to Material Witnesses, Crown and Defence, and the Defendant
[44] The applicant seeks disclosure of “all materials in possession of the Crown or NAPS touching upon the credibility of the other material witnesses in this matter including...”Crown and defence witnesses and the defendant.
[45] For the reasons stated above, I find that occurrence reports in unrelated investigations which involve witnesses in this prosecution, Crown or defence, fall within s. 278.1 of the Code. The defendant must therefore follow the statutory regime set out in s. 278.3 of the Code in order to obtain those records. Should the defendant intend to call defence witnesses, presumably they would be prepared to provide an express waiver to the Crown, as suggested in McNeil, allowing for the disclosure of any records impacting on their credibility. Upon receipt of such a waiver, the Crown would have no grounds upon which to refuse disclosure of this information.
[46] The CPIC/criminal records of any witnesses, Crown or defence, for the reasons stated above, are not records within the definition set out in s. 278.1 of the Code. This information is relevant and I order that it be disclosed to the defendant.
Crown Witness List
[47] There is no authority requiring the Crown to disclose to the defence a list of which of its potential witnesses it intends to call at trial. This issue was dealt with in a clear and concise fashion in R. v. Pinkus [1999] O.J. 5464, at paragraphs 8 and 9:
The “information” which the defence seeks is, in my view, not the kind of information which is subject to an order for disclosure. What the defence claims to be entitled to is the Crown “plan” for the presentation of its case. This, undoubtedly, is information in the possession of the Crown. It is, however, not subject to disclosure for the very reason that the Crown plan is something which is in its own discretion, which is unfettered, and properly so, absent bad faith or oblique motive. See Cook (1997) 1997 392 (SCC), 114 C.C.C. (3d) 481 (S.C.C.).
The law relating to Crown disclosure should not be confused with the law relating to Crown discretion. The decision whether to call a witness is solely within the discretion of the Crown. The decision whether to call a witness may change, given the dynamics of the trial process. Discretion is therefore an evolving concept, just as the trial itself. Discretion cannot be interfered with by the Court. For the Court to order the Crown to inform defence as to whether a particular witness will be called would effectively trump Crown discretion. One cannot be said to have discretion if one is ordered to disclose how discretion will be exercised.
[48] While the Crown is not under a legal obligation to inform the defence in advance its intention to call particular witnesses, it is certainly preferable that they do so. This would contribute to efficient and effective case management and minimize potential delays.
The Hon. Mr. Justice J.S. Fregeau
Released: May 7, 2012
COURT FILE NO.: CR-11-024
DATE: 2012-05-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Jimmy Fiddler
REASONS ON APPLICATION
Fregeau J.
Released: May 7, 2012
/sf