CITATION: R. v. Goro, 2016 ONSC 7956

COURT FILE NO.: 171/14

DATE: 2016-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JAN GORO

Applicant

John Dibski and Sean Bradley, for the Crown

Ariel Herscovitch and Ashley Audet, for the Applicant

HEARD: October 28, 2016

REASONS FOR JUDGMENT

FITZPATRICK J.

1In April 1976, Donald Ross McAvella, aged 54, was killed in his apartment on Harris Court in the City of Burlington. Mr. McAvella was fatally stabbed several times with a kitchen knife. After Mr. McAvella’s body was discovered, the Halton Regional Police secured the scene and began a homicide investigation. In 2013, the Applicant was charged with the second degree murder of Mr. McAvella.

2The Applicant seeks an Order confirming that his sections 7 and 11(d) rights under the Canadian Charter of Rights and Freedoms (the “Charter”) were breached as the result of the loss of evidence from the police investigation, including several officers’ notes, some witness interviews, an audiotape of a confession by a third party suspect, and a videotape of a subsequent interview with this third party where he allegedly recants his prior confession. In terms of remedy, Mr. Goro seeks a stay of proceedings pursuant to section 24(1) of the Charter, on the basis that the Applicant’s right to a fair trial and to make full answer and defence have been irreparably prejudiced.

Facts

3Mr. Goro was charged with second degree murder in relation to the stabbing death of Donald Ross McAvella in an apartment in Burlington, Ontario in April 1976.

4The murder of Mr. McAvella was investigated by the Halton Regional Police. Mr. McAvella was gay and active in the Hamilton gay community. The working theory of the police was that Mr. McAvella was the victim of a slaying within that gay community.

5Not surprisingly, there were many officers who attended at the apartment crime scene in April, 1976 and some of those officers had ongoing involvement in the subsequent investigation to varying degrees. The notes of numerous such officers have been destroyed or are now otherwise lost.

6The list of missing notes included officers directly involved in the case such as: Detective Stonehill who was the first officer at the crime scene and interviewed various persons as part of the investigation, Detective Watson who was one of the two forensic officers working the crime scene, Sergeant MacDonald who attended the initial crime scene and interviewed various persons as part of the investigation, including taking the statements of the two key witnesses, namely the victim’s neighbour, Susan Kalanda who witnessed someone leaving the apartment proximate in time and place to the murder and a taxi driver, John Todd who shortly following picked up a person with physical similarities to the individual observed by Ms. Kalanda and who provided the details for a police composite sketch resembling Mr. Goro, Detective Olmstead who attended the initial crime scene and was involved in the subsequent investigation, Officer Hannah who interviewed the two co-workers of the victim who were the first to discover the deceased in his apartment and Detective Woods who received the telephone call from a third party named Jack Laforge who confessed to the murder of Mr. McAvella.

7Counsel for Mr. Goro prepared a chart setting out the list of all officers whose notes no longer exist plus an explanation for how those notes were lost. The chart also provides a brief description of each officer’s involvement in the investigation. This list and related explanations were not challenged by the Crown. The list is as follows:

Evidence Lost	Reason for Loss	Role in Investigation
Notes from 1976 of Det. Stonehill	Turned in and destroyed	First officer on scene. Observed other officers enter apartment
Notes of Sgt. Brider	Unknown	Second officer at scene after Stonehill
Notes of Officer Reid	Unknown	Officer attended apartment shortly after Stonehill
Notes of Det. Watson (Daily reports also unavailable)	Turned in and destroyed	One of two primary crime scene forensic officers.
Notes of Sgt. MacDonald	Deliberately destroyed – Notes burnt by officer out of upset against police department.	Participated in investigation, including taking statements of primary witnesses.
Notes of Ken Hannah	Turned in and destroyed	Participated in investigation, including interview of persons who found Mr. McAvella deceased in his apartment.
Notes of Det. Olmstead	Turned in and destroyed	Officer attended scene, involved in 1976 investigation in the community
Notes of Officer Alferink	Turned in and destroyed	Unknown
Notes of Insp. Currie	Turned in and destroyed	Unknown
Notes of Insp. Moore	Unknown	Unknown
Notes of Insp. Smith	Turned in and destroyed	Unknown
Notes of Sgt. Richardson	Turned in and destroyed	Interviewed various people in course of investigation
Notes of Sgt. Woods	Turned in and destroyed	Officer received the call from Mr. Laforge confessing to the murder

8The explanation for some of the lost police notes was that they were deliberately destroyed pursuant to a Halton Regional Police directive or policy that was in place prior to 1992. Otherwise there was no explanation for the lost notes.

9The evidence respecting the Halton Regional Police policy for the culling of the officers’ notebooks prior to 1992 was extremely limited. I was simply told by the officers from that era that at some point, in the 1980s or early 1990s, they were ordered to hand in their police notebooks and that these notebooks were destroyed. The officers in this case who surrendered their notebooks as directed testified to being surprised and angry when they learned subsequently their notebooks were destroyed given that the McAvella case was an open murder investigation.

10I did not have any evidence before me respecting the details of the police policy prior to 1992, the process for collecting the notebooks or any mechanism then implemented to ensure that notebooks for ongoing cases remained accessible.

11The earliest written policy that was in evidence before me was from 1992. This policy provides that “notebooks be retained for a period of current plus 10 years. Notebooks issued prior to this 10 year retention period are to be forwarded to Quarter Store for destruction.”

12The 1992 policy further provides that “Notebooks containing major unsolved cases outside the retention period (i.e. homicide, robbery), must be forwarded for inclusion in the investigative file(s).”

13The most current written policy before me was from 2011. This policy provides that “completed notebooks” are to be stored in a “police facility” for three years. The notebooks are thereafter to be forwarded to the “Freedom of Information Unit at headquarters where they will be retained for an additional five years.” The notebooks would then be “destroyed on a date beyond five years from the date of the member’s retirement.”

14The 2011 policy further provides that “any notebooks containing particularly significant information should be brought to the attention of FOI staff in order that they can be separated from the five year destruction cycle.”

15There is other evidence now lost from this investigation in addition to the police notes.

16On February 7, 1988, the Hamilton police received a telephone call from a male who confessed to the murder of Mr. McAvella. The caller did not identify himself but he was subsequently confirmed by the police to be Jack LaForge.

17Mr. LaForge was an individual then known by the police to be involved in the gay-sex-for-money trade and otherwise familiar with the people frequenting the Hamilton gay community. Given his background, Mr. LaForge was approached by the police in 1976 during the initial stages of the investigation to elicit any information he could provide about Mr. McAvella and potential suspects within the gay community. Mr. Laforge was not then linked to the murder.

18Officer Woods received the telephone call from Mr. Laforge. The telephone confession was audio recorded once Officer Woods identified the significance of the call. A transcript of the recorded portion of the call was prepared and disclosed. However, the audiotape of the call no longer exists. There was no explanation for the lost audio recording.

19On February 22, 1988, Mr. LaForge was arrested by the Halton police for the murder of Mr. McAvella on the basis of the telephone confession.

20Following his arrest, Mr. LaForge was transported to the Oakville police detachment where he was interviewed for more than one hour by Detective Chapman. Detective Chapman testified that Mr. LaForge recanted his prior confession during this interview. The recantation interview was videotaped. However, the videotape of the interview no longer exists. There was no explanation for the lost video recording. There was no transcript of the videotape of the interview prepared.

21Following his interview with Detective Chapman, Mr. Laforge participated in a polygraph interview with another officer. Detective Chapman observed but did not participate in the interview. This polygraph interview was brief. Mr. Laforge was asked and answered three questions. Mr. Laforge was determined to have passed the polygraph and was released unconditionally by the police. I am advised that this polygraph interview was audiotaped and has been disclosed.

22In addition to the lost police notes and the lost audio and video recordings, occurrence reports respecting Mr. Laforge and a key prosecution witness, Ronald Wright, were also unavailable.

Law Respecting Lost Evidence

23The Crown has an obligation to disclose all likely relevant information in its possession to the accused (see: R. v. Stinchcombe (1991), 1991 CanLII 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.)). This obligation to disclose places a corresponding duty on the Crown to preserve all relevant evidence to facilitate disclosure (see: R. v. Egger (1993), 1993 CanLII 98 (SCC), 82 C.C.C. (3d) 193 (S.C.C.)).

24The obligation of the Crown to disclose is directly linked to the ability of an accused to make full answer and defence, which is a right provided to every accused by section 7 of the Charter. (see: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 and R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80).

25The failure by the Crown to disclose can arise from various causes. In this case, the subject evidence has been either lost or destroyed.

26The Supreme Court in R. v. La, building upon the comments of the Court previously in R. v. Stinchcombe, R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.) and R. v. Carosella provides the following principles to guide the analysis of an alleged section 7 breach where the Crown fails to disclose evidence:

a) The Crown bears the obligation to disclose all relevant information in its possession with the related duty to preserve all relevant evidence;

b) The Crown bears the onus of explaining any failure to disclose;

c) The Court must analyse the circumstances in which the evidence was lost in assessing the Crown’s explanation, including the relevance that the evidence was perceived to have had at that time. The main consideration is whether the Crown took all reasonable steps to preserve the evidence. The greater the relevance, the higher the degree of care that will be expected to preserve the evidence;

d) An accused’s rights under section 7 of the Charter have been breached where it is determined that the evidence was lost owing to unacceptable negligence. In such cases, actual prejudice to the accused as a result of the loss of the evidence need not be shown in order to establish the breach;

e) There is no breach of an accused’s rights under section 7 of the Charter where the Crown is able to establish that evidence was lost not owing to unacceptable negligence. The onus then shifts to the accused to establish actual prejudice from the lost evidence for there to be a breach under section 7 of the Charter;

f) If there is a breach under section 7 through unacceptable negligence or actual prejudice then the next step is to determine the most appropriate remedy further to section 24(1) of the Charter; and,

g) Assessing the appropriate remedy for the Crown’s failure to disclose, and in particular whether a stay is available, should be examined in the manner set forth in R. v. O’Connor.

27In R. v. O’Connor, the Supreme Court determined that granting a stay for a violation of section 7 is the remedy of last resort and appropriate only when:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and,

(2) no other remedy is reasonably capable of removing that prejudice.

28The Court in R. v. O’Connor suggested there should be a balancing when considering the appropriate remedy for a section 7 breach. The suggested balancing was between the seriousness of the violation, including the community’s sense of fair play with related impact on the integrity of the justice system, on the one hand and societal and the accused’s interest in having a determination of guilt or innocence following a trial of the offence on all of the evidence on the other hand.

29Following the direction in R. v. O’Connor, the Supreme Court in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 provided the following analysis when considering a stay:

31Nonetheless, this Court has recognized that there are rare occasions —the “clearest of cases” — when a stay of proceedings for an abuse of process will be warranted (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

32The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and,

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

30Ultimately, the Court in R. v. O’Connor and decisions following provide that a stay is the appropriate remedy only in the clearest of cases where the prejudice to the accused’s right to make full answer cannot be remedied or where irreparable prejudice would be caused to the integrity of the justice system if the prosecution were continued.

Application to this Case

Charter Section 7 Breach

31Counsel for Mr. Goro in their factum advanced an abuse of process argument. This argument was abandoned before me. The issue I must decide is whether Mr. Goro’s section 7 Charter rights were breached on the basis that the evidence in this case was lost through unacceptable negligence or, failing that, arising from actual prejudice to Mr. Goro from the lost evidence and, if so, what remedy should be granted pursuant to section 24(1).

32As noted above, the lost evidence consists of unavailable police notes from various officers, an audio recording of the telephone confession to the murder by Jack Laforge, a video recording of the police interview of Jack Laforge following his arrest for the murder where he purportedly recanted his earlier confession, the occurrence reports respecting criminal convictions for Jack Laforge, and the occurrence reports respecting convictions for a primary Crown witness, Ronald Wright.

33The Crown did not contest the potential relevance of the lost evidence.

34It requires little explanation of how the notes from officers attending at the scene of a murder and the investigation following are relevant. These notes are the contemporaneous recording of the significant details of an investigation including statements from witnesses. The potential relevance is obvious especially when considering the details of a case now four decades old where some of these officers and witnesses they interviewed were not available to testify.

35Similarly, the lost audio confession and video interview of Jack Laforge have obvious relevance. The Crown during the course of this trial conceded that Mr. Laforge was a viable 3^rd party suspect that could be put to the jury for consideration. Having heard the trial evidence, it is clear that the primary defence being advanced by Mr. Goro was that the murder was committed by Jack Laforge. The audio from the telephone confession and the one hour long video of Mr. Laforge is direct evidence with obvious relevance. The significance of these recordings is amplified given that Mr. Laforge died in or about 1995.

36The occurrence reports providing the details underlying Jack Laforge’s criminal convictions are relevant. The criminal convictions of Mr. Laforge were admitted into evidence on consent. Mr. Laforge’s convictions included weapons related offences. The missing occurrence reports for these convictions could provide details of misconduct potentially lending support to the argument that Mr. Laforge murdered Mr. McAvella.

37The testimony of Ronald Wright is key to the Crown’s case. Mr. Wright testified that he and Mr. Goro were friends living in the same area of Calgary spending regular social time together in the 1970s. Mr. Wright contacted the police in November, 2012 agreeing to provide this information in exchange for payment of $25,000 by the police upon Mr. Goro being convicted. Mr. Wright testified that Mr. Goro confessed to this murder during one of their social outings.

38Clearly, the credibility of Mr. Wright is a fundamental issue. Mr. Wright has a criminal record comprised of approximately six convictions, mostly for crimes of dishonesty and also assaulting a police officer and obstruct police. Mr. Wright testified that his convictions were due to his presence while friends committed the offences. The missing occurrence reports respecting Mr. Wright’s criminal convictions are potentially relevant to his credibility especially in the face of his testimony minimizing his culpability.

39I must next consider the explanation offered by the Crown for the missing evidence given the potential relevance of the missing items.

40I will start with reviewing the Crown’s explanation for the lost notes of various officers in this case detailed in the chart at paragraph 7 above.

41Counsel for Mr. Goro identified thirteen officers whose notes were unavailable to the accused in this case.

42The evidence before me was that eight of these officers turned their notes in at the direction of the police administration and that these notes were destroyed pursuant to the prevailing policy. The only timing details provided were that these officers surrendered their notes over a period running from the 1980s to the early 1990s.

43One other officer, Sgt. MacDonald destroyed his own notebooks in response to his upset over how he was treated by his police employer at the end of his career.

44No explanation was presented as to why the notes of the other officers were no longer available.

45The Crown has the onus of explaining that the loss of relevant evidence does not amount to unacceptable negligence.

46I have no difficulty in concluding that the Crown has failed to meet this burden.

47Except for the notes of Sergeant MacDonald, the only explanation provided was that the police administration deliberately destroyed the officers’ notes pertaining to a still open homicide investigation.

48The importance of these notes to an open murder investigation should have been obvious.

49I heard no evidence from any police representative or anyone else respecting the details of the policy for destruction at the times the notes were culled in the 1980s or early 1990s, including any evidence about the protocol to preserve notes for open files.

50The only evidence I heard from the officers around in the 1980s to the early 1990s was simply that they were directed by their superiors to turn in their notes and that the notes were subsequently destroyed.

51I acknowledge hearing evidence respecting police policy from 1992 forward that addressed the retention of notes for open files involving major crimes but this was not the protocol at the times the notes for this case were destroyed based on the testimony before me.

52The only evidence I heard respecting any efforts to locate the missing notes was provided by Detective Craig Smith who is the current officer in charge of the investigation. He testified to his unsuccessful efforts to locate the notes once he realized they were missing when he took carriage of this investigation in November, 2012, more than thirty-five years after the murder.

53I have no hesitation concluding that the deliberate destruction of these notes by the police administration constitutes unacceptable negligence. This would be my conclusion regardless of the prevailing police policy on retention.

54I come to a similar conclusion for the notes of Sergeant MacDonald. I had very little evidence pertaining to the loss of this officer’s notes. The only clear evidence I had was that this officer destroyed his own notes in what appears to be a fit of anger directed at his employer. I had no meaningful evidence as to when the notes were destroyed, as to any efforts to preserve the notes pertaining to this case or as to prevailing protocol directed to the retention of police notes. The importance of these notes should have been obvious to those in charge of the investigation leading up to the destruction of this officer’s notes. Given the absence of any adequate explanation, I have no difficulty in concluding that the Crown has failed to satisfy its onus of explaining the loss was other than through unacceptable negligence.

55There was no explanation whatsoever respecting the balance of the lost notes with the result that the Crown has failed to satisfy its onus of explaining the loss was other than through unacceptable negligence.

56I have also concluded that the loss of the audiotaped confession and subsequent videotaped recantation interview of Jack Laforge was the result of unacceptable negligence.

57The importance of the audiotaped confession to a murder would have been obvious, especially with consideration to the fact that the police arrested Mr. Laforge for the murder on the basis of this confession. Similarly, the importance of the recantation interview videotape would have been obvious, especially given that Mr. Laforge was released unconditionally by the police following this interview and the polygraph interview immediately following.

58There was, again, very little evidence about the loss of the audiotape and videotape.

59Detective Chapman conducted the videotaped interview of Mr. Laforge following arrest. Detective Chapman did testify at trial providing what I would describe as brief, summarized evidence respecting what Mr. Laforge said in the interview. Detective Chapman testified to having no knowledge of what happened to the videotape following the interview. He gave no evidence of efforts to preserve the video, that he at any time was aware the videotape was missing or related efforts to locate the missing videotape.

60The only other evidence respecting this lost evidence came from Detective Smith.

61Detective Smith reviewed the notes from now retired Officer Drinkwalter. Officer Drinkwalter appears to have worked alongside Detective Chapman. Officer Drinkwalter was not available to testify. However, Detective Smith reviewed and provided evidence based on Officer Drinkwalter’s notes and discussions Detective Smith had with this officer.

62Officer Drinkwalter obtained a copy of the audiotaped confession from the Hamilton Police in 1988. However, Officer Drinkwalter had no knowledge of the whereabouts of the audiotape (original or copy) or videotape. There was no evidence through the notes of Officer Drinkwalter respecting efforts to preserve the audiotape copy or videotape, respecting whether he was aware the audiotape (original or copy) or videotape were missing or any related efforts to locate the missing audiotape (original or copy) or videotape.

63Detective Smith was directed to a case exhibit list prepared by another officer in 2004. The list did not reference either the audiotape or videotape. This evidence alone tells me very little. Detective Smith could not testify that anyone realized the items were missing when the exhibit list was prepared or that any efforts were then made to locate these items.

64Detective Smith testified that he realized the audiotape and videotape were missing when he reviewed the case file in 2012, approximately twenty-four years after the items were created. He then made efforts to search for the items without success. This was the only evidence respecting efforts to locate the missing items.

65I had no evidence respecting the existing protocol or efforts made to preserve the audiotape and videotape in this open homicide investigation.

66The fact is that I was provided no evidence explaining the lost audiotape and videotape. As such, I have no difficulty concluding that the Crown has failed to meet its onus of establishing that these items were not lost due to unacceptable negligence.

67The last items of lost evidence are the occurrence reports for Mr. Laforge and Mr. Wright.

68The importance of the occurrence reports respecting Jack Laforge to this investigation should have been apparent by the time of his 1988 telephone confession to the murder of Mr. McAvella.

69The importance of the occurrence reports respecting Ronald Wright to this investigation would have been known in 2003 when members of the Halton police travelled to Alberta to interview him about his knowledge of the McAvella murder. The police at that time believed he might have information due to his relationship with Mr. Goro, who was by then a prime suspect. Surely the prospect of Mr. Wright being a material witness in a homicide investigation would have prompted the police to investigate his criminal background and preserve that information.

70Again, my only source of evidence respecting these now missing items came from Detective Smith. Detective Smith confirmed that an Occurrence Report is prepared when someone is arrested. He testified that he attempted to obtain these occurrence reports in the course of his file review in 2012 but none of the reports could then be located. I heard no evidence respecting the police protocol and efforts to preserve these reports. I heard no other evidence respecting efforts to obtain these occurrence reports prior to Detective Smith’s review of the file in 2012 some nine years after their importance should have been apparent to the police.

71I am again left with no explanation from the Crown as to how these occurrence reports were lost. In the absence of any reasonable explanation, the only finding I can make is that the Crown failed to meets its onus to explain the items were lost other than from unacceptable negligence.

72Given all of the above, I conclude that Mr. Goro’s section 7 Charter rights have been breached. I am now left to craft the appropriate remedy under Charter section 24(1).

Charter Section 24(1) Remedy

73I appreciate that a stay is the remedy of last resort to be granted only in rare cases where the prejudice to an accused cannot otherwise be remedied. The fundamental rationale for this is “because its effect is to deprive society of an adjudication on the merits.” (see: R. v. Sheng, 2010 ONCA 296 at para. 44).

74I am also mindful that this is the prosecution of a murder now forty years in the past where the loss of some evidence is perhaps less than surprising.

75My task is to consider the prejudice to Mr. Goro arising from the specific evidence lost in this case and determine whether there is a remedy less than a stay that will address that prejudice.

Prejudice

76I have considered the following in assessing the prejudice in this case:

a. The temporal breadth of the prejudice has to be considered. The bulk of the lost evidence and related prejudice commences with the initial attendance at the crime scene in 1976 flowing into the subsequent investigation through to the confession and recantation by Mr. Laforge in 1988. This is a period of some twelve years commencing with the review of the initial crime scene;

b. I have considered that the notes of thirteen officers were unavailable to Mr. Goro for this case. This is a large number on its face although I appreciate that the officers had varying degrees of involvement in this case;

c. I have considered that the lost notes would provide a comprehensive and contemporaneous record of the material details observed by each officer;

d. I have considered that the lost notes would provide a comprehensive and contemporaneous record of the statements of the witnesses, suspects and other persons interviewed in the course of the investigation, including Susan Kalanda and John Todd. Related to this, I have considered that there were no formal, written statements available for any witness, suspect or other person interviewed, including from Susan Kalanda, John Todd, or Jack Laforge, apart from what was recorded in the notes of the officers;

e. I have considered that limited occurrence reports were available as some form of alternative for the missing notes. In particular, there was an occurrence report authored by Detective Stonehill, a report authored by Detective MacDonald and Detective MacPherson, and the occurrence report of Detective Woods. I do note that one page of Detective Stonehill’s Occurrence Report was missing, where he noted officers going in and out of the initial crime scene among possibly other things;

f. I have considered that the photographs of the crime scene taken by Detective Watson were available as some form of alternative for the missing notes;

g. I have considered that some of the notes of Sergeant Banner, the other forensic officer who worked the crime scene with Detective Watson, were read into evidence;

h. I have considered that other officers who attended the initial crime scene and had some involvement in the investigation did testify, including Detective MacPherson who disregarded the order to surrender his notes and who, as a result, had his notes from that time available when he testified during this trial;

i. I have considered that the transcript for most of the telephone confession by Mr. Laforge was available as some form of alternative for the missing audiotape. I have also considered that Detective Chapman listened to the audiotaped recording before it was lost and compared it to the transcript for accuracy;

j. I have considered that Mr. Laforge participated in a very brief polygraph interview immediately following the videotaped interview with Detective Chapman and that Mr. Laforge was determined to have “passed” that test. The polygraph interview audiotape was disclosed to Mr. Goro’s counsel and available for this trial;

k. I have considered that several important witnesses were unavailable to testify during this trial by for health or other reasons, including Sergeant MacDonald (health), Detective Woods (deceased), Sergeant Banner (deceased), Susan Kalanda (deceased), John Todd (deceased) and Jack Laforge (deceased).

77There can be no doubt that some speculation is by necessity involved in the process of assessing the prejudice of evidence that has been lost. How could it be otherwise where we do not have available the very evidence that we are attempting to evaluate? As the court noted in R. v. Sheng at para. 46, “when evidence is lost, assessing prejudice is invariably problematic and, to some degree, speculative.”

78The most significant item of lost evidence is the missing videotape of Mr. Laforge’s recantation interview.

79As I noted previously, the Crown conceded that Mr. Laforge was a viable 3^rd party suspect to be presented to the jury. This was a reasonable and appropriate concession based on Mr. Laforge’s confession to the murder and his related arrest for that crime.

80In his confession, Mr. Laforge provided details of the murder. Mr. Laforge stated that he stabbed Mr. McAvella in the victim’s apartment because Mr. McAvella refused to pay Mr. Laforge for a sex act. Mr. Laforge stated that another person with three fingers was present in the apartment at that time but was too intoxicated to recall Mr. Laforge commiting the crime. Mr. Goro has three fingers remaining on one hand resulting from the loss of two fingers in an accident in his youth. According to his confession Mr. Laforge then wiped the knife and other parts of the scene clean. Mr. Laforge’s confession included other suggested crime details such as a description of the apartment building, Mr. McAvella’s unit, who may have witnessed the crime and one thumb print having been located at the scene.

81The confession details suggested an exculpatory explanation for the physical evidence of Mr. Goro’s presence in the deceased’s apartment proximate to the murder, namely the fingerprints and cigarette butts. Detective Chapman testified that Mr. Laforge only retreated from the authenticity of those confession details in response to the suggestion made by Detective Chapman during the videotaped interview, that Mr. Laforge gleaned all details about the murder from information released in the media.

82In light of the fact that Mr. Laforge confessed, the circumstances surrounding his recantation, and, in particular, the explanation Mr. Laforge offered as to how he came to have intimate knowledge of the details of the murder, or why he retreated from the exculpatory explanation he initially provided for the presence of Mr. Goro’s fingerprints and related evidence linking Mr. Goro to the crime scene in the deceased’s apartment, are vital to the 3^rd party suspect defence.

83Again, there was no transcript of the lost videotaped interview.

84The Crown submitted that the recording of the polygraph interview is an available substitute. I disagree for two reasons.

85The polygraph consisted of Mr. Laforge’s answers to three substantive questions. Two of the questions were similar asking whether Mr. Laforge on April 26, 1976 stabbed “that man in the apartment in Burlington?” Mr. Laforge answered “No” to both questions. This was followed by asking him “Right now are you lying in any way about the stabbing of that man on April 26, 1976?” Mr. Laforge answered “No”. The examiner concluded that Mr. Laforge was being truthful.

86The Crown’s submission to me respecting how Mr. Goro could put the polygraph into evidence was lacking. At the very least, there is some doubt as to whether the polygraph could be admitted.

87The relevance of the now lost videotape is, at least in part, the ability to review the interview towards assessing Mr. Laforge’s veracity and credibility. If I were to accede to the Crown argument then I would be accepting that the polygraph examination could act in substitution for the videotape to so assess Mr. Laforge. This proposition appears to run counter to the Supreme Court of Canada determination in R. v. Beland and Phillips (1984), 1987 CanLII 27 (SCC), 36 C.C.C. (3d) 481 (S.C.C.) that the admission of the polygraph test and, in particular, the results of that test into evidence is prohibited “where employed as a tool to determine or to test the credibility of witnesses.”

88Regardless of my concerns on admissibility, I fundamentally agree with the submission from Mr. Goro’s counsel that it is completely unacceptable to argue that Mr. Goro should be forced to put into evidence a clearly prejudicial polygraph test as an alternative to the lost recantation video. The result of the polygraph would be readily apparent to the jury given the evidence from Detective Chapman that Mr. Laforge was released unconditionally by the police following that examination. Mr. Goro would be left to place that evidence before the jury if I were to accede to the Crown’s submission.

89The argument that the polygraph examination could be a suitable substitute for the lost videotape is flawed beyond the obvious prejudice of having the result before the jury. The polygraph examination was brief consisting of a few questions yes or no answers only compared to the one-hour plus duration of the videotaped interview. The brevity and format of the polygraph examination offers, at best, a minimal opportunity to observe and assess Mr. Laforge’s demeanour. The polygraph examination says nothing about the conduct of the interviewer, Detective Chapman such as whether he was using leading or non-leading questions in the course of obtaining a recantation from Mr. Laforge. The polygraph examination says nothing about the explanation Mr. Laforge offered for confessing. The polygraph examination says nothing about the explanation Mr. Laforge provided as to how he learned the details of Mr. McAvella’s murder.

90In terms of the audiotape, I find there is some prejudice associated with its loss, as the jury is deprived of the opportunity to make first-hand observations of the Mr. Laforge’s demeanour during the confession.

91This loss is compounded by the loss of the videotaped recantation interview. It would have been very useful for the jury to have the opportunity to compare Mr. Laforge’s demeanour in the audio and video, as well as the conduct of the interviewer in the two interviews, when assessing which of the two conflicting statements was truthful.

92Instead, the jury was left with the one dimensional transcript of the telephone confession. The transcript is nothing more than the typed pages providing the trier with the words comprising Mr. Laforge’s confession. It offers none of the nuance that an audio recording would provide.

93I do not accept that the transcript provides a substitute for the lost audiotape in the circumstances of this case.

94In summary, not having the audiotaped confession and the videotape of the recantation interview presents a significant prejudice to Mr. Goro’s ability to make his defence and there was no meaningful substitute available.

95I have little difficulty in concluding that Mr. Goro would be prejudiced where the notes of thirteen officers were not available to him. It seems obvious for me to state that police notes are one of the foundations for any defence. The details in these notes are what counsel mine to bring forward a defence for an accused. Mr. Goro here lost the ability to actually use these notes in cross-examination, to otherwise challenge the Crown’s case against him and to map the conduct of his defense. In my view, this is actual prejudice that the existing occurrence reports and/or the notes and testimony of the officers, including those with notes cannot remedy.

96The evidence from the officers before me was clear that the police notes were intended to provide a contemporaneous record of all material information, including direct observations and anything said by persons interviewed. The officers told me that the details in the notes were intended specifically to refresh memory for future court testimony.

97The evidence before me was that the Occurrence Reports would include a lesser degree of detail and would be prepared subsequent to the notes. Obviously, I cannot state with any certainty the variance in time and detail between the notes and the occurrence reports. However, the actual prejudice lay in the fact of the loss to Mr. Goro of the contemporaneous record with greater details with the notes being unavailable.

98This is particularly prejudicial where Mr. Goro was left to challenge the testimony of officers and others trying to recollect details some four decades later. It seems an obvious statement that it would be extremely difficult for any witness to reliably recall all of the material details regarding events that took place 40 years ago even when having access to occurrence reports or photos to refresh memory. It seems to me very probable that the lost notes would have enhanced Mr. Goro’s ability to confirm or challenge these dated recollections.

99I am also of the view that the notes that were available from other officers do not act as substitutes for what was lost. Even where there is potential cross-over in observations or persons interviewed, Mr. Goro is prejudiced by not having the notes of each officer to challenge the whole of the Crown evidence and to otherwise bring his defence.

100I also appreciate how the photographs taken by Sergeant Banner and Detective Watson would be of assistance to witnesses in refreshing memory of the details for this case. However, there was no submission made to me, and I do not consider it true, that the photographs can replace the details, especially those pertaining to forensics, that would be expected in the lost police notes.

101In summary, Mr. Goro was prejudiced in his ability to defend the charge against him due to the lost notes. Specifically, he was unable to determine and challenge the accuracy both of the officers who testified about events going back 40 years without the benefit of their notes, such as Detectives Stonehill and Watson, and those who testified with the benefit of notes such as Detective MacPherson. He was obviously deprived respecting the officers whose notes were lost and who were not available to testify. The available occurrence reports and photos did reduce that prejudice but did not eliminate it.

102I also find that Mr. Goro suffered some prejudice from the loss of the occurrence reports respecting Mr. Laforge and Mr. Wright.

103As stated above, Mr. Laforge’s convictions included weapons related offences. The missing occurrence reports could potentially provide details of misconduct lending support to the argument that Mr. Laforge was the murderer in this case especially with consideration to the fact that Mr. McAvella was stabbed to death.

104Mr. Wright testified that Mr. Goro confessed to this murder during one of their social occasions. The case against Mr. Goro would essentially be made if Mr. Wright’s testimony was accepted. Clearly, the credibility of Mr. Wright is a fundamental issue.

105The missing occurrence reports respecting Mr. Wright’s six criminal convictions are potentially relevant to his credibility. Again, these were convictions for crimes of dishonesty, assaulting a police officer and obstructing police. Without them the trier is left only with Mr. Wright’s testimony minimizing his culpability in these crimes, which if believed would bolster his credibility. Mr. Wright’s convictions suggest that he committed the subject crimes. It seems very possible that the occurrence reports detailing his actions could be contrary to Mr. Wright’s minimized version of these events and thereby impact his overall credibility to Mr. Goro’s benefit.

106In summary, not having the occurrence reports presents a prejudice to Mr. Goro’s ability to make his defence and there was no substitute available.

Remedy

107With consideration to all of the above, I agree with counsel that the cumulative prejudice of the lost evidence to Mr. Goro’s ability to make full answer and defence can only be remedied by granting a stay. No lesser remedy will suffice given all of the evidence lost in this case, in particular, the loss of the videotape of Mr. Laforge’s police interview.

Balancing of Interests

108In coming to my conclusion that a stay should be granted, I have considered the strong public interest in having criminal matters determined on the merits, especially more serious charges as we have here.

109Further to the above, I have undertaken a balancing between the objective of preserving the integrity of the judicial system and society’s interest in having the murder charge against Mr. Goro decided on the merits.

110Candidly, it would be my preference that this case be determined by the twelve members of the jury who collectively sat through the considerable evidence heard during this trial. However, there is no uncertainty as to where this balancing directs me.

111A stay of proceedings is required here to preserve the integrity of our system of justice. Again, the volume and character of the lost evidence with related cumulative prejudice to Mr. Goro is simply too great to permit the case to be determined on its merits. The integrity interests that favour granting the stay are not displaced by society’s interest in a merit based adjudication of this very serious murder charge.

Alternative Remedies

112The Crown argued that a carefully constructed jury charge could adequately address any prejudice to Mr. Goro arising from the lost evidence. I cannot agree with that argument.

113The volume and character of the lost evidence with related cumulative prejudice to Mr. Goro is simply too significant to be remedied by a jury charge, especially with consideration to the prejudice flowing from the lost audio and video tapes. There is no jury charge that could restore trial fairness here.

114The Crown has not suggested any other alternative. This is not a case where other remedies such as an adjournment, exclusion of evidence, or recalling witnesses are viable alternatives. A stay is the only appropriate remedy.

Conclusion

115In conclusion, I am persuaded on a balance of probabilities that the cumulative prejudice of the lost police notes, the lost audiotaped confession, the lost videotaped interview, and the occurrence reports respecting Mr. Laforge and Mr. Wright has irreparably prejudiced Mr. Goro in his ability to make full answer and defence to this very serious charge. This is one of those rare but clear cases where a stay is the only appropriate remedy and I hereby order a stay of these proceedings under section 24(1) of the Charter.

Fitzpatrick J.