Court File and Parties
COURT FILE #: CR-15-30000020-0000 DATE: 20170418 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Justin Wallace Defendant
Counsel: Beverley Olesko, for the Crown Bella Petrouchinova, for the Defendant
HEARD: April 14, 2017.
McWatt, J.
LOST EVIDENCE AND CHARTER RULINGS
Lost Evidence (Sections 7 and 24(1) of the [Canadian Charter of Rights and Freedoms](https://laws-lois.justice.gc.ca/eng/const/page-15.html))
[1] Justin Wallace is charged with four criminal incidents:
- robbery with a firearm of a 55 year old complainant on October 10, 2012;
- sexual assault, sexual interference, invitation to sexual touching, wearing a disguise, and robbery with a firearm of a 15 year old complainant on October 14, 2012;
- robbery with a firearm of a 16 year old complainant on October 25, 2012; and
- carrying a concealed weapon and weapons dangerous (a pellet gun) on November 15, 2012.
[2] The preliminary inquiry was heard in December, 2014 in the Ontario Court of Justice at 1911 Eglinton Avenue East in different court rooms over seven days. Counsel for the applicant conducted the hearing and all cross-examinations.
[3] The examination in chief of one of the three complainants, O.H., was conducted on December 10, 2014. The cross-examination of this complainant took place on December 11, 2014 in court room 409. All of the complainant’s testimony was received in a child-friendly courtroom. A court reporter was present and there was no indication on that day that there was any issue with the recording of the complaint’s evidence.
[4] All transcripts subsequently ordered by the defence were produced except that of O. H.. In a letter sent to counsel from court staff, counsel was advised that the testimony from the entire court day on which the cross-examination took place was not available to be transcribed. There is no evidence on this motion whether the examination-in-chief testimony suffered the same fate.
[5] This motion requesting a stay of proceedings pursuant to ss. 7 and 24(1) of the Charter was commenced by the applicant as a result.
[6] Prior to the trial, the Crown ordered the audio tape of O.H.’s testimony. The Crown also made the audio tape available for review by the applicant’s counsel. The Crown then returned the audio tape to the court staff to be transcribed. As a result of court staff reiterating that they could not transcribe the tape, the Crown sent the audio tape to an outside transcription service which prepared and swore to the fact that the document they were able to produce was a true and accurate transcript of the cross-examination in question. Counsel was able to use the transcript to cross-examine O.H. in this trial.
[7] The applicant still maintains that highly relevant parts of the cross-examination testimony are lost due to the numerous “[indiscernible]” indications in the transcript where parts of the complainant’s testimony was not able to be understood for the purpose of transcription. Mr. Wallace’s fair trial rights have been “crippled by the loss of this critical evidence”. While the applicant is not alleging that this loss was the result of any intentional destruction of evidence, he asserts that his right to present a full answer and defence cannot now be accomplished since his defence was built entirely on the reliance on this crucial record.
[8] The applicant has varied his position from requesting a stay of proceedings as being the only remedy in this case. He now maintains that I should strike the complainant’s testimony from the evidence to be considered by me in this case as a result of any breach. He has provided no legal authority or case law to justify this procedure.
[9] The Crown submits that there has been no Charter breach in Mr. Wallace’s case, citing R. v. J.P., [2009] O.J. No. 5169 (C.A). In that case, the Crown appealed an order staying charges against JP in connection with alleged sexual offences perpetrated against his spouse’s daughter. The daughter was between 12 and 16 years old when the offences were alleged to have taken place. JP was committed after a preliminary inquiry on charges that he sexually assaulted the complainant on eight separate occasions. At trial, he argued that he could not make full answer and defence because portions of the complainant’s evidence from the preliminary inquiry had been lost as a result of a defect in one of the tapes used to record her evidence. The trial judge found that the loss of evidence was caused by “unacceptable negligence” on the part of the Crown and imposed a stay of the proceedings.
[10] The Ontario Court of Appeal overturned the trial judge’s ruling, finding that he had not approached the s. 7 issue as he should have, which skewed his analysis and conclusion. The Court found that the defect which resulted in the loss of the audio tape was not attributable to “unacceptable negligence” on the part of the Crown. It found that the respondent had failed to establish a breach of his right to make full answer and defence pursuant to s. 7 of the Charter simply because the transcript was “likely relevant and material” evidence which impacted on the credibility of the complainant.
[11] The court cited factors in the trial which mitigated against the exceptional remedy of a stay of the proceedings, including the fact that the complainant was available at the trial to testify; the respondent had full disclosure of the Crown’s case including the complainant’s prior video-taped statement which could be used for cross-examination; there was no suggestion that the complainant’s testimony at the preliminary inquiry differed markedly or at all from the information she provided in her video-taped statement; and notes were taken of the complainant’s evidence at the preliminary inquiry and to the extent that significant inconsistencies in her trial testimony were alleged, other means could potentially be used to explore them, including calling persons who were present at the preliminary hearing and heard the complainant testify.
[12] In this matter, the defence has conceded that there has been no intentional destruction of the evidence in question. In fact, but for undiscernible portions of the complainant’s testimony in the preliminary inquiry cross-examination, the majority of the transcript was available to the applicant for use during this trial.
[13] The application is dismissed. Evidence taken at a preliminary inquiry is not evidence in the possession of the Crown and there is no duty for the Crown to disclose it. In this case, the Crown made somewhat successful attempts to produce as much as possible of O.H.’s testimony for the purposes of cross-examination, which the applicant used for two days of cross-examination of the complainant in this trial.
[14] The Crown has met its duty of explaining the circumstances of the loss of any missing evidence. In order to make out a breach of s. 7 of the Charter on the ground of lost evidence, “the accused must establish actual prejudice to his or her right to make full answer and defence.” (J.P. at para. 7).
[15] Applicant’s counsel submits that she has no notes or memory of the preliminary inquiry cross-examination which produced the “crucial” evidence Mr. Wallace relies on to make full answer and defence. Therefore, there is no evidence on the motion that there is “crucial evidence” the applicant relies on that is materially different from or conflicted with O.H.’s statement to the first officer or the nurse preparing the “rape kit” who interviewed her immediately after the offences, the two videotaped statements the complainant has provided to the police, her evidence in-chief or cross-examination at the preliminary inquiry and her evidence at this trial. The applicant has not asked for the Crown’s notes of the “lost” cross-examination nor has he examined the audio tape of the cross-examination of the complainant.
[16] There is no basis to conclude that the applicant cannot receive a fair trial on account of the undiscernible answers in the cross-examination transcript of O.H. And, as the Crown has pointed out, many of the answers of the complainant, suggested by Mr. Wallace to be “lost”, are apparent from the context of the questions and answers which are transcribed before and after the answers which were not able to be transcribed.
The Sections 8, 9, 10(a), 10(b) and 24(2) Charter Application
[17] The applicant’ second motion asks that the BB gun, found in a gym bag next to him on a park bench on the evening of November 15, 2012, be excluded from the evidence in this trial.
[18] Mr. Wallace testified that he was not smoking marijuana prior to being approached by the officers, but was detained on that pretext around 9:32 p.m. The officers questioned him about why he was alone in the park and what his criminal antecedents were. He maintains that the officers did not question him about whether he had been smoking marijuana, which was the reason they were detaining him. Therefore, I should not accept that they had reasonable grounds to arrest him and search him.
[19] The evidence on the trial, however, established that the officers believed the applicant had been smoking marijuana because they had followed the smell of burnt marijuana to find him in the park. Their evidence is cogent. The park was dark and the officers could have gone in a different direction but for the smell of the marijuana which led them directly to Mr. Wallace.
[20] The applicant submits that the officers never told him he was under arrest for possession of marijuana and conducted an illegal search of his bag. They did not provide him with his rights to counsel until 27 minutes after they had detained him and there is no reasonable explanation for it.
[21] The applicant was not arbitrarily detained. The application is dismissed for the following reasons.
[22] First, the application is fundamentally grounded on credibility findings. Although the applicant has no criminal record, his evidence did not assist in my finding, on a balance of probabilities, that there were Charter breaches by the police in this case. There was no evidence of any physical or psychological compulsion or detention by the police of the applicant. He was alone in the park in the dark. They approached him from either side of the bench on which he was sitting. The applicant testified that he did not consider leaving the area and answered the officers’ questions because of how he felt he should respond to the police.
[23] He applicant asks me to find that the police were not credible witnesses because they were, in fact, investigating the robberies and sexual assault that had taken place in the area the month prior. He asks me to find that they made up the evidence of smelling marijuana in order to approach and question him. As I have noted, their evidence about the smell of burnt marijuana, that led them to the applicant, was cogent and reliable. I do accept their evidence. It was not undermined in any way on cross-examination nor was it undermined by the applicant’s evidence on the same points. It was reasonable in the circumstances. The area was pitch black according to the police and they only found the applicant by following the smell of marijuana that was drifting their way as they drove along a bike\walking path in a ravine setting. The police testified they could have gone right along the path, but instead turned left to follow the smell and went up a hill where they, with the assistance of headlights on their vehicle and a hand held torch light, first caught sight of the Mr. Wallace. Mr. Wallace sat perfectly still as the police approached. At his feet was a baggy with traces of marijuana. It was entirely reasonable, in the circumstances of the officers’ investigation of the robberies and sexual assault the month before, and the evidence of recent possession of marijuana, for the officers to speak to Mr. Wallace.
[24] The applicant denied that he was arrested for possessing the marijuana remnants at his feet. He denied that he was smoking marijuana, but could not remember if he smoked marijuana the nights before or sometime previous. I do not accept his evidence. It was tailored to the purpose of pressing his application. Officer Alvarez testified that he arrested the applicant when he saw the baggy with the traces of what he believed to be marijuana at the applicant’s feet. That and the smell of burned marijuana that led the two officers to the applicant were the grounds for his arrest and the search incidental to the arrest. The fact that Mr. Wallace was told by police of his arrest for possession of marijuana is supported by the fact that, he was placed in the scout car and he was searched again after the officers discovered the pellet gun in the bag. That find makes sense of the second search of the applicant which turned up a flashlight on his person.
[25] The evidence of the officers is reliable and supports the factual findings that they followed the smell of burned marijuana in the dark to where the applicant was sitting in the park. After he was arrested for possession of marijuana in the baggy at his feet, he was searched and placed in the police vehicle by Officer Alvarez. A subsequent search of the applicant’s bag resulted in the finding of the BB gun. A further search of the applicant was undertaken by police as a result.
[26] The fact that Mr. Wallace was not given his rights to counsel until 27 minutes after his arrest has no practical significance in the circumstances of this case as he was in the back of a police vehicle as the police waited for back up assistance from other officers and were unable, in any event, to provide him with phone access and privacy to call his lawyer. Once taken back to the police station, Mr. Wallace was afforded the right to call his lawyer and duty counsel. He gave no statement which counsel has asked to have excluded in this case.
[27] In all the circumstances, there was no detention. There was no Charter breach.
[28] Both applications are dismissed for these reasons.