Court File and Parties

COURT FILE NO.: CRIMJ (F) 862/18 DATE: 20190102

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN I. Singh, for the Crown

- and -

CLAIRE GRAHAM and ROSLYN BLAKE M. Doyle, for Ms. Graham N. Kelsey, for Ms. Blake

HEARD: December 22 and 31, 2018, at Brampton

RULING ON CHARTER APPLICATION

André J.

[1] The applicants Claire Graham and Roslyn Blake bring an application for an order, pursuant to s. 7, 11(d) and 24(1) of the Charter of Rights and Freedoms, that the charge of fraud over $5,000 should be stayed on account of lost evidence. Specifically, they contend that the loss of a video-taped statement of the complainant to Peel Regional Police Force (PRPF), Detective Lusty, on November 9, 2010, has impaired their ability to make full answer and defence to the charge.

BACKGROUND FACTS

[2] On November 9, 2010, Charles Ocran, a real estate lawyer in Peel Region, gave a video-taped statement to Detectives Lusty and Wallace alleging that Ms. Graham, his law clerk, had fraudulently diverted a significant sum of money from his client trust account to a numbered company owned by Roslyn Blake, a friend of hers. He found out about the impugned acts after the Law Society of Upper Canada (LSUC), as it was then known, contacted him about complaints from a few of his clients. Mr. Ocran also provided a written statement to Det. Lusty in January 2011.

EVIDENCE ON THE VOIR DIRE

[3] In 2013 Cst. Sebastian Cuoco, a member of the PRPF, was asked by Cst. Vince Esposito to assist in the investigation of the accused. In November 2013, Cst. Stone placed the box with the file next to Cst. Cuoco’s files. In December 2014, Cst. Cuoco realized that the DVD and notes of the interview were not in the disclosure package he prepared. By then, both detectives Lusty and Wallace had retired. In June 2015, the officer sent messages to Detective Stone, inquiring if he had copies of the lost DVD and scribe notes. He received no reply.

[4] The missing interview never surfaced. In March 2017, Cst. Cuoco advised the Crown about the missing DVD and notes. The officer contacted the PRPF’s Central Records Office and asked if they had a master copy of the missing DVD. They did not.

[5] Cst. Cuoco explained that in 2010, the PRPF had no set policy for the preservation of video-taped statements. When a statement was recorded, an interviewing officer typically made copies of the recording and treated the origin as the master copy. The officer did not know whether Det. Lusty made copies of the recorded statement. Currently, all video statements are automatically recorded on a central data base.

[6] Cst. Esposito interviewed Mr. Ocran on July 16, 2013, while on July 31, 2013, Det. Stone interviewed Mr. Ocran.

[7] Cst. Cuoco tried to locate the missing video statement without success. He could not recall what specific steps he took to find it.

Cst. Vince Esposito

[8] Cst. Esposito was assigned by Det. Lusty on June 19, 2013 to take over the investigation. He reviewed the video statement which Det. Lusty had taken from Mr. Ocran. He recalled that the interview was approximately one hour long. However, he conceded in cross-examination that he testified during a March 2017 preliminary hearing that he had no idea how long the video had been. On July 2, 2013, Cst. Esposito gave the Ocran file which contained the original video statement, to Cst. Stone for the preparation of a production order, which Cst. Stone completed in November or December 2014. Cst. Esposito never saw the video statement again.

[9] Cst. Esposito spoke to Mr. Ocran on July 10, 2013 and interviewed him on July 16, 2013. The core complaint made by Mr. Ocran in his statements to the police and to the LSUC remained the same. The officer would not recall any “notable inconsistencies” between the video statements which Mr. Ocran gave to Det. Lusty and himself in 2010 and 2013 respectively.

[10] Mr. Ocran gave another statement to then Cst. Stone on July 31, 2013. He also provided his consent for a search of all his bank accounts.

[11] Cst. Esposito found out between December 2014 and June 2015 that the 2010 DVD statement and the “scribe notes” were missing. He had hoped that the missing statement was in Constable Stone’s possession.

[12] Cst. Esposito was asked at the preliminary hearing on March 13, 2017 about the missing video statement. He had no recollection of it; but testified in the voir dire that he had had a memory lapse. Following the preliminary hearing Cst. Esposito made further attempts to locate the missing video statement but was unsuccessful. He spoke to the clerk who handled disclosure but was advised that there was no copy of the video. He emailed then retired detectives Lusty and Wallace but got no response.

[13] Cst. Esposito never saw the DVD after he gave it to Cst. Stone for preparation of the production order. He knew that this officer handled the DVD because he saw him with his headphones listening to it.

[14] Cst. Esposito conceded that after he received the file from Det. Lusty in June 2013, he had an opportunity to make a copy of the DVD but did not. He could not recall anything Mr. Ocran said in his original police statement that would undermine his credibility. Neither could he recall if there was any discrepancy between Mr. Ocran’s original statement and the other that he gave.

Inspector Michael Stone

[15] This officer was tasked on July 24, 2013 to prepare a production order. He did a video-taped interview of Mr. Ocran on July 31, 2013. He located an interview conducted by Det. Lusty in the file. There were three pages of notes in the file but he could not understand them. He reviewed the video statement. He initially testified that it took him at least one day to review the DVD; he later said it could have taken as long as one week. He summarized the contents of the DVD in the production order he prepared.

[16] After reviewing the video statement, the officer filed it back in the same place that he had found it. He never saw it again. He assumed that he had been working with the working copy of the DVD.

[17] Asked about the protocol when recording a statement in 2010, Inspector Stone replied that the interviewing officer was required to “burn” two or three copies of the DVD during the interview. This was a written policy at the time. This was done to preserve the evidence. He did not know if Det. Lusty or the other officer involved in taking the statement, made any copies of the video.

[18] Inspector Stone left the Fraud Bureau on July 8, 2014. He did not recall when he found out about the missing DVD statement. After he found out about it, he searched his old case files and personal files but never located the video.

ANALYSIS

[19] The sole issue in this application is whether the loss of Mr. Ocran’s video statement to Det. Lusty on November 9, 2010 has violated section 7 of the Charter thereby resulting in a stay of the charge against the applicant.

The Law

[20] Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[21] Section 11(d) states that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[22] In R. v. Sheng, 2010 ONCA 296, at para. 31, the Ontario Court of Appeal noted that:

An accused’s right to disclosure of material that meets the Stinchcombe standard is a component of an accused’s right to make full answer and defence. In turn, an accused’s right to make full answer and defence is a principle of fundamental justice in s. 7 of the Charter. Therefore, a breach of the Crown’s duty of disclosure is a breach of an accused’s constitutional rights under s. 7.

[23] The Crown’s duty to disclose relevant evidence includes the obligation to preserve relevant evidence: Sheng, at para. 32. The Crown therefore has the obligation to explain why evidence is lost. Cases of lost evidence may fall into one of two categories: one where the Crown’s explanation is unsatisfactory or the Crown gives no explanation at all, and cases where the Crown’s explanation is satisfactory; see Sheng, at para. 33.

[24] Where the Crown has no explanation for the loss of the evidence or where the loss is the result of the Crown’s “unacceptable negligence”, then the Crown has breached the accused’s s. 7 Charter rights. The extent of the actual prejudice caused by the loss of the evidence will determine whether a stay of proceedings or some lesser remedy is appropriate: Sheng, at para. 34. Where the Crown has satisfactorily explained the loss of the evidence, it has met its disclosure obligation and accordingly, did not breach s. 7 of the Charter. However, where the accused can prove, on a balance of probabilities, that the loss of the evidence has given rise to exceptional circumstances and is so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial, then a stay of proceedings may be appropriate.

[25] In determining whether the Crown has satisfactorily explained the loss of evidence, the Supreme Court of Canada noted the following in R. v. La, [1997] 2 S.C.R. 680, at para. 21:

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

[26] In Sheng, at para. 46, the Court of Appeal noted the following:

[T]he respondent was not entitled to a stay merely because he was deprived of relevant evidence. To justify a stay the respondent had to show that the lost evidence prejudiced him in a substantial or material way.

[27] An applicant will be able to prove, on a balance of probabilities, that he or she has suffered actual prejudice justifying a stay of the proceedings where he or she demonstrates an inability to put forward his or her defence and not simply that the loss of the evidence makes putting forward the position more difficult: see R. v. Bradford (2001), 151 C.C.C. (3d) 363, at para. 8.

[28] The availability of other evidence to attack a complainant’s credibility is a critical consideration in assessing the degree of prejudice from lost evidence: see Sheng, at para. 47.

Application of the Law to the Facts

[29] There is no dispute that Det. Lusty conducted a video-taped interview of Mr. Ocran. Neither is there any dispute that this statement is relevant given that Mr. Ocran’s credibility is a central issue in this trial. Ms. Blake has testified that she believed that the cheques she received were from investors who had paid the money to Mr. Ocran who was her lawyer. Mr. Ocran denied having any connection with investors in Ms. Blake’s company.

Has the Crown satisfactorily explained the loss of Mr. Ocran’s 2010 video statement and the notes of Det. Wallace who monitored the recording of this statement?

[30] It appears that Det. Lusty did not adhere to the existing practice of making copies of Mr. Ocran’s video statement to preserve the evidence for disclosure. Cst. Cuoco testified that Det. Lusty’s failure to do this may have been because no one had been charged when the statement was taken. I cannot rely on this reason for Det. Lusty’s failure to make copies because the former officer had not given any explanation for his failure to copy the statement.

[31] Furthermore, Acting Inspector Stone testified that in 2010 there was a clear policy that any officer who took a video statement from a person was required to simultaneously “burn” two or three additional copies of the DVD statement. He retrieved a DVD from the file in 2013 and listened to it when he was preparing the production order. He assumed that this DVD was a copy of the DVD statement taken by Det. Lusty and therefore had no reason to make a copy of it.

[32] Cst. Esposito testified that the video statement was lost sometime in 2013 after he gave then Cst. Stone the file with the video statement. He testified that he saw Cst. Stone listening to it when he was preparing the production order. Cst. Stone corroborated Cst. Esposito’s testimony that he listened to the video recording of Mr. Ocran’s 2010 statement while he prepared the production order.

Should Cst. Esposito have made copies of the video statement after receiving it from Det. Lusty in 2013?

[33] In my view, he had no reason to do so. He had no knowledge that Det. Lusty had failed to make copies of the statement. Neither would he have known that the statement would go missing after he gave it to Cst. Stone.

[34] That said, the relevance of the statement increased after Cst. Esposito decided to prepare a production order to obtain financial records from various financial institutions. Once Cst. Stone relied on Mr. Ocran’s 2010 statement to draft such an order, the degree of care for the preservation of the statement increased. However, there is no evidence that any officer took any steps to preserve the statement. The evidence of Acting Inspector Stone, which I accept, raises a reasonable inference that contrary to the established policy, Det. Lusty did not make copies of Mr. Ocran’s statement in November 2010. There is no evidence from former Det. Lusty concerning his failure to preserve this evidence. To that extent, it cannot be said that the conduct of the police in preserving this evidence was reasonable.

[35] In my view, the constellation of the following facts support a conclusion that the police’s failure to preserve Mr. Ocran’s November 2010 statement constituted unacceptable negligence:

a) Detective Lusty’s failure to make copies of the statement; b) The absence of any explanation for Detective Lusty’s failure to preserve Mr. Ocran’s statement; c) The failure to preserve the evidence after Cst. Esposito’s decision to obtain a production order; and d) The disappearance of the DVD into thin air after Cst. Stone had placed it back into the file.

[36] Accordingly, I find that the Crown has breached the accused’s s. 7 Charter rights in the unexplained loss of Mr. Ocran’s 2010 video-taped statement to Det. Lusty.

Has the loss of Mr. Ocran’s video-taped statement given rise to exceptional circumstances and is so prejudicial to the rights to make full answer and defence that it impairs the applicants’ right to a fair trial?

[37] This application is being heard after hearing all of the evidence at trial in order to fully assess the degree of prejudice flowing from the lost evidence: see R. v. Fiddler, 2012 ONSC 2539, at para. 19; Sheng, at para. 65 and La, at para. 27.

[38] As noted in Sheng, to justify a stay of proceedings, the applicant has to show that the lost evidence prejudiced him or her in a substantial or material way. In my view, the court in Bradford imposes an even stricter test by stating that a stay is justified where an applicant demonstrates an inability to put forward his or her defence.

Have the applicants met either test for a stay of the proceedings?

[39] I find that they have failed to demonstrate that a stay of these proceedings is justified for the following reasons.

[40] First, it is a matter of sheer speculation that Mr. Ocran’s statement to Det. Lusty contains material inconsistencies when compared to the subsequent statements he gave to the police. Cst. Esposito testified that he did not believe there were any serious inconsistencies in that statement when compared to Mr. Ocran’s subsequent statements. However, I am unable to place much weight on his evidence to that effect.

[41] Second, the loss of the statement has not irreparably compromised the applicants’ ability to put forward their defence. To the contrary, counsel for the applicants’ cross-examined Mr. Ocran on his police statement, his LSUC complainant and on his preliminary hearing testimony. At best, the 2010 statement may have given counsel additional ammunition to cross-examine Mr. Ocran. However, that, in my view, does not meet the evidentiary threshold that justifies a conclusion that the lost evidence prejudiced either accused in a substantial or material way or rendered them unable to put forward their defence.

[42] This brings me to the third reason why the loss of the 2010 statement has not given rise to exceptional circumstances that justify a stay of proceedings. As noted in Sheng, at para. 47, the availability of other evidence to attack a complainant’s credibility is a critical consideration in assessing the degree of prejudice from lost evidence: see also Bradford, at paras. 6-8. The applicants received a considerable amount of disclosure including the following:

(1) Mr. Ocran’s statement to the LSUC which preceded his video-taped statement to Det. Lusty. (2) Mr. Ocran’s faxed letter to Det. Lusty on December 5, 2010. (3) Mr. Ocran’s video-taped statement to Cst. Esposito on July 16, 2013. (4) Mr. Ocran’s video statement to Cst. Stone on July 31, 2013. (5) A copy of the production order prepared by Cst. Stone which contains a summary of Mr. Ocran’s statement to Det. Lusty. (6) Copies of all the financial records obtained as a result of the production order. (7) A January 5, 2011 memo from Mr. Ocran to Det. Lusty.

[43] The applicants had this disclosure at their disposal to cross-examine Mr. Ocran on his LSUC complaint, his statement to Cst. Esposito, his testimony at the preliminary hearing and on the thirteen impugned cheques which are the subject of the charge against the applicants.

[44] As the Court of Appeal noted in Sheng, at para. 44:

A stay is granted rarely. It is a remedy of last resort that must meet the “clearest of cases” standard. It is an exceptional remedy because its effect is to deprive society of an adjudication on the merits. (see also R. v. O’Connor, [1995] S.C.J. No. 98 (SCC) at para. 82.)

[45] Ms. Blake’s counsel also submits that her client is significantly prejudiced because the jury has been deprived of an opportunity to see Mr. Ocran’s demeanour during the making of his 2010 statement. The Court of Appeal however, has emphasized the limited value of such evidence because it can be affected by many factors including the culture of a witness, stereotypical attitudes, and the artificiality of any pressures associated with a courtroom: see R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181, para. 85; R. v. Dyce, 2017 ONCA 123, at para. 11.

[46] In my view, the disclosure provided to the applicants significantly diminished any prejudice caused by the loss of Mr. Ocran’s 2010 statement to Det. Lusty.

CONCLUSION

[47] For the above reasons, I conclude that a stay of the proceedings is too drastic a remedy in this case. In my view, a direction to the jury that relevant evidence has been lost and that they may draw an adverse inference against the Crown for failing to preserve this evidence, is appropriate in this case.

André J.

Released: January 2, 2019