ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-SA5075
DATE: 2015/06/30
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
FRANCIS CHARRON
Applicant
Lia Bramwell, for the Respondent
Anne Marie Morphew, for the Applicant
HEARD: March 9 to 13, 16, 17 and June 22 and 23, 2015
reasons for decision respecting an application to stay
proceedings due to lost evidence
C. mckinnon j.
[1] The Applicant, Francis Charron, is charged with sexual interference, invitation to sexual touching, sexual assault, uttering a threat to cause death and forcible confinement, contrary to the Criminal Code of Canada. The Applicant has filed notice that he is seeking a stay of proceedings as a result of an alleged violation of his rights protected by section 7 of the Charter of Rights and Freedoms (Charter).
Background Facts
[2] On June 27, 1997 the complainant, A. L., was sexually assaulted by a stranger while she was bicycling in the City of Ottawa. A. L. was 11 years of age. Ottawa Police became involved in the investigation of the case immediately following the assault.
[3] Detective Roch Lachance was the lead investigator in the case. He is now retired. His handwritten notes cannot be located. However, his 11 page typewritten Investigative Action report was located and disclosed to the defence. That report covers the period from June 28, 1997 at 7:30 a.m. to June 29, 1998. Detective Lachance testified that the Investigative Action report is a reliable and detailed account of the investigation that was conducted in June and July, 1997.
[4] Significantly, the handwritten notes of Detective Lachance between the dates of July 11, 1997 and October 6, 1998 were located. I use the word “significantly” because when one compares the Investigative Action report to the handwritten notes of Detective Lachance it is obvious that the typewritten Investigative Action report constitutes a mirror image of Detective Lachance’s handwritten notes.
[5] An individual named Ronald Carrigan was identified as a possible suspect by Sergeant Cybulski on June 30, 1997. Detective Lachance generated a memorandum seeking surveillance on Ronald Carrigan. Mr. Carrigan was placed under surveillance which produced negative results.
[6] Ottawa Police conducted a photo lineup which included the photograph of Ronald Carrigan. A.L. could not identify anyone in the photos that she was shown.
[7] Ultimately Ottawa Police were able to collect a semen sample from Ronald Carrigan. When the complainant was sexually assaulted semen from her attacker was deposited onto the t-shirt that she was wearing.
[8] Anne Elizabeth Charland of the RCMP forensic biology laboratory had developed a DNA profile from the DNA extracted from the semen on the t-shirt worn by A. L. at the time of the attack. Ms. Charland compared Mr. Carrigan’s DNA profile with the profile that she had developed from the t-shirt worn by A. L. Ronald Carrigan was eliminated as a suspect when it was confirmed that he was not the donor of the DNA found in the semen located on A.L’s t-shirt.
[9] The investigation was revived in the year 2013. The Applicant was arrested and charged on October 3, 2013 after the Ottawa Police were advised that there had been a “hit” on the National DNA Databank. A sample of the Applicant’s DNA was seized pursuant to a warrant. It was sent for analysis at the RCMP forensic laboratory and compared with the DNA profile generated from the semen on the t-shirt worn by A.L. Michelle Scott Mascioli of the RCMP forensic laboratory compared the two DNA profiles and found them to be a perfect match.
[10] Ms. Morphew on behalf of the Applicant submits that certain crucial notes are missing that might assist the accused in making full answer and defence. Those notes include notes of Detective Roch Lachance, the notes or reports of Identification Officer Les Frost, the reports of Identification Officer Ron Bird, the notes or reports of Identification Officer Alan Burns, the notes and reports of Identification Officer Jim Cybulski and the notes or reports of Identification Officer Ian Davidson together with the photographs that were used in the line-up shown to the complainant on June 30, 1997.
[11] With respect to Identification Officer Les Frost, while his notes cannot be located, a two-page Investigation Action report was located and disclosed, as well as a series of photos taken by him. In addition, Detective Frost testified concerning his involvement in the case.
[12] Officer Ron Bird’s notes were disclosed. In addition he testified and had an independent recollection of his involvement in the case.
[13] Officer Alan Burns prepared a composite sketch of the suspect as described by the complainant. His notes, if any were made, cannot be located. The composite sketch has been disclosed and his involvement in the case is detailed in the Investigative Action report of Detective Lachance.
[14] Officer Jim Cybulski did not make any notes. His involvement related to the investigation of Ronald Carrigan, who was ultimately eliminated as a suspect. His involvement in the case was limited to conducting surveillance on Mr. Carrigan, which is detailed in the Surveillance Reports which have been disclosed to the defence.
[15] With respect to the notes or reports of Officer Ian Davidson, it is documented in Detective Lachance’s report that Officer Davidson had one meeting with Detective Lachance in which they discussed a number of sexual assault cases in the City of Ottawa. In particular Officer Davidson identified an individual who was involved in sexual assaults in the Billings Bridge area of Ottawa, an area quite distant from Hampton Park. Officer Davidson was never involved in the investigation involving A.L.
[16] With respect to the photo lineup shown to the complainant on June 30, 1997, it is clear from the report of Detective Lachance that the photo lineup was carried out for one purpose, namely to show the photograph of Ronald Carrigan. A.L. could not identify anyone in the lineup.
[17] Of importance is the fact that the accused has testified in his own defence and has explained how it was possible that his semen made its way to A. L’s t-shirt.
[18] Some of the disclosure of notes and reports was made during the preliminary hearing and during the trial. At no time did the Applicant seek an adjournment in order to deal with the late production of notes and reports.
Issues
[19] The issues in this Application are:
(1) whether the Applicant’s right to full disclosure has been breached; and
(2) if so, whether a stay is the appropriate remedy.
The Law
[20] The obligation of the Crown to disclose to the defence all information in their possession that is relevant and not subject to a rule of privilege is well established in the common law and constitutionally entrenched in the right to make full answer and defence pursuant to section 7 of the Charter: R. v. Stinchombe, [1991] 2 SCR 326; R. v. McNeil, [2009] SCJ No. 66.
[21] Stinchombe confirmed that the right to make full answer and defence constitutes a fundamental value on which society depends to ensure that innocent individuals are not convicted. Information cannot be withheld if there is a reasonable possibility that the withholding of the information will impair the right of the accused to make full answer and defence.
[22] The obligation to disclose extends beyond the Crown and applies to police. Police investigators have an obligation to disclose to the Crown all relevant material pertaining to their investigation of an accused: McNeil.
[23] When an accused claims that the failure to preserve relevant evidence in the possession of the Crown has resulted in a breach of the accused’s rights under s. 7, the courts have the benefit of the decision in R. v. La, (1997) 1997 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.), the ratio of which was conveniently set out in R. v. Bero, 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (O.C.A.) at para. 30:
(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 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 the evidence was deliberate 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 an 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.
[24] Briefly stated, the critical questions to ask are these:
(i) Is the evidence in question relevant?
(ii) Was the evidence lost due to unacceptable negligence or from an abuse of process?
(iii) Is the accused prejudiced in his ability to make full answer and defence as a result of the loss?
[25] All of the cases cited by the Applicant in support of his Application for Stay involve the loss of critical information. For example, in Bero, the only issue was the identity of the driver of a vehicle. The police failed to conduct a forensic examination of the interior of the vehicle. The police did not maintain possession of the vehicle, and the defence were not afforded any opportunity to conduct forensic examinations of the interior of the vehicle. Even then, the Court of Appeal did not regard the case as a proper one for a stay as there was no suggestion that the Crown acted with malevolent motive or that there was a systemic disregard by the Crown of its obligation to preserve relevant evidence.
[26] The caselaw establishes that a stay should be ordered only in the clearest of cases: R. v. Power (1994), 1994 126 (SCC), 89 C.C.C. (3d) 1 (S.C.C.) at para. 11; and Canada v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391 at paras. 91 and 96.
[27] The onus is on the Applicant to prove to the court on a balance of probabilities that the irreparable prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and no other remedy is reasonably capable of removing that prejudice: R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.) at para. 75; R. v. Carosella (1997), 1997 402 (SCC), 112 C.C.C. (3d) 289 (S.C.C.) at paras. 53-56.
[28] The first requirement mandates a finding of actual prejudice as opposed to mere potential or speculative prejudice. The relevant inquiry is whether the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of evidence makes putting forward that position more difficult: La at paras. 40-41; Carosella at paras. 37, 53-55.
[29] Where alternative sources for the information which is allegedly lost exists in some format, a stay of proceedings is unlikely: Grimes (1998), 1998 ABCA 9, 122 C.C.C. (3d) 331 (Alta.C.A.) at para. 16.
[30] In assessing the prejudice, it is important to note that while the accused is entitled to a fair trial, he is not entitled to the fairest of all possible trials, but rather, to one that is fundamentally fair: O’Connor at para. 193.
Application of Law to the Facts of this Case
[31] In my considered opinion the evidence alleged to have been lost in this case has not in fact been lost for use by the defence, and in any event, is irrelevant.
[32] As noted earlier, the available notes authored by Detective Lachance demonstrate that his report mirrored those notes. Detective Lachance testified that everything relevant from his notes was included in his report. One must assume that had the notes that are missing been produced they would demonstrate that the report is a mirror of those notes. No other rational conclusion can be drawn.
[33] The two-page Investigative Action report of Identification Officer Les Frost sufficiently documents his involvement in the case together with the photographs which he took, identified, and testified about during the trial. No prejudice has been occasioned as a result of the lost notes.
[34] The same can be said for Identification Officer Ron Bird. His notes were found and disclosed to the defence and he was called as a witness and explained his involvement in the case. No prejudice has been occasioned to the defence by virtue of the lost Investigative Action report.
[35] The notes or reports of Identification Officer Alan Burns, who prepared a composite sketch which has been disclosed to the defence are, in my view, irrelevant, and in any event Officer Burns involvement in this case is detailed in the Investigative Action report of Detective Lachance.
[36] The same may be said of any notes or reports of Identification Officer Cybulski. Officer Cybulski did not make notes and his involvement was limited to the investigation of Ronald Carrigan detailed in the surveillance report which is in the possession of the defence and later eliminated by DNA analysis.
[37] The notes or reports of Identification Officer Davidson in which he had one meeting with Detective Lachance where they discussed a number of sexual assault cases in the Billings Bridge area of Ottawa are, in my view, irrelevant to this case, and in any event detailed in the Investigative Action report of Detective Lachance.
[38] The fact that the photos in the lineup shown to the complainant on June 30, 1997 are unavailable must be deemed irrelevant. The purpose of the lineup was to see if the complainant could identify Ronald Carrigan, whose photo was in the lineup. A. L. did not identify anyone in the line-up. Ronald Carrigan was later eliminated as a suspect through DNA analysis.
[39] In sum, the allegedly lost evidence is not lost by virtue of the records that do exist and in any event the allegedly lost evidence is irrelevant to the case against the accused.
[40] The accused chose to testify in his own defence and provide an explanation as to how his DNA might have made its way to the t-shirt worn by complainant.
[41] The accused was not in any way prejudiced in his ability to make full answer and defence as a result of the allegedly lost evidence. His Charter rights have not been infringed.
Disposition
[42] In the result, the Application is dismissed.
C. McKinnon J.
Released: June 30, 2015
COURT FILE NO.: 13-SA5075
DATE: 2015/06/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
FRANCIS CHARRON
Applicant
______________________________________________
reasons for decision respecting an application to stay proceedings due to lost evidence
C. McKinnon J.
Released: June 30, 2015