COURT FILE NO.: CR-15400002-510000

DATE: 20160620

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: )

HER MAJESTY THE QUEEN

– and –

R.B.

Accused )

Linsay Weis, for the Crown

Shane Martinez, for the Accused

HEARD: January 18 – 22, 2016

PUBLICATION RESTRICTIONS NOTICE

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify either of the two complainants shall not be published in any document, broadcast or transmission.

B.A. ALLEN J.

REASONS FOR DECISION

BACKGROUND:

1The accused, R.B., about age 80 at the time, is charged under the Criminal Code with two counts of sexual assault (s.271) and two counts of sexual interference (s.151) in relation to I.R., a young person. The Crown alleges that these offences occurred sometime between January 1, 2011 and September 30, 2013. I.R. was between ages 5 and 7 at the time. It is alleged that I.R.’s younger brother, H.R., was present and made some observations of one of the incidents.

2On at least two occasions I.R. told her mother about what she alleges the accused did to her. Her mother decided to take I.R. to the police.

3On April 7, 2014, I.R., accompanied by her mother and brother, made a formal complaint to the police. I.R. and her brother and mother were each interviewed separately on that day at

the Gatehouse, a child-friendly house used by the police to interview children. I.R. was age 7 and her brother age 4 at the time.

LOST EVIDENCE APPLICATION

4As it turned out, the video of the interviews was recorded but not the audio, making the videotape of no use for trial. The police did not learn of this until some months after the interview.

5The defence brought an application to stay the accused’s charges under s. 24(1) of the Charter on the basis his Charter rights under s. 7 had been violated by the failure of the police to record the audio of the interviews, especially that of I.R. The defence argues that the accused is prejudiced in his right under s. 7 to make full answer and defence so that his right to a fair trial is impaired. The defence submits the violation arises from the unacceptable negligence of the police in losing the audio recording − that it would be contrary to the interests of justice if the prosecution were allowed to continue. It is the defence’s position that the police conduct constitutes an abuse of process and a stay of proceedings is the only appropriate remedy.

The Proceedings

6In accordance with the direction of the Supreme Court of Canada and the Ontario Court of Appeal, in order to assess the appropriateness of the remedy the defence seeks, I conducted the trial: [R. v. L.A., 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at para. 27, (S.C.C.)]. This is the recommended approach. The Ontario Court of Appeal in R. v. B. (D.J.) held:

The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevant evidence, the nature of which would make it clear whether the prejudice was real or minimal.

[R. v. B. (D.J.), (1993), 16 C.R.R. (2d) 381, at p. 382, (Ont. C.A.)]

7I therefore considered the application on lost evidence after reviewing the evidence adduced at trial. The accused did not call a defence. Hence, I determined the outcome on the application once the Crown closed its case. As will be seen, I denied the application to stay the proceedings which required me to arrive at a verdict on the evidence on the trial proper.

8Under s. 486.2 of the Criminal Code, the Crown applied, unopposed by the defence, for the children to testify outside the courtroom and to testify with the support of a victim support worker. I granted both applications.

EVIDENCE ON THE APPLICATION ON LOST EVIDENCE

The Police Interviews

9P.C. Kent and D.C. Jeeva took turns interviewing and taking notes. D.C. Jeeva interviewed both I.R. and H.R. and P.C. Kent took notes of both of those interviews. P.C. Kent interviewed the mother and D.C. Jeeva took notes.

10The three interviews were videotaped. Neither D.C. Jeeva nor P.C. Kent had ever conducted interviews at the Gatehouse or used the video recording equipment at that facility. Before the interviews commenced, P.C. Kent went into the room where the audio visual equipment was already set up. There was a CCTV camera, a DVD, a “remote” device and a TV monitor.

11P. C. Kent was in the equipment room for about ten seconds. She adjusted the camera and its “zoom in” feature to ensure that the camera was directed properly at the interview room to capture the participants in the interview. The equipment in P.C. Kent’s estimation was ready to record. All she had to do was press the “record” button on the DVD or the remote. P.C. Kent pressed the record button and left the equipment room for the interview room.

12When each interview was complete, P.C. Kent would enter the equipment room and press “stop” on the remote and allow the recording to download onto the DVD.

13Neither P.C. Kent nor D.C. Jeeva did a test on the audio visual equipment to ensure both the audio and video were operating. They did not ask for the assistance of any personnel at the facility. The interviews were recorded but only the video was captured. The DVDs for the interviews were disclosed to the defence in the normal course without the police or Crown being aware there was no audio on any of the recordings. The Crown did not become aware of this until several months later when defence counsel alerted the Crown that the audio had not been operative during the recording.

14As will be seen, there are drawbacks with the police notes that devalue their possible use to supplement the missing videotape evidence. These deficiencies further made their use by

D.C. Jeeva to refresh the children’s memories more problematic than worthwhile.

The Police Notes and the Synopsis

P.C. Kent’s Notes

15P.C. Kent has been a police officer for ten years and a member of the family services unit for two years.

16There is no clear evidence in P.C. Kent’s notes that D.C. Jeeva conducted a “truth or lie test” or instructed the children that they must tell the truth. On cross-examination, P.C. Kent agreed with defence counsel’s suggestions about the differences between the dispositions of young children and adults in relating the details of stories from their memories – that the types of answers given by children are affected by the types of questions asked. P.C. Kent admitted she had no noteworthy training in interviewing children, child memory, or in child development and sexuality. She admitted that because she thought the interviews would be recorded, she did not write as fulsome notes as she would have had she known the audio feature was not working.

17P.C. Kent testified she did not take verbatim notes of the children’s interviews. I.R.’s interview was 52 minutes long and H.R.’s was 30 minutes. There are five pages of notes for

H.R. and seven pages of notes for I.R. P.C. Kent testified she tried to take more notes in areas of the interview related to the offences or elements of the offences. Both sets of notes are in point form. There were no questions and answers.

18P.C. Kent admitted on cross-examination that the words she wrote were her interpretation and recall of what was said by I.R. and her brother. She admitted that it could not be ascertained whether her notes reflected what the interviewee intended to say unless the note was read back to the interviewee for confirmation. P.C. Kent did not go over her notes with either child to confirm the notes reflected what the child intended to say.

19Defence counsel put to P.C. Kent the police policy on conducting electronic interviews which requires, among other things, that the officer ensure the interview room and equipment are in proper working condition and cautions that the more serious the offence the more critical it is to record an interview. P.C. Kent testified she was familiar with the policy.

20P.C. Kent conceded it would be improper to give a child the police notes to refresh their memories in preparation for testifying in a legal proceeding, especially when the notes were not confirmed by the children as to accuracy.

D.C. Jeeva’s Notes and Synopsis

21D.C. Jeeva has been a police officer for eight years and had been assigned to the family services unit for three years. He was the officer in charge of the investigation. He testified he did not check the audio recording before the interview started and did not recall if the system was tested before it was used for the interviews that day. D.C. Jeeva stated that he did not recall if he received training on audio video recording. He testified he learned months after the interview that the audio was not captured.

22Defence counsel also referred the officer to the portions of the police policy on conducting electronic interviews that were put to P.C. Kent. D.C. Jeeva also testified he was aware of the police policy.

23D.C. Jeeva said he took a one-week course at the police college a few years earlier on taking statements from children but did not recall if it included training about the memories of children. He stated there was no training on child sexuality.

24D.C. Jeeva testified about his method of interviewing children. He did not seem to recall exactly what form of questions he asked, whether open-ended or leading. He testified he usually asked open-ended questions. He would inquire whether the child knows the difference between the truth and a lie. But he said he did not recall if he did a formal “truth or lie test” with I.R. or

H.R. D.C. Jeeva did not ask I.R. whether she was telling the truth or tell her of the importance of telling the truth. D.C. Jeeva testified he could make out a crime in what I.R. told him. When asked whether he had to prompt her in the interview, he responded, “I don’t think so.”

25Defence counsel went through some areas of D.C. Jeeva’s four pages of notes on the mother’s interview. D.C. Jeeva testified that he took notes in point form so they were not verbatim. He said he tried to capture the mother’s words as best he could.

26For example, at one point D.C. Jeeva noted something I.R. said about the accused whom she and her brother referred to as “Lolo”. D.C. Jeeva stated that I.R. had told her mother that Lolo was in the washroom showing his private parts. D.C. Jeeva conceded he included no

additional details on that point. Later, D.C. Jeeva made a note “rubbing private parts medium hard.” D.C. Jeeva’s notes do not comment on what “medium hard” means.

27There is a further note, “giving her sex education”, which D.C. Jeeva also admits has no contextual information. D.C. Jeeva conceded that in his four-page, point-form notes he wrote down none of the questions he asked. The officer did not recall if P.C. Kent’s notes were reviewed with the children nor if he reviewed his notes with the mother.

28Defence counsel cross-examined D.C. Jeeva about his preparation of the synopsis back at the station after the interviews.

29D.C. Jeeva testified that within a week after the interview he reviewed P.C. Kent’s notes and his own notes for his case preparation. D.C. Jeeva testified about the important role a synopsis plays in the investigation, that the synopsis sets out the information that forms the basis of the allegations. He conceded that the accuracy of a synopsis is also important to court proceedings.

30Defence counsel put to D.C. Jeeva that a number of statements in his synopsis are inaccurate to which D.C. Jeeva responded, “I don’t know.” Defence counsel further suggested he oriented the information in the synopsis to support the police’s theory of the case. To this

D.C. Jeeva responded, “I don’t agree.”

31Defence counsel referred to a point in the synopsis that indicated that the accused and his wife were responsible for babysitting. The defence suggested the arrangement was that after school the children attended daycare and only exceptionally did the accused and his wife babysit. This is confirmed below in the mother’s evidence.

32The defence also pointed to a note in the synopsis where D.C. Jeeva states the accused would routinely pick up I.R. after school and take her home. Defence counsel suggested D.C. Jeeva exaggerated, that the mother did not tell him the accused routinely picked up I.R. after school. To this D.C. Jeeva responded, “I don’t know.” He admitted he made the assumption that the accused picked the children up routinely. There is no such reference in P.C. Kent’s notes nor in the mother’s evidence.

33Defence counsel also referred to a statement in the synopsis where the officer stated that the accused and his wife were the godparents of the children. In fact they are the godparents of the children’s parents. D.C. Jeeva responded he thought they were godparents to the children.

34Defence counsel referred to the synopsis where it states the accused and his wife were babysitting the children. Defence counsel pointed out that nowhere in D.C. Jeeva’s notes nor

P.C. Kent’s notes is there an indication the accused and his wife were babysitting the children.

D.C. Jeeva responded, “I don’t recall who told me that.” D.C. Jeeva conceded the children did not say that and he agreed there is no source for that statement in the synopsis.

35Defence counsel also questioned the officer on his statement in the synopsis that “the accused called the victim upstairs and invited her into his bedroom”. Counsel put it to the officer that the reference is false. D.C. Jeeva replied, “I think I.R. mentioned that to me. She ended up in the bedroom.”

36D.C. Jeeva also reviewed P.C. Kent’s notes and he admitted that there is no source for that information in the notes, that he could not say how I.R. got to the bedroom and conceded that is an important detail. Defence counsel pointed out to D.C. Jeeva that what P.C. Kent’s notes actually indicate is that the children went upstairs to look for their dad’s friend. The officer agreed he had no independent recollection of the information in the synopsis which states the accused invited I.R. into his bedroom and conceded that information is false.

37D.C. Jeeva agreed that if he showed point form notes containing no contextual information he could mislead a child as to what occurred. The officer responded that the reference to the notes would refresh the child’s memory. Defence counsel went on to ask the officer about the critical importance of a video recording or written statement of a child’s interview − that a video recording can be played so the child can see and hear what happened in the interview and a written statement could be read back immediately so the child could confirm whether it accurately stated what the child said. The officer agreed.

38The police interviews were conducted on April 7, 2014 and Officer Jeeva first reviewed the interview notes with the children at the preliminary inquiry nearly a year later in February 2015. Defence counsel also asked D.C. Jeeva if it is appropriate for the purpose of refreshing a child’s memory for an officer, months after notes were taken, to show a child notes containing such obvious deficiencies. The officer agreed that was not an acceptable practice.

THE EVIDENCE OF CROWN WITNESSES AT THE TRIAL PROPER

The Mother

39The mother testified the accused and his wife sponsored her husband’s and her marriage. Lolo and Lola are their godparents. The mother and her husband attend the same church as the accused and his wife where the accused is an elder and advisor.

40The mother testified the accused and his wife, who the children called “Lolo” and “Lola”, were like grandparents to the children, although they were not blood relatives. They were in a position of trust over the children. The mother, her husband, I.R. and H.R. and their young baby resided in the basement of the accused’s home at the time of the alleged abuse. She testified the children had a good relationship with the accused and his wife. They would see each other almost every day and would have fun when they went upstairs to visit.

41The mother confirmed the children went to daycare after school and either she or her husband would pick the children up. She stated that in exceptional circumstances the accused would pick them up.

42The mother testified about how the allegations against the accused were disclosed to her.

43She testified that while they were still living in the basement, on one occasion, I.R. told

the mother something the mother thought was suspicious about the accused but she did not think

much of it. I.R. did not give details. The mother did not feel she had to ask the accused anything about it. She said she trusted him.

44The family moved from the basement in September 2013. After they moved, in March 2014, the mother was in the kitchen when she overheard the children talking at the dining room table about something that caught her attention. The mother testified when she approached them

I.R. did not want to talk about it anymore.

45When the mother pursued a conversation she said I.R. acted afraid and then she got angry when the mother would not stop talking about it. I.R. eventually gave more details of what the accused is alleged to have done to her. The mother testified she “spoke heart to heart” with I.R. throughout the day. The mother spoke to I.R. more than once to confirm the information because I.R. would cry when she spoke of it.

46In answer to the questions about I.R. and H.R. getting into trouble for lying, the mother responded that did not happen often. She said if they did lie it was usually about toys. She testified they do not lie about the computer because they cannot use it without her permission. The mother strongly rejected defence counsel’s repeated suggestion that I.R. and H.R. got into trouble for looking at some pornography on the computer.

47The mother said she next discussed I.R.’s allegations with her husband. She did research about what steps to take. The mother testified she had some matters to consider. Her family was close to the accused and his wife and they went to the same church. She consulted with her church and they advised her that she had the responsibility of reporting the allegations against the accused. The mother then reported the allegations to the Children’s Aid Society and then to the police. The accused and his wife were in the Philippines so they did not know the mother was going to the police.

The Children

Law on Prior Video Recorded Statements of Children

48There is special provision in the Criminal Code for the admission into evidence at trial of prior videotaped statements of persons who were children or young persons at the time of the offence. I.R. was age 6 and H.R. was age 4. As will be seen, H.R.’s evidence on the whole suffered from significant credibility and reliability problems. This I find is a function of his young age. The accused exercised his right not to call a defence. The burden therefore falls to I.R.’s evidence to assist the court in its search for the truth about the allegations of sexual abuse.

49Section 751.1 provides that in any proceeding relating to certain sexual offences in which the complainant is under the age of 18 years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant, while testifying, adopts the contents of the videotape. Understandably, a videotape made close in time to the alleged offence increases the potential for its reliability.

50The purpose of s. 751.1 of the Criminal Code is to preserve an early account of a child's complaint and, by providing a procedure for the introduction of the child's story into evidence at trial, to facilitate the pursuit of the truth: [R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at para. 1, (S.C.C.)]. The Supreme Court of Canada recounted some of the benefits of having available such a video recording:

Scientific study has indicated that, as compared to the courtroom setting, the quality and reliability of children's testimony is significantly enhanced in a smaller, more intimate, videotape environment (Spencer and Flin, supra)*. The numerous other advantages of videotaped evidence include the fact that videotaped testimony enables the court to hear a more accurate account of what the child was saying about the incident at the time it first came to light. Secondly, the tape of an early interview will reveal how the child was questioned. Thirdly, a suspect may have the opportunity to view the videotape during the course of an investigation. Fourthly, the videotape of an early interview, if used in evidence, can supplement the evidence of a child who is inarticulate or forgetful at trial.

[R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at para. 40, (S.C.C). *J.R. Spencer and R.H.

Flin (The Evidence of Children: The Law and the Psychology (1990)]

51Were I.R.’s police statement properly recorded she would have been allowed to view and listen to the video in court before testifying and subsequently be allowed to adopt it. If adopted it would have supplemented her oral evidence at trial and spared her recalling and repeating the embarrassing details of her allegations. Most unfortunately, the benefit of having the videotape of I.R.’s police statement as evidence is lost in this trial.

52It is not entirely clear from the evidence when the alleged offences took place. The offences were alleged to have occurred when the family lived in the basement of the accused’s home. That would be sometime within the two years and three months they lived there from 2011 to September 2013. The interview was recorded on April 7, 2014. Having no audio however makes the recording of no value for the purposes that underlie s. 751. We have no early account of I.R’s police statement.

53To put perspective on I.R.’s ages and the time lapses between her disclosures of information:

• I.R. was somewhere between ages 5 and 7 at the time of the alleged offences;

• I.R. was interviewed by D.C. Jeeva when she was age 7;

• I.R. testified at the preliminary inquiry at age 9, ten months after the disclosure to the police; and

• I.R. testified at trial at age 10, almost two years after her initial disclosure to the police.

54As noted above, there are deficiencies in both officers’ notes of the interviews which

adversely impact their usefulness for trial. Neither the officers’ oral evidence nor their notes are of much assistance in discerning the form and types of questions asked, the content of the questions and answers, and the demeanors of I.R. and the officers during the interviews. It appears fairly certain the officers did not conduct truth or lie or lie or make-believe tests with either child. There is no indication they instructed the children on the importance of telling the truth.

55D.C. Jeeva used the police notes before the preliminary inquiry and trial to purportedly “refresh” I.R’s and H.R.’s memories about the information they gave to the police. Given the

questionable value of the police notes, there is a danger of confusion and distortion in the children’s minds and in their evidence at trial about what they said in their prior statements and about the facts of the allegations.

I.R.’s Trial Evidence

56With those considerations in mind I review the evidence of I.R.

57Both Crown counsel and defence counsel at the start of their questioning at trial enquired whether I.R. could distinguish the difference between the truth and a lie and between pretend/make-believe and what is real and pretend and a lie. I.R. was also asked if she understood the importance of telling the truth and was asked to tell the truth. I.R. appeared as an exceptionally intelligent child especially articulate at age 10. I was satisfied by I.R.’s responses to counsel’s questions and her promise to tell the truth that I.R. was competent to testify at trial.

Examination-in-Chief

58I.R. confirmed her mother’s evidence that her dad or mother would usually pick her up at daycare after school and that at times the accused would pick her up. I.R. spoke about her and

H.R. frequently going upstairs to visit the accused and his wife. They would go into the kitchen when Lola was cooking, out into the yard when she was gardening, and into the bedroom when she was sewing in hers and Lolo’s bedroom.

59I.R. testified she did not know how many times Lolo did sexual things to her but she thought it was a few times. She testified about two incidents.

60With the first incident, I.R. testified she came up from the basement to see what Lola was doing. She did not see Lola. She saw Lolo in the bathroom which was attached to his bedroom. She said “he was doing his business” so she stepped away. She left Lolo alone in the bathroom and she stayed in the bedroom looking around. She said H.R. was in the hallway outside the bedroom door.

61I.R. testified Lolo came out of the bathroom into the bedroom where she was. They were talking together in the bedroom. She said Lolo did not say anything and then put her on the bed. She said she had been sitting at the bottom of the bed. When she laid down her legs and feet were hanging off the bed and her body was on the bed.

62I.R. said Lolo took off her shirt. She had tights on that she said Lolo pulled down with her panties. I.R. testified Lolo lifted up her “Barbie” skirt. She said she had on a tank top and black tights. She said Lolo took off his pants and lifted his shirt. He took out his penis and rubbed it on her vagina for a few minutes. She said he rubbed his penis both inside and outside her vagina.

63I.R. testified what Lolo did was not painful. Crown counsel showed I.R. the transcript of her preliminary inquiry where in answer to whether what he did hurt she said, “sort of.” I.R. acknowledged she had said that. But she explained what she meant. She said, “It was like he wasn’t doing it that hard or soft but was doing it in the middle.”

64I.R. described that it felt “weird” and, “she did not know what was happening”. She said Lolo then put his mouth on her vagina and “started sucking on it”. She said he also “touched” her “boobs” after he rubbed his penis on her vagina and sucked her vagina. She testified Lolo said nothing to her during this time and she did not know what was happening.

65I.R. testified when Lolo put her on the bed he closed the bedroom door and put a block of wood at the gap between the door and the floor. She described the wood with her hands as being about 15 ″ long. She said she was “pretty sure” he got it from the closet. She said she saw him “lock” the door.

66I.R. said while Lolo was doing the sexual things H.R. was outside the door and she heard him say, “What’s happening? Iris, let me in. What are you guys doing?” She said H.R. “needed her for something”. Crown counsel asked whether I.R. responded to H.R.’s question and I.R. responded that she said to H.R.: “I don’t know nothing (sic).”

67I.R. testified her brother bent down outside the door and looked through the gap left between the wood and the door and was looking at what was happening. I.R. said she knew he was looking because when she got up she could see her brother’s eyes.

68I.R. testified when it was finished Lolo pulled up his pants and she pulled up her tights and pulled down her tank top. She testified Lolo told her not to tell her parents or her brother what happened. I.R. testified she was sure her parents were not home when Lolo did this to her.

69I.R. said her brother saw everything and she told him to keep what happened between the two of them. She testified she was scared to tell her parents because she was afraid of what Lolo would do. She testified that after Lolo had done things like this a few times, she finally told her mom and dad. She testified H.R. convinced her to tell them. She said her parents were surprised.

70I.R. testified her parents warned her not to let people touch her when she is uncomfortable. She said she did not know what was happening but after he had done it a few times, she knew it was wrong. She testified she went on with what she was doing and let her parents handle it.

71I.R. described the second incident. She testified she had gone outside with her brother. Lola was outside doing gardening and H.R. went to watch her. I.R. stated she went over to the garage to see what Lolo was doing. There were two doors to the garage, one for people to enter from the rear and one in the front for the car to enter. I.R. went into the door for people without her brother. When she entered Lolo was working with his tools.

72I.R. testified she went in to say “hi” and Lolo asked her to come in. She testified he then put her into the car the same way that he had put her on the bed. He pulled off her clothes and he pulled up her skirt. He rubbed his penis on her vagina and started to suck her vagina. She said Lolo said nothing to her. She described the car as a blue Jeep with three seats at the back. He put her on the back seat with her back against the seat, her legs dangling like when she was on the bed. Lolo stayed outside the car. Just his head went into the car. She said when he rubbed his penis on her vagina, his penis was neither hard nor soft it was “in the middle.”

73I.R. testified that Lolo said he should stop. They could hear I.R.’s brother running toward the garage. She said she could hear his shoes. She testified Lolo pulled up his pants and she pulled up the clothes she was wearing. She went outside to see what H.R. wanted to show her. She said he wanted to show her one of Lola’s plants.

74I.R. testified her parents were never around when Lolo did this to her and Lola was in the backyard. She testified she never told her parents about that incident right away because she still did not know what was happening to her. The first time she told her parents was in the basement but she did not recall what she told them that time.

75Similar to the mother’s evidence, I.R. testified that after they moved from Lolo’s house, her mother heard her and H.R. talking about what Lolo had done. Her mother asked her what they were talking about. I.R. testified her mother got angry when she would not tell her. Then

I.R. told her everything. She testified her mother was surprised and said she had to do something about it.

76I.R. did not recall when she spoke to the police. In answer to Crown counsel’s question,

I.R. testified she was telling the truth when she spoke to the police.

Cross-Examination

77I.R. was on the witness stand at trial during two days. She underwent a very lengthy cross-examination.

78Defence counsel asked I.R. questions about when he cross-examined her at the preliminary inquiry some ten months earlier in February 2015. He reminded her that at the preliminary inquiry she testified she did not at that time recall details. Defence counsel asked her if her memory had gotten better by the time of trial. I.R. responded, “I kept forgetting about it because I didn’t want to think, so I didn’t remember.”

79Defence counsel asked I.R. about the fact that at the preliminary inquiry she had testified that before court she had the chance to look at statements – more than once. I.R. agreed that she looked at statements and read them. She agreed that she had read handwritten statements. She said she did not know who prepared the statements. She did not know what she read because she did not know some of the words. She did not recall reading any papers that were not handwritten. She testified she only recalled reading one paper and she did not recall who told her to read it.

80Defence counsel put a line of questions to I.R. seeking to uncover any influence D.C. Jeeva might have had on her testimony at trial.

81On further questioning defence counsel asked I.R. if she read the statement today or yesterday and she said, “No”. He asked her if D.C. Jeeva read the statement to her today and she said “yes”. She agreed with defence counsel’s suggestion that D.C. Jeeva read the statement to her so she would remember what to say at trial. I.R. agreed with defence counsel that he practised with her what to say to get ready for trial. I.R. agreed that the job of police is to help people and that people can trust the police because they tell the truth. Defence counsel suggested to I.R. that D.C. Jeeva told her to keep telling the same story no matter what questions were

asked. I.R. agreed. Defence counsel asked I.R. if she was worried that if she did not remember everything she might get into trouble. I.R. answered, “Not really because it’s been a long time and I can’t remember everything.”

82Defence counsel suggested that she sometimes gets into trouble for saying something that is not true. I.R. admitted that sometimes she lies. I.R. agreed with defence counsel that her brother, H.R., gets into a lot of trouble for lying and even keeps on not telling the truth even after people tell him not to lie.

83Defence counsel asked I.R. about a mistake she made when she was living at Lolo’s when she saw some pictures on the computer of people without clothes. I.R. exclaimed, “Oh yah, Ugh!” Defence counsel directed I.R. to the transcripts of the preliminary inquiry to refresh her memory as to what she and H.R. saw on the computer.

84Defence counsel pointed out that what I.R. said she saw by mistake were people doing sexual things – one picture of a man rubbing his penis on a woman’s vagina and another picture of a man with his mouth on a woman’s vagina. I.R. responded that she just recalled the first picture. Defence counsel put to I.R. that she had made that mistake with the computer more than once and she agreed. He further pointed out to her that she knows from friends at school that they look at this type of pictures too. I.R. agreed. She said maybe once she talked to her friends at school about this type of thing.

85Defence counsel cross-examined I.R. about what she said in-chief about the first incident in Lolo’s bedroom. He pointed out to I.R. that she said to Crown counsel that Lolo locked the bedroom door. She responded, “I don’t know”. She said she saw a piece of wood so tall it could reach the door knob. She said she did not see him lock the door, that she does not know how he locked the door. She then testified she saw him lock the door but not how he locked the door because he was in front of the door knob.

86Defence counsel pointed out that I.R. never told the police Lolo got a block of wood from the closet. She testified she saw Lolo get a block of wood from the closet but does not recall if she told that to the police or if the police asked her about it.

87Defence counsel pointed I.R. to another part of her testimony from the preliminary inquiry. He suggested that she told another story then about what happened on the day she saw Lolo peeing in the bathroom. Defence counsel pointed to an area of the transcript where she said after she saw Lolo peeing she told H.R. He suggested that according to the transcript she said she and H.R. then went outside right after that to the garden and that she and Lolo did not stay in the bedroom as she said before. Defence counsel suggested I.R. never told the police about Lolo peeing. I.R. responded that she does not remember.

88At trial defence counsel, referring to the transcript, showed I.R. where at the preliminary inquiry he suggested to her that the story about the incident in the bedroom was just pretend and she answered “yes”. At trial, defence counsel asked if she was telling the truth at the preliminary inquiry and I.R. said “yes”. Defence counsel then referred to the transcript where he asked I.R. whether the bedroom story happened and she agreed the bedroom story did not happen, and that only the story about going into the garden was true.

89Defence counsel repeated that evidence from the preliminary inquiry about going right to the garden after seeing Lolo peeing. I.R. testified at trial, “I know, but that’s wrong.” When defence counsel suggested she did not tell the truth at the preliminary inquiry, I.R. responded, “I probably got confused with the question or it was a different day. I got confused with the day.”

90I.R. responded that what defence counsel said about her and H.R. going to the garden after she saw Lolo peeing is not true. She insisted that she and Lolo were still in the room and that she told H.R. about the peeing after things happened to her, and then they went to the garden.

91Defence counsel asked I.R. questions about the details of the bedroom incident. I.R. agreed she did not see what Lolo was doing. She agreed she did not see his penis. Defence counsel then pointed out she told the police he had his mouth on her vagina but she did not say she actually saw him do that. I.R. responded she did not recall what she told the police but she knew it was happening because she felt it.

92Defence counsel pointed out that at trial I.R. said Lola was in the kitchen during the bedroom incident but at the preliminary inquiry she said she might have been in the garden. I.R. agreed that her memory at the preliminary inquiry would be better than at trial.

93Defence counsel suggested I.R. did not tell the police that Lolo pulled up her shirt and touched her boobs. I.R. responded that she did not recall whether she told that to the police. Defence counsel further suggested I.R. did not tell the police Lolo sucked on her vagina. I.R. responded she does not remember. Defence counsel further suggested I.R. did not tell the police that H.R. yelled from behind the bedroom door “What are you guys doing?” She said she did not think she told the police that. Defence counsel pointed out that at the preliminary inquiry she testified that she did not say anything back to H.R. but when Crown counsel asked her yesterday if she said anything to H.R. she said that she said, “I don’t know nothing (sic).” I.R. responded that the last thing she told Crown counsel yesterday was true.

94Defence counsel questioned I.R. about her evidence that she saw H.R.’s eyes under the bedroom door. Defence counsel suggested that it was impossible for her to see his eyes from where she was on the bed. I.R. attempted an explanation. She responded, “I was lying down my head was a little up to the side I guess. I saw his eyes because I can’t tell how he could’ve saw (sic) this happen.” When asked if she guessed that she saw his eyes, I.R. responded, “Yes not sure if I saw his eyes.”

95Defence counsel put to I.R. that she was afraid to tell her mother about what she said Lolo did because she did not want to get into trouble for making up stories. I.R. responded, “Not about making up stories. Sometimes I make up stories to mom but with serious things like this, I tell her the truth … “I wouldn’t lie about that. When I get angry I tell my mom.” Defence counsel put to I.R. that she learned it was serious after she told her mom. I.R. said “yes”.

96Defence counsel asked I.R. details about the garage incident. He pointed to the evidence in the preliminary inquiry transcript where I.R. said the front door of the garage was open. He pointed to the fact that at trial I.R. said the front door was closed. I.R. responded, “I told you that last time at court but I don’t think the front door was open.” She agreed with defence counsel

that her memory would be better a year ago but responded, “I don’t remember but I don’t think the garage door was open.” I.R. agreed that if the front door to the garage was open people could see inside from the street.

97Defence counsel suggested that at the preliminary inquiry I.R. told another story about what happened when she went into the garage when Lolo was working with his tools. At the preliminary inquiry I.R. said she spent about five minutes in the garage looking around and then she asked Lolo if she and H.R. could go on a bike ride. According to the preliminary inquiry evidence, I.R., H.R. and Lolo went together for 30 minutes for the bike ride. I.R. agreed that is what she said at the preliminary inquiry.

98Defense counsel suggested that is what happened that day and not the things she said Lolo did to her in the garage. I.R. responded, “Before we went on the bike ride he did those things to me.” Defence counsel reminded I.R. that she agreed at the preliminary inquiry that it did not happen. I.R. responded, “Now I know the things that happened in the car happened to me.” Defence counsel again reminded I.R. that she said “no” when asked whether the things happened in the garage and I.R. repeated, “I know I said no but I know it happened to me.” Each time defence counsel suggested that when I.R. said at the preliminary inquiry that it did not happen, I.R. insisted she was wrong when she said it did not happen because it did happen to her.

Re-Examination

99In answer to a question about whether she was pretending when she was talking about what happened in the bedroom and the garage, she replied “No.” When asked how she knows she was not pretending she said, “Because I remember what happened to me and like if I hadn’t told the truth there’d be no use coming here.”

100Crown counsel asked I.R. questions about guessing versus not guessing and guessing versus being confused. She asked I.R. about when she said she thought one of Lolo’s children lived with Lolo and Lola if she was guessing and I.R. said “yes”. Crown counsel asked her whether she was confused as to which days things happened to her and I.R. said “yes”. She was also asked whether she got confused about the order in which things happened and I.R. again said “yes”.

101Crown counsel asked I.R. if she was confused, guessing or telling the truth about what Lolo did to her in the bedroom and the garage and I.R. said she was telling the truth. She was asked whether she was guessing, confused or telling the truth about what day of the week, time of year, what she was wearing, about whether the garage door was open or closed. To all of those questions, I.R. said she was guessing. She said she guessed “because I was not really sure but thought it happened. Not sure so I guessed.”

102Crown counsel pointed out to I.R. that she agreed with a lot of the suggestions defence counsel made when he was questioning her. Crown counsel asked her why she did that. I.R. responded, “There was (sic) a lot of things I agreed with. There was (sic) a lot of things that it was true but sometimes I was confused and sometimes I was guessing.”

103When asked what D.C. Jeeva used to prepare her for trial, I.R. pointed to the transcript. She said D.C. Jeeva read it to her. She said she did not recall D.C. Jeeva saying anything extra,

anything more than what was on the page. Crown counsel reminded her that under cross- examination she said D.C. Jeeva reviewed with her a handwritten document to prepare for the preliminary inquiry. Crown counsel also reminded her she told defence counsel when she read it she did not know what it said. I.R. responded, “I didn’t know what it said. It had some mistakes.

… It didn’t look right, one part where I just couldn’t read it.”

104Crown counsel questioned I.R. about defence counsel’s suggestion that D.C. Jeeva told her to tell the same story no matter what. I.R. responded, “I don’t remember him telling me that.” Crown counsel asked her about defence counsel’s suggestion that I.R. was just saying what people wanted her to say. She asked I.R. what she thought people wanted her to say. I.R. answered she did not know.

105When asked whether she thought people wanted her to tell the truth, she said “yes”. In answer to the question of who told her to tell the truth, she responded her mother and the court support worker. In answer to the question whether the officer told her to tell the truth, I.R. answered that she did not recall him telling her that. When asked whether she told the police the truth during the interview, she said she told the truth.

106Crown counsel pointed out to I.R. that she told defence counsel she did not see Lolo’s penis when he rubbed it on her vagina. She asked I.R. how she knew Lolo did that. I.R. answered, “It did not feel like his hand. It felt like his penis. I know it wasn’t any part of his body”. In answer to Crown counsel’s question about how she knew Lolo’s mouth was on her vagina, I.R. said, “It felt like his mouth. It felt like he was sucking it. No other part of a body can suck. So it felt like his mouth.”

H.R.’s Evidence at Trial

107As I noted earlier, H.R.’s evidence was not in large part very reliable or credible. H.R. was also asked if he understood the difference between the truth and a lie, the truth and make- believe and between pretend and a lie. He said he did understand. He was also cautioned about the importance of telling the truth. H.R. was age 8 when he testified at trial. While I was satisfied he gave appropriate answers to the questions about the truth and lies and was therefore competent to testify, I found he did not always put into practice what he appeared to understand.

108When Crown counsel asked him about the bedroom incident, he said I.R. and Lolo were in the bedroom alone. The door was closed and he was looking under the door. He said he wanted to see what they were doing because they would not let him in. He said Lolo locked the bedroom door. He could see his foot under the bottom of the door and he heard him lock it. He said he saw Lolo and I.R. in the bedroom more than one time.

109In answer to Crown counsel’s questions, H.R. said when he looked under the door he saw his sister’s tights and top on the floor in front of the door. He said he saw half of the clothes on the floor and the other half on the wall. He saw Lolo’s slippers. H.R. said he could see both I.R.’s and Lolo’s feet beside each other. He saw his sister’s feet on the bed and sometimes half off the bed. Lolo’s feet were on the bed and sometimes hanging there. H.R. testified he could see I.R’s and Lolo’s waists on the bed facing each other. He also testified he went to the kitchen

and told Lola that I.R. and Lolo were doing something in the bedroom and would not let him in. He said Lola would not listen to him.

110Under examination-in-chief, H.R. testified he begged I.R. to tell him what they were doing in the bedroom but she never told him. He said she told their parents. He described what happened when I.R. told the parents. I.R. was standing in the door and the parents told H.R. to get away. He said he listened in on their conversation. H.R. said his sister told him she told their mom what she did. H.R. testified no one told him to make up the story.

111Crown counsel asked H.R. about the difference between the truth and lies and between a lie and pretending. He answered the questions such that he seemed to know the difference between the truth and a lie and a lie and pretending. When asked whether someone should get into trouble for pretending, he answered “yes because it’s not good.”

112Under cross-examination, defence counsel asked H.R. if he recalled saying at the preliminary inquiry that he forgot a lot of details about the story and H.R. agreed. He agreed that with the passage of time he had an even harder time recalling details on his own.

113Defence counsel asked him if anyone showed him anything before he testified at court.

H.R. said he was shown two things – what he said in court and what he said at the (interview) house. He agreed that one of the papers was handwritten and the other was typed. H.R. testified that he read some things and D.C. Jeeva read the handwritten papers to him. Defence counsel asked if the police told him what to say and he said “yes”.

114In answer to defence counsel’s question, H.R. admitted he gets into trouble for not telling the truth. Defence counsel suggested to H.R. when someone tries to remember something they sometimes make a mistake. H.R. agreed. He agreed he had done this and said people should not get into trouble for this. Defence counsel referred to I.R. and him looking at a video of adults doing sexual things. He agreed his parents found out and he got into trouble and he sometimes talked about these things with kids at school.

115Defence counsel directed H.R. to the transcript of the preliminary inquiry where he said he only saw I.R. and Lolo alone once. H.R. agreed it was not true that he saw them more than one time. Defence counsel asked H.R. about the incident in the bedroom. Defence counsel referred to the narrow space under the door and suggested H.R. could not see under the door if he was sitting outside the door. H.R. responded that he was lying on the floor. Defence counsel challenged H.R. that all he could have seen is the wooden floor. H.R. insisted he could see clothes and slippers. Defence counsel then suggested H.R. must be guessing if he said he saw feet under the door. H.R. responded “yes”.

116Defence counsel pointed out that it was at trial when he first said after he looked under the door he went to the kitchen to tell Lola. Defence counsel suggested he was guessing. H.R. said “yes”. Defence counsel also suggested he was guessing when he testified he saw I.R.’s and Lolo’s waists. H.R. agreed. Defence counsel suggested that H.R. never saw Lolo and I.R. on the bed. H.R. responded that he first saw I.R. lying on the bed the last time because the door was opened and then Lolo locked the door. At the suggestion H.R. was guessing about that, H.R. responded “yes.”

THE LOST EVIDENCE APPLICATION

117The accused’s right to make full answer and defence is tied to his right to full and fair disclosure: [R. v. Stinchcombe No. 1, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.)]. Various remedies are available for failure to disclose relevant, unprivileged evidence, including adjournments, awards of costs against the Crown and stays of prosecution “in the clearest of cases”: [R. v. La, at para. 66].

118The accused is seeking a stay of prosecution under s. 24(1) of the Charter based on the violation of his right to make full answer and defence as protected by s. 7 of the Charter. It is the defence’s position that the loss of the audio recording results in a violation of the Crown’s and police’s obligation to preserve the fruits of the investigation: [R. v. La, at para. 20].

119R. v. La sets down three criteria for determining whether a s. 7 violation has been committed by the loss of the evidence:

• There has been no unacceptable negligence.

• There is no abuse of process.

• The accused’s right to make full answer and defence has not been impaired.

Breach of Charter, S. 7 - Unacceptable Negligence

120It is the Crown’s onus to satisfy the court there is no unacceptable negligence.

121The video recordings of the interviews of the children, especially that of I.R., and the mother, are obviously relevant to the issue of the accused’s guilt of the offences alleged. The police have met their duty to disclose the evidence. They disclosed the videotapes to the defence. This is separate from their duty to preserve the evidence.

122If there is a loss or destruction of evidence or, as in this case missing evidence, then the Crown is required to explain this. If the explanation is satisfactory the Crown has discharged its obligation unless the circumstances giving rise to the loss or destruction are such that a remedy under the Charter is warranted: [R. v. Stinchcombe (No. 2), 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754, at para. 2, (S.C.C.)].

123In the case at hand, the practice of the police did allow the loss of evidence they could have had in their possession. But they did disclose what they had. This is not a case like most where either the police failed to disclose evidence they had or lost or destroyed evidence that had been in their possession. The case before the court involves a failure, at the point of its production and during its production, to ensure the proper creation of evidence they had intended to create. As well, neither the police nor the Crown inspected the evidence before the disclosure to the defence.

124Defence counsel questioned P.C. Kent and D.C. Jeeva about police policy on conducting electronic interviews. He pointed to Policy 04-32 entitled, “Electronically Recorded Statements”. Both P.C. Kent and D.C. Jeeva testified they were aware of the policy. It requires

officers to ensure the interview room is prepared for the recording and the equipment is in proper working condition.

125While a policy is not determinative of the standard of reasonableness of police conduct, a policy could assist with this assessment. This has been the subject of judicial comment:

The police, through their policies, do not determine the standard of care applicable to the duty to preserve evidence. However, where a policy appears reasonable according to an appropriate standard at the time it was in force, compliance with that policy strengthens the submission that there was no unacceptable negligence.

[R. v. B. (F.C.) 2000 NSCA 35, N.S.C.A, at para. 26, (Ont. C.A.); leave to appeal refused, 2000 CarswellNS 320, S.C.C., Sep. 28, 2000]

126The policy also states: “The electronically recorded statement is now regarded as a more reliable form of evidence. The more serious the offence, the greater the expectation that related statements be electronically recorded.” No doubt sexual crimes against a young girl are serious offences.

127It would have been evident to the police that the recordings of the children’s interviews would produce the most relevant and probative evidence for trial. The officers would appreciate that the recording, particularly of the complainant’s statement, would be critical to the Crown’s case and to the defence’s ability to cross-examine the witness. The missteps by the police are especially amplified in relation to children’s statements given the important place in a trial that s.

751.1 of the Criminal Code assigns to video recordings of children.

128The question to be determined in considering unacceptable negligence is whether the Crown or police took reasonable steps in the circumstances to preserve the evidence, or in the case at hand, to ensure the creation of the evidence: [R. v. La, at para. 21]. Evidence lost, missing, or destroyed as a result of ordinary human error or human frailty does not meet the standard of unacceptable negligence. Unacceptableness is a question of fact to be decided on the facts of the case. The problem in this case starts with the fact the police did not test the recording equipment before they started recording or during the recording.

129It is a positive factor that the interviews were conducted in a child-friendly facility instead of a police station as is required under the policy. But the officers had never previously recorded an interview at the Gatehouse so they were not familiar with the equipment. As part of her narrative P.C. Kent said the staff at the facility assured her the equipment was set up and ready to record. I find the fact the officers had never used the equipment should have placed a greater obligation on them to test the equipment before recording such critical evidence.

130P.C. Kent took on the responsibility of going into the equipment room to activate the recording. To P.C. Kent the equipment appeared to be set up to record. Neither officer sought the assistance of the staff at the Gatehouse. P.C. Kent adjusted the zoom feature on the camera and then pressed the record button on the converter. She did not do a test by activating the playback feature to check whether the audio and video were being recorded.

131P.C. Kent testified she was acting in accordance with her normal practice when she did not test the equipment. She understood the equipment was set up to record and there was no appearance of any irregularity with the equipment when she encountered it so it just did not occur to her to test it.

132Another aspect of police and Crown conduct must be examined for negligence, their treatment of the interview recordings after the interview. Neither the police nor the Crown examined the integrity of the video recordings by playing them before they were disclosed to the defence. This is also problematic but not as critical in this analysis since that misdeed came after the initial, irreversible error had been committed. Nonetheless, this is of concern since the Crown was not aware of the audio problem until defence counsel alerted the Crown several months after the interviews. The initial misdeed put the Crown in an untenable position. The possible remedy of re-interviewing the young children would not have been a palatable option since doing this would run afoul of the spirit of s.751.1 by requiring the children to relive a stressful police interview.

133In conclusion, I find the Crown has not met its burden to show on a balance of probabilities that the police’s conduct was not the result of unacceptable negligence. I find the police policy sets a reasonable standard in that it reminds officers of the importance of electronic recordings as evidence and cautions them to check the working condition of the equipment. I find the violation of the policy, especially in relation to the evidence of a child complainant, and the consequent unavailability of critical evidence meet the standard of unacceptable negligence. Hence, there was a breach of the accused’s s. 7 Charter rights.

134This finding does not complete the analysis of whether the defence is entitled to a stay of proceedings under s. 24(1) of the Charter. A determination must be made of whether the conduct of the police and Crown rise to the level of an abuse of process.

Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.

[R. v. La, at para. 20]

Abuse of Process

135The burden is on an accused to prove abuse of process on a balance of probabilities. The accused must show that allowing the state to proceed against him would violate the community's sense of fair play and decency or that his trial would be an oppressive proceeding: [R. v. D. (E.) (C.A.), 1990 CanLII 6911 (ON CA)]. Abuse of process involves conduct on the part of governmental authorities or agents that violates those fundamental principles. Conduct such as the deliberate destruction or loss of material by the police directed to defeating the Crown’s obligation to disclose material commonly fall into this category”: [R. v. La, at para. 22].

136A case before the Supreme Court of Canada involved a clinic in possession of the therapeutic records of a woman involved as complainant in a sexual assault trial. Through a

third party application the defence sought production of the records. Prior to trial the clinic shredded notes contained in hundreds of files. The shredding was done to prevent anything from being ordered produced. The court found the destruction of that material and its consequent non- disclosure resulted in a violation of the accused’s Charter right to full answer and defence: [R. v. Carosella (1997), 1997 CanLII 402 (SCC), 4 C.R. (5th) 139 (S.C.C.)]

137An Ontario Court of Appeal case dealt with critical evidence, including an audiotape that was not disclosed to the defence. The tape had been copied but neither the original nor the copy could be found. The police were evasive about the existence of the tape and deliberately failed to advise the Crown the evidence was lost. The police did not reveal the loss to the defence until two-and-a-half years after the trial. The court found that this was abusive conduct by the authorities and that the fair trial interests of both accused had been thwarted by state agents: [R. v. Court and Monaghan (1995), 1995 CanLII 1741 (ON CA), 23 O.R. (3d) 321(Ont. C.A.)].

138Clearly, there is no support for a finding of abuse of process in this case. There was no such deliberate intention or action on the part of the police to keep evidence from the defence. The police delivered the tape recordings to the Crown which disclosed it to the defence but neither the police nor the Crown was aware of its defect, that the audio was not recorded. There was nothing deliberate in the police’s and Crown’s conduct. I find the defence has failed in its burden to show an abuse of process.

Impairment of Right to Full Answer and Defence

Possibility of Impairment

139To establish an “impairment” of the Charter right to full answer and defence the defence must demonstrate a “reasonable possibility” that the undisclosed information could have been used in meeting the case for the Crown, in advancing a defence, or in otherwise making a decision which could have affected the conduct of the defence. As the Supreme Court of Canada has observed in R. v. Mc Quaid, the analysis does not end there. The level of impairment required to be proven increases in relation to the scope of the remedy sought. Where the defence is seeking the extraordinary remedy of a stay of proceedings proof of “irreparable prejudice” to the right to make full answer and defence must be established.

Once an accused establishes impairment of the right to make full answer and defence as a result of the Crown's failure to disclose, he or she is entitled to a remedy under s. 24(1). Again, it is at this stage that the degree of impairment or prejudice to the accused's rights must be assessed and considered in relation to the remedy sought. For example, an accused who seeks the extraordinary remedy of a stay of proceedings must not only establish, on a balance of probabilities, that the right to make full answer and defence was impaired, but must also demonstrate irreparable prejudice to that right. … By contrast, where the remedy sought is a new trial, an accused need only persuade the appellate court of the reasonable possibility that the failure to disclose affected either the outcome at trial or the overall fairness of the trial process, and nothing more.

[R. v. Mc Quaid, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at paras. 22 and 23, (S.C.C.); emphasis by the author]

140The missing audio recording raises the question of impairment to the accused’s right to make full answer and defence. As noted earlier, this is highlighted in circumstances where the missing evidence is a very young complainant’s prior videotaped statement to the police. I.R. was between ages 5 and 7 at the time of the alleged offence, age 7 at the time of the police interview, age 8 at the time of the preliminary inquiry and age 10 at trial.

141Section 751.1 of the Criminal Code and cases applying that provision recognize children, more so than adults, have better recall of events shortly after they occurred than would be the case weeks, months or years later. This is more the case the younger the child. So the videotape of I.R.’s interview is likely to have contained a more accurate recollection of events than her testimony given later at trial. Access to the videotape for trial would have benefited the court in its search for the truth. It might have better assisted the defence in meeting the Crown’s case had it had the opportunity to cross-examine I.R. on the prior statement.

142In these circumstances, I find the Crown’s failure to disclose raises a “reasonable possibility” of impairment to the defence’s right to make full answer and defence. However, the fact the defence seeks the extraordinary remedy of a stay of proceedings requires the defence to demonstrate “irreparable prejudice” to its right. To obtain a stay it is not sufficient for the defence to show a failure to disclose or late disclosure of the evidence. The defence must also prove “the impossibility of a fair trial or oppression amounting to abuse of process”: [R. v. Biscette, 1995 ABCA 234, at para. 18, (Alta. C.A.); affirmed (1996), 110 C.C.C. (3d)

285 (S.C.C.)].

143As set out below, the defence did not succeed in establishing “irreparable prejudice.”

Stay of Proceedings

Legal Principles

144A stay of proceedings is only to be granted in “the clearest of cases”. The Supreme Court of Canada in R. v. O’Connor explains:

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.

[R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 83, (S.C.C.)]

145The Court further explains. “‘The clearest of cases’ are those where the degree of taint to the case is such that there is “overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice”: [R. v. Power (1994) 89 C.C.C.

(3d) 1, at para. 12, (S.C.C.)]. There are two criteria that must be satisfied for the defence to obtain a stay of proceedings:

• 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

• No other remedy is reasonably capable of removing that prejudice. [R. v. Regan (2002), 2002 SCC 12, 1 S.C.R. 297, at para. 54 (S.C.C.)]

146The defence must demonstrate more than “likely relevant and material” or “logically probative to issues at trial, including the credibility and reliability of the complainant”. The defence must show “actual prejudice” to the accused’s right to make full answer on defence: [R.

v. J. P., [2009] O.J. No. 5169, at paras. 6 and 7, (Ont. C.A.)]. R. v. La held:

It is not necessary to elaborate a test to be used in such cases in order to deal with the case at bar. Suffice it to say that, where the Crown has met its disclosure obligations, in order to make out a breach of s. 7 on the ground of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence.

[R. v. La, at para. 25]

Actual Prejudice and Irreparable Harm

147It might have been better for the defence if the Crown had produced viable recordings of the children’s evidence especially that of I.R. I.R.’s statements during the interview if adopted could have served the purpose of s.751.1 and stood in for her evidence at trial, supplemented by her trial testimony, and the defence could have cross-examined I.R. on that prior statement.

148It is apparent from the sketchiness of the officers’ notes that they would do little if anything to fill the void caused by the loss. The officers expected the videotape equipment to be functioning properly so it appears they relaxed in their notetaking. Almost complete reliance therefore had to be placed on I.R.’s trial testimony adduced as it was some two years after her initial disclosure to the police.

149However, I find the effect of the missing audio cuts both ways. The loss was not only to the defence. While the defence lacked the videotape and transcripts as effective tools for cross- examination, the Crown lost the possibility for a more cogent source of evidence than I.R. was able to give at trial. It is the Crown that has the burden at trial to prove the accused’s guilt. Any weakness in I.R.’s evidence directly detracts from the Crown’s chances of success in meeting its burden.

150The same can be said of the evidence of the police. On the negative side for the defence, the deficiencies in the officer’s notes left the defence without the optimal source of backup information about the interviews from which to cross-examine I.R. and H.R. On the favourable side for the defence the notes could provide only limited assistance to the Crown’s case.

151There is another way in which the Crown’s evidence could be considered more help to the defence’s case than a detriment.

152There is, I find, a problem with possible tainting by D.C. Jeeva of I.R.’s and H.R.’s preliminary inquiry and trial evidence. The fear of tainting comes from a concern about the extent to which the inaccurate and misleading perceptions in D.C. Jeeva’s synopsis might possibly have been conveyed to the children.

153The evidence is that D.C. Jeeva prepared I.R. and her brother for the preliminary inquiry by using P.C. Kent’s skeletal interview notes. He used the notes and the preliminary inquiry transcripts to prepare them for trial. The children testified D.C. Jeeva spoke to them before they testified at each proceeding, gave them the notes and transcripts to read, and he also read to them from the documents.

154It is not apparent what the children understood at the time from the documents. It is also not clear what D.C. Jeeva said to them or how they interpreted what he said to them especially given their vulnerability as children in relation to him as a police officer. The children testified they felt they should listen to the police and try to do what they thought the police expected.

155In a round-about way then the defence was assisted by the shortcomings in the police’s notes and by the use they were put to in relation to the children’s evidence.

156Courts have emphasized it is not sufficient to show evidence was lost that prejudiced the defence’s case or that the lost or missing evidence would have assisted the defence. There has to be a showing of substantial prejudice. Prejudice must be assessed in the context of other available evidence. The Ontario Court of Appeal commented on this:

The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration.

[R. v. Bradford 2001 CanLII 24101 (ON CA), 2001 CarswellOnt 69, at para. 8, (Ont. C.A.); R. v. Sheng 2010 ONCA 296, 2010 CarswellOnt 2421, at para. 47, (Ont. C.A.)]

157In this light it is important to recognize that defence counsel was not constrained in his ability to test I.R.’s and H.R.’s credibility. He had the opportunity to conduct a lengthy and strenuous cross-examination of I.R. She was on the witness stand during two days. He also cross-examined H.R. at length. Defence counsel was able to use the transcripts of the preliminary inquiry to challenge I.R.’s and H.R.’s credibility about the details of the incidents of sexual assault. In so doing defence counsel was able to establish a clear defence − that the children were not telling the truth about the sexual abuse.

Conclusion on Stay of Proceedings

158I find on balance that any prejudice the defence might have faced as a result of the missing evidence is overcome by the benefits this brought to the defence’s case. I fail to see any irreparable harm has occurred to the accused’s right to make full answer and defence. This is not one of the clearest of cases where a stay of proceedings is the appropriate remedy. As will be seen, any prejudice that might exist was not manifested, perpetuated or aggravated through the conduct of the trial or by its outcome.

159I disallow the application for a stay of proceedings.

ANALYSIS OF TRIAL EVIDENCE

Credibility in Childhood Sexual Assault Cases

Legal Principles

160The courts have recognized the differences between children and adults in terms of their memories, such as the types of things children retain and do not retain and the effects of trauma on children’s memories. The Supreme Court of Canada commented:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

[R. v. B. (G.), 1990 CanLII 7308; and [1990] 2 S.C.R. 30.), at p.p. 54 - 55, (S.C.C.)]

161In R. v. W. (R.), the Court further commented:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.

[R. v. W. (R.), 1992 CanLII 56; [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134, at p.

144, (S.C.C.)]

162The Court of Appeal made an important point on the standard applicable to the evidence of children in comparison to that of adults:

As I understand these two judgments, we must assess witnesses of tender years for what they are, children, and not adults. We should not expect them as witnesses to perform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level of scrutiny for reliability than we do adults. My concern is that some trial judges may be inadvertently relaxing the proper level of scrutiny to which the evidence of children should be subjected. The changes

to the evidentiary rules were intended to make child evidence more readily available to the court by removing restraints on its use that existed previously but were never intended to encourage an undiscriminating acceptance of the evidence of children while holding adults to a higher standard.

[R. v. Stewart, 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811, at p. 8, (Ont. C.A.)]

Application of Principles to the Evidence

163I.R. and H.R. used to go upstairs to visit Lolo and Lola almost every day during the two- year period they lived in the basement. In relation to I.R., what I saw at times were minor differences between evidence she gave at the preliminary inquiry and at trial and differences in evidence she gave at different points in the trial. I.R. was testifying at the preliminary inquiry between two and three years after the alleged incidents and at trial between three and four years after the alleged incidents. It was clear to me, and not unexpected, that I.R. got confused at times between the various times she and H.R. went upstairs to Lolo’s and the chronology of events. Also understandably, I.R. did not recall some details of the events the same way she recalled them at the preliminary inquiry.

164As the Supreme Court of Canada observed, “a skillful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistencies in her evidence”: [R. v. C.C.F., 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at para. 48, (S.C.C)]. Defence counsel did conduct a rather direct and unrelenting cross-examination, putting to I.R. time and again various combinations of facts he fashioned into different versions of the incidents. I.R. tried to bear up under the lengthy questioning but it was clear I.R. got confused on a number of occasions.

165For instance, on the bedroom incident, I.R. testified that she entered Lolo’s bedroom with an adjoining bathroom and saw Lolo peeing. She said it was after that that Lolo placed her on the bed and abused her and after that she left the bedroom and went out to the garden with H.R. where Lola was gardening. Defence counsel pointed out to her that she had previously said after she saw Lolo peeing, she just left the bedroom and she and H.R. went out to the garden, suggesting the sexual assault did not occur. I.R. explained she confused what happened on different days.

166Defence counsel indicated to I.R. that on one occasion she said Lola was in the kitchen during the bedroom incident and on another occasion she said Lola was in the garden. I.R.’s response indicated she did not recall for sure if Lola was in the kitchen or garden. Defence counsel pointed out that in part of her trial testimony I.R said the bedroom incident happened in the spring and at another point in her trial evidence she said she could not recall. I.R. responded that she was guessing.

167Regarding the garage incident, defence counsel put to I.R. that she had testified she had gone into the garage to see what Lolo was doing. He then put her on the back seat of his car and sexually abused her. Defence counsel suggested she was not telling the truth because she had previously testified that she went into the garage and then asked Lolo if she and H.R. could go for a bike ride to the park. Lolo agreed and the three of them went to the park. Defence counsel suggested I.R. was not telling the truth when she said Lolo abused her in the car. I.R. explained they did go to the park but that was after Lolo did those things to her.

168Defence counsel also pointed out the inconsistency in her evidence as to whether the front garage door was open or closed. I.R.’s response indicated she was not sure whether the garage door was open or closed.

169I.R. tried to convey she was mixing together events from different days and that the order of when things happened was getting confused. She admitted she could not recall certain details about the incident like whether Lola was in the kitchen or garden or whether the garage door was opened or closed and what season it was.

170Confusing the facts of the many different occasions of visits upstairs and not recalling the details of incidents, these are the types of things young children often have difficulty retaining in their memories with the passage of time. This alone would not be a reason to entirely discount I.R.’s evidence about the sexual assaults. This alone does not prove I.R. did not have the experiences she describes. I must look at I.R.’s evidence in those areas of her testimony in the context of all the evidence.

171I do have some more serious concerns with other areas and types of evidence I.R. gave.

172I.R. was quite detailed in describing how Lolo “locked” the bedroom door before he

abused her. I.R. described Lolo locking the bedroom door with a piece of wood she thought was

curved (showing with her hands that it was about 15″) by placing it on the floor at the gap between the door and the floor. With her fingers she showed the gap to be about 20 mm. She said she believed he got the piece of wood from the closet. When asked whether she told the police about the block of wood, she responded, “no.”

173This is a fairly significant piece of trial evidence which I cannot imagine she would have forgotten about three years earlier when she spoke to the police when her memory would have been better. She was very precise in her detail. There is a clear suggestion here that I.R. made up this evidence for trial.

174There is another problematic area of I.R.’s evidence where she indicates H.R. saw the bedroom incident. Both I.R. and H.R. gave basically the same evidence that H.R. was outside the bedroom door during the incident and he was looking under the space at the bottom of the door. I.R. testified she could see his eyes looking into the bedroom from between the wooden board Lolo had put at the bottom of the door. H.R. testified he was lying on the floor and looked through the space under the door and could see I.R. and Lolo on the bed.

175Defence counsel confronted I.R. with the implausibility of her evidence and suggested that the reason she gave that evidence was because H.R. had told her he saw something. I.R. responded, “I saw his eyes because I can’t tell how he could’ve saw (sic) this happen.” Defence counsel suggested to I.R. that H.R. had told her he saw something and that is why she was guessing that if he saw something maybe she saw his eyes looking under the door. H.R. responded, “maybe, maybe not.”

176I agree it is not common sense that it would be possible for I.R. to see H.R.’s eyes under the door from the bed or for H.R. to see under the door and up onto the bed and observe I.R. and Lolo on the bed. It is not likely to be a coincidence that these two young children happened to tell the same fanciful story about H.R. witnessing the bedroom incident. It is more reasonable to

conclude that they colluded in this area of the evidence to make H.R. a witness to the bedroom incident to support I.R.’s allegations.

177This, I find, poses a rather serious credibility problem for I.R. in relation to the bedroom incident.

178I am also concerned about an inconsistency between I.R.’s evidence at the preliminary inquiry and trial about the bedroom incident. At the preliminary inquiry defence counsel suggested to I.R. that her story about the incident in the bedroom was just pretend. At the preliminary inquiry I.R. answered “yes”. At trial, defence counsel asked if she was telling the truth at the preliminary inquiry and I.R. said “yes”. Defence counsel then pointed to the fact he asked her at the preliminary inquiry whether the bedroom story happened and I.R. agreed the bedroom story did not happen and that she was telling the truth at the preliminary inquiry.

179This area of I.R.’s evidence could be the result of mixing up events from different days. But it does raise some concerns about whether she was confused by the questions or whether this represents a previous recanting of the bedroom incident. If so, this raises some doubt about her trial evidence.

180Defence counsel pointed out to I.R. that at the preliminary inquiry she said “no” when asked whether the incident in the garage occurred. I.R. admitted she said that at the preliminary inquiry, that she said it did not happen, but insisted at trial she was wrong when she said that because she “knows the things happened to her.”

181This too could be a case of I.R. mixing up events. But this is an inconsistency in a critical area of evidence. It could also represent a previous recanting of the garage incident which also raises some doubt about her trial evidence.

182Then there is the problem alluded to earlier of the possibility that D.C. Jeeva’s communication with I.R. and his use of the police notes might have also been a source of confusion. D.C. Jeeva spoke to I.R. before the preliminary inquiry and trial. He read P.C. Kent’s notes and the preliminary inquiry transcript to her and she read the documents herself.

183There is no way of knowing for certain whether, before she testified at each proceeding,

D.C. Jeeva polluted the information he gave her with the misrepresentations and inaccuracies he authored in the synopsis. I.R.’s responses about D.C. Jeeva indicated she understood the authority of the police. Her vulnerability to D.C. Jeeva’s possible influence, even if unconscious on his part, in view of his misconceptions of certain critical information, is a matter of some concern.

184I.R. stated under re-examination referring to the notes: “I didn’t know what it said. It had some mistakes. I didn’t get to read it properly. It didn’t look right. One part where I just couldn’t read it (sic).” What effect, if any, I.R.’s view of the notes had on her evidence will never be known. But this gives me some pause when assessing the reliability of her evidence.

CONCLUSION

185In days gone by there was often a question in child sexual abuse cases about how a child could provide a detailed account of sexual abuse by an adult if the child had not actually experienced the abuse. The question was how a child would know such things. In the past there were many fewer sources and opportunities in the normal course of the average child’s life from which they could observe or learn of human sexual activity.

186But this is not the case today with the proliferation of information and images of all sorts including, unfortunately, pornography on the internet. Children are adept at using computers and cellphones to access information, even forbidden information. Both I.R. and H.R. admitted they observed, on a computer, adult sexual interactions between a man and woman involving activity similar to what I.R. alleges against R.B. They both said they shared stories with friends at school about these things.

187While this is something to consider, this is not in any way to suggest this is proof that the children simply made up the story about the sexual abuse based on what they saw on the internet. I mention this to address the age-old notion that the only way a child could know of and describe such things is if they experienced it themselves. This is not necessarily the case in today’s electronic world.

188In the end, on the whole of the evidence I find there is a sufficient reason based on the inconsistencies and credibility problems in I.R.’s and H.R.’s evidence to raise a reasonable doubt as to whether R.B. committed the offences charged.

189The court is faced with some disadvantages. I am dealing with the evidence of a young child complainant which is always fraught with difficulties. As well, the court does not have available the most optimal form of pre-trial evidence from the child as envisaged by s. 751.1 of the Criminal Code. I cannot say I am absolutely certain R.B. did not commit the sexual offences against I.R., but I am not required to be. I am required to acquit if the Crown does not satisfy me beyond a reasonable doubt that R.B. committed the offences charged. The Crown did not succeed in accomplishing this.

190I therefore find R.B. not guilty of the offences charged.

VERDICT

191For the foregoing reasons, I am satisfied the Crown has failed to prove R.B.’s guilt beyond a reasonable doubt on the offences against I.R. on counts 1, 2, 3 and 4 on the indictment.

192I therefore find R.B. not guilty on all counts on the indictment and acquittals will be entered accordingly.

Released: June 20, 2016

B.A. ALLEN J.

DATE: 20160620

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R.B.

REASONS FOR DECISION