COURT FILE NO.: 13098/12

DATE: 2013-07-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – C.M.W.

Counsel: Tammy D’Eri and Lara Crawford, for the Crown Stephanie Di Giuseppe and Jennifer Penman, for the Defendant

HEARD: June 7, 2013

SOSNA J.

C.M.W. RULING RE: LOST EVIDENCE

1The Applicant, C.M.W. (C.M.W.) seeks a stay of proceedings pursuant to s. 24 (1) of the Canadian Charter of Rights and Freedoms on count 2 in a multiple count indictment. Count 2 alleges that C.M.W.:

…on or about the 14 day of September in the year 2007, at the City of Oshawa in the Province of Ontario, did commit a sexual assault on A.A. contrary to section 271, subsection (1), of the Criminal Code.

2C.M.W. argues that his ss. 7 and 11(d) Charter rights were breached by the unacceptable negligence of the police in failing to retain a videotaped statement made by A.A. concerning her allegations of spousal abuse on September 14, 2007. He submits that his right to a fair trial and right to make full answer and defence have been irreparably prejudiced by the negligent actions of the police.

THE FACTS

3C.M.W. and the complainant A.A. (A.A.) were in a seven-year domestic relationship from 2004 through 2011 during which she alleges in count 2, and companion counts in the indictment, that she was physically and sexually abused by him.

4On September 14, 2007, A.A. called 911 and reported she had been assaulted by C.M.W.. On the same day she gave a video statement to the police providing details of the assault.

5In the video interview synopsis of A.A.’s video statement, she reported that C.M.W. was taking oxycontins and he lost it. She alleged she was assaulted when C.M.W. struck her in the face two or three times, threw a knife at her, grabbed her arms and pulled her hair. When asked if she wanted to speak to a female officer A.A. stated that she would not talk to any officers about sexual assault.

6On December 2, 2007, A.A. provided a recantation letter to C.M.W.’s then defence counsel, indicating that on September 14, 2007, it was not C.M.W. that assaulted her but her ex-boyfriend. Despite the recantation, on January 24, 2008, C.M.W. pled guilty to assault with a weapon in relation to the September 14, 2007, allegations.

7Four years later, on November 3, 2011, A.A. provided a statement to the police alleging again that on September 14, 2007, it was C.M.W. and no other party that had assaulted her. She reported that in the course of that assault, C.M.W. also sexually assaulted her when she was forced to perform anal intercourse and fellatio.

8At the preliminary hearing on June 14 and 18, 2012, A.A. testified as to the circumstances surrounding both the physical and sexual assault she alleged. In part, that evidence will be reviewed later in this judgement.

9On April 24, 2013, C.M.W. requested disclosure from the Crown of A.A.’s September 14, 2007 video statement. This video had not been requested prior to his guilty plea to assault on January 24, 2008. On May 23, 2013, C.M.W. was advised that neither the Crown nor the police could provide a copy of the statement.

10In attempting to comply with the disclosure request, the Crown contacted the Officer-In-Charge, the officers involved in the 2007 investigation, as well as the Video Disclosure Unit. Police Constable Johns, who conducted the 2007 interview, advised that he did not have the video statement and stated that he had put it in the internal courier to be sent to the Video Disclosure Unit. The Video Disclosure Unit advised they did not have the video.

THE LAW WITH RESPECT TO LOST EVIDENCE

11In R. v La, [1997] 2 S.C.R. 680, paras. 20 the Supreme Court of Canada provided the following guideline in assessing a s. 7 Charter application in the context of lost evidence. The following are a compilation of principles derived from paras. 20-24:

(1) The obligation of the Crown to disclose all information likely relevant to an accused’s case, as outlined in R. v. Stinchcombe, [1991] 3 S.C.R. 326, imposes a duty on the Crown and the police to preserve all relevant evidence;

(2) Where the Crown is unable to comply with disclosure obligations because evidence has been lost through unacceptable negligence, an accused’s rights under sections 7 and 11(d) of the Charter have been infringed. The onus of establishing that the explanation for losing the relevant evidence does not amount to unacceptable negligence rests with the Crown;

(3) Assessing the appropriate remedy pursuant to the Crown’s failure to disclose and in particular whether a stay is available should be examined in relation to the Court’s ruling in R. v. O’Connor, [1995] 4 S.C.R. 411.

12In O’Connor the Court held at para. 83:

Where life, liberty or security of the person is engaged in a judicial proceeding, and it is proved on a balance of probabilities that the Crown’s failure to make proper disclosure to the defence has impaired the accused’s ability to make full answer and defence, a violation of s. 7 will have been made out. In such circumstances, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the prejudice to the accused’s ability to make full answer and defence or to the integrity of the justice system is irremediable. In those “clearest of cases”, a stay of proceedings will be appropriate.

THE POSITION OF THE PARTIES

13The Crown argues that the unavailability of the video is not the result of unacceptable negligence because of a failure to preserve it, or deliberately destroy it by either the Crown or the police. If the Court finds unacceptable negligence, the Crown argues that a stay of proceedings should only be granted in the “clearest of cases” (R. v. GS 2010 ONCA 296, 266 O.A.C. 159). The Crown argues this matter does not meet that standard.

14The Applicant submits that the Crown has not met its onus in establishing that the Crown has failed to provide the video absent unacceptable negligence.

15As to the issue of a stay of proceedings, the Applicant argues that the prejudice in not having the video available is high, given that the video regarding the events of September 14, 2007, was made close to the event, and that the evidence of A.A. at the preliminary hearing and trial differs in many ways from the synopsis of her video prepared by the police. Therefore, the impeachment value of the video made in 2007 is critical for use by the defence. In these circumstances, the unavailability of the video breaches the Applicant’s right to make full answer and defence and have a fair trial.

WAS THE LOSS OF THE 2007 VIDEO DUE TO UNACCEPTABLE NEGLIGENCE?

16In a sworn affidavit (Tab 11 of the Crown’s Respondent Record), Police Constable Robin Johns in part attests to the following:

Paragraph 6. Following the taking of the video statement, I would have placed the video in the courier to be delivered to the Video Disclosure Unit. This is my usual practice….This was done pursuant to my usual training and is the required procedure.

Paragraph 8. I am not aware of other videos I have submitted that have gone missing as a result of this practice of submitting it in an internal courier to be sent to the Video Disclosure Unit.

17I disagree with the Crown submission that the explanation proffered by Police Constable Johns is satisfactory and negates a finding of unacceptable negligence. At best, Police Constable Johns attests not to what he actually did, but what in accordance with his training and practice he would have done in transferring the video to the Video Disclosure Unit. When pressed, the Crown conceded that Police Constable Johns did not prepare any independent written documentation of transfer, or, record, in his police notebook, the date, time, and place of that transfer.

18Furthermore other than a general explanation regarding the duties of the internal courier, the Crown did not call any evidence, submit any affidavits, or provide any written documentation from either the internal courier or the Video Disclosure Unit that the video was picked up by the courier and transferred to the Video Disclosure Unit. At best the Crown could only advise that the Video Disclosure Unit had no record of the video transferred to its custody.

19The Crown submits that the very nature of the disclosure process makes it prone to human error and evidence will occasionally be lost. The Crown contends unacceptable negligence must be conduct which goes beyond inadvertence or accident. In the present case, the Crown argues that the police took reasonable steps to preserve the video for disclosure and the loss of that evidence does not automatically equate to a breach of the Crown’s disclosure obligation.

20If the reason for loss of disclosure is explained through events unforeseen, I agree with the Crown argument that such loss does not automatically equate to a breach of Crown disclosure obligation.

21In the present matter such is not the case. I find that the explanation proffered by the Crown for the loss of the video amounts to a non-explanation. Police Constable Johns’ affidavit denies inadvertence on his part as the reason for the missing video. There is no evidence from any other source of an unforeseen event destroying the video or rendering it unavailable due to accident.

22However, there is evidence that Police Constable Johns intended to have the police retain the 2007 video as part of the investigation. For reasons unexplained, at some point that retention failed. Additionally, all other relevant video statements provided by A.A. to the police, regarding abuse by the Applicant stemming back to 2005 and after 2007, have been safely transferred, retained, and provided to the Applicant upon request.

23For the aforementioned reasons, I find that the Crown has not met its onus of establishing that its duty to disclose the 2007 video to the Applicant has not been breached by the loss or destruction of the video owing to unacceptable negligence.

IS A STAY OF PROCEEDINGS THE APPROPRIATE REMEDY?

24Both the Crown and defence agree that the central trial issue in count 2 is the credibility of the complainant. The same credibility issue arises in the other counts in the indictment. A.A.’s credibility issues are borne out in inconsistencies in her evidence and other disclosure she provided during investigations of her allegations, in written recantations she provided seeking Crown withdrawal of criminal charges involving the Applicant, and her admitted perjury at the Applicant’s trial for domestic assault.

25In the police video interview synopsis of the September 14 video (Tab 6 of the Respondent’s Record) the interviewing officer, Police Constable Johns, in part sets out the following information provided by A.A.:

That on 14 September 2007 her boyfriend of several years, C.M.W., assaulted her by striking her two or three times in the face and assaulted her with a weapon by throwing a knife at her…..

A.A. stated that C.M.W. had thrown a plate at her, thrown a knife at her and punched her in the face two or three times. A.A. also stated that C.M.W. had grabbed her on her arms and pulled her hair….

A.A. stated that C.M.W. had never hit her before…

26When dealing with allegations of sexual assault Police Constable Johns reported that:

When asked if C.M.W. had forced her to perform oral sex on him she stated that she didn’t want to talk about it…

27When again asked regarding having been forced to perform oral sex, A.A. replied that there were certain things that she would tell the interviewer and things that she would never say and that the sexual assault was one of the things she was not prepared to say. A.A. did not provide any details regarding who had previously assaulted her or where or when it had occurred.

28In a separate occurrence report prepared by Police Constable Johns (Tab 7 of the Respondent’s Record), in part, he provides a further synopsis of A.A.’s September 14, 2007, video statement.

29A.A. stated that C.M.W. lost it and had a look in his eyes that she had never seen before. Over the next two hours C.M.W. assaulted A.A. and threw things at her including a plate and a knife. A.A. stated that those hours were fuzzy and she could not remember anything. When asked directly about being sexually assaulted, A.A. stated that she did not want to talk about sexual assault. When asked if she wanted to speak with a female officer A.A. stated she would not talk to any officer about sexual assault. Throughout the statement A.A. was crying and was visibly shaken. A.A. was curled up in a chair at times and talked in a shaken up state. A.A. stated that C.M.W. was taking oxycontins at that time and she had never seen him like this before.

30As earlier reviewed, after C.M.W. was charged with the domestic assault in 2007, A.A. later provided a recantation letter to C.M.W.’s former defence counsel, claiming it was not C.M.W. but her former boyfriend who had assaulted her and that she had fabricated the evidence against C.M.W. because she was angry that C.M.W. had left that day to visit his ex-girlfriend.

31It is acknowledged that in 2005 A.A. alleged an earlier domestic assault involving C.M.W. and charges were laid. Similarly, she provided a recantation letter to the court withdrawing those allegations. In this trial, she testified that on both occasions she provided the recantation letters because C.M.W. had intimidated and threatened her, and her family, with violence if she did not prepare the letters.

32In this trial, she also admitted that, after having C.M.W. charged with assault causing bodily harm in June 2010, in October of that year she perjured herself at trial testifying that she was very drunk and that the injuries she received were caused when she fell down the stairs of her home and not by C.M.W. punching her.

33She testified that she was not really sure what had happened but told the police that C.M.W. had assaulted her in order that Children’s Aid Society would not get involved and take her children away.

34In the same vein, in January of 2011 A.A. reported to the police that C.M.W. had breached a court order not to associate with her, alleging that she heard his voice and she saw him sliding open a window to her apartment. C.M.W. was arrested and charged with breach of probation and criminal harassment.

35A.A. admitted that after unsuccessfully meeting with the Crown to have the charges withdrawn, later in April 2011, she falsely affirmed an affidavit before a Commissioner stating that she had been mistaken because she was on medication suffering an intense migraine, not wearing her glasses and believed it was C.M.W. at her window because she had heard his voice earlier. (Exhibit 13)

36Based on that affidavit the Crown withdrew the charges against C.M.W..

37Seven months later on November 3, 2011, A.A. provided a statement alleging that C.M.W. had in fact assaulted her over a three hour period on September 14, 2007, including two serious sexual assaults involving anal intercourse and fellatio.

38On June 14, and 18, 2012, A.A. testified about the September 14, 2007 incident at a preliminary hearing. She testified that the incident lasted three hours during which she estimated she was punched and kicked approximately 100 times to the face and body. She testified that C.M.W. threw two or three knives at her and attempted to slit her throat with a piece of a plate he had smashed during the assault. She also testified that she was thrown to the floor and C.M.W. had anal intercourse with her and then she was forced to perform fellatio until he fell asleep.

39In these proceedings, A.A. testified in-chief that prior to being sexually assaulted, she observed C.M.W. standing nude in the upstairs window facing the driveway where she and Danielle Hatchey, a baby sitter hired for the evening, were standing. Hatchey remarked, “What’s going on”, and A.A. responded, “I don’t know what he’s doing.” Hatchey suggested that A.A. leave with her and the children and A.A. responded, “No, I have to go back in the house and calm him down”. Hatchey drove away with the children and A.A. entered the home and asked C.M.W., “what’s wrong, why are you freaking out?” C.M.W. made no response but suddenly began to punch her and threw a knife at her head.

40In cross-examination A.A. testified that she could not recall whether in her September 14, 2007, video statement (the missing video) she advised that the event began with C.M.W. standing stark naked in the window of their apartment.

41She conceded that she did not provide such evidence at the preliminary hearing.

42As set out in R. v. Bero (2000), 151 C.C.C. (3d) 545 (C.A.), at para. 18 in a stay application:

… a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial.

43Having the benefit of hearing all the evidence, the issue of A.A.’s credibility looms large in the context of the unavailability of her September 14, 2007 video statement. Without the availability of the video, to what extent is the Applicant’s ability to fully cross-examine, put inconsistencies to A.A., and challenge her narrative prejudiced so that he is unable to make full answer and defence or have a fair trial?

44In R. v. Carosella, [1997] 1 S.C.R. 80 this issue was reviewed. Carosella, a teacher, was charged with gross indecency involving a student. Almost 30 years after the incident, the complainant went to a sexual assault crisis centre, reported the event and was interviewed by a social worker for about an hour and forty-five minutes. During the interview the social worker took notes. Subsequently those notes in addition to notes from 300 to 400 other files were shredded in accordance with the policy followed by the centre at that time to shred files with potential police involvement.

45At trial Carosella’s application to stay proceedings was granted because of the unavailability of the notes. The Court of Appeal set aside the order and directed the matter proceed to trial. In reversing that order the Supreme Court of Canada in part held at paras. 51-54 that:

…I am of the view that the trial judge did not misdirect himself nor is his decision clearly wrong. Indeed, I am of the view that he reached the right result.

The trial judge…noted that credibility was a major issue in the case, and that as a result, the destruction of the documents was very significant. The trial judge stated (at pp. 308-9) that:

…I find that the accused has been seriously prejudiced, being deprived of his basic right of the opportunity to cross-examine the complainant on previous statements…The accused has had his ability to make full answer and defence substantially impaired by the destruction of the complainant’s file…

… As noted above, the notes taken by the Centre worker represented the first detailed account of the alleged incidents. The notes constituted the only written record of the alleged incident which were not created as a result of an investigation. The only other statements by the complainant were to the police and at the preliminary inquiry. The social worker Romanello had no recollection whatever of what was said to her. As for the complainant, even if she could recall she would not likely admit that what was said was inconsistent with her present testimony. As a result, any possibility of contradiction of the complainant by reference to her previous account was destroyed.

46In this matter, A.A. testified that she has no recollection of the details she provided in her September 14, 2007 video statement. Therefore I find the possibility of contradicting A.A. at trial as set out in Carosella is undermined.

47Additionally, the video statement, according to PC John’s Interview Synopsis (Tab 6 of the Respondent’s Record), commenced at 22:51 p.m. and stopped at 23:32 p.m., a period of 40 minutes. That 40 minute interview is set out in a one page and a quarter synopsis comprising of 11 short paragraphs. There are no direct quotations attributed to A.A. as to the events she alleged. Other than setting out two questions put to her, namely, whether C.M.W. had forced her to perform oral sex on him, the synopsis is absent any other questions that would have been asked in the 40 minute interview and any answers that A.A. may have provided.

48I find, given that credibility is the central issue in Count 2 and that the allegations of sexual assault are inexorably tied to A.A.’s allegations of physical assault before and during the sexual attacks, the loss of the September 14, 2007 video detailing the physical assault allegations, goes to the heart of the Applicant’s ability to make full answer and defence.

49As the court stated in Carosella at paras 55-56:

An additional factor is the absence of any alternative remedy that would cure the prejudice to the ability of the accused to make full answer and defence. No alternative remedy was suggested by the Court of Appeal. This is one of the factors mentioned by L’Heureux-Dube J. in the portion of her reasons to which I have referred. The other factor is irreparable prejudice to the integrity of the judicial system if the prosecution continued.

These two factors are alternatives. The presence of either one justifies the exercise of discretion in favour of a stay. [Emphasis added].

50In granting this application to stay Count 2, I also conclude as in Carosella that no alternative remedy would cure the prejudice to C.M.W.’s ability to make full answer and defence. The September 14, 2007, video statement is irretrievably missing. A.A. has little or no recollection of the details she provided in that video. Police Constable John’s Video Interview Synopsis (Tab 6), Respondent’s Record) and, his Occurrence Report, (Tab 7), are no substitutes for the missing video.

51At paras. 83 the Supreme Court of Canada O’Connor held:

Where life, liberty or security of the person is engaged in a judicial proceeding, and it is proved on a balance of probabilities that the Crown’s failure to make proper disclosure to the defence has impaired the accused’s ability to make full answer and defence, a violation of s. 7 will have been made out. In such circumstances, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the prejudice to the accused’s ability to make full answer and defence or to the integrity of the justice system is irremediable. In those “clearest of cases”, a stay of proceedings will be appropriate.

52For the aforementioned reasons I find the present matter to be one of those “clearest of cases”. A stay of proceedings is therefore ordered on Count 2 in the indictment.

The Honourable Mr. Justice A. Sosna