Court File and Parties

COURT FILE NO.: CR-371/17 DATE: 2020 07 03 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ikdeep Singh, for the Crown

- and -

ROSLYN BLAKE Nakita Kelsey, for Roslyn Blake

Heard: September 23, 2019

REASONS FOR DECISION

Dismissal of Application for Stay of Proceedings (Section 7 and 11(d) of the Charter)

Kumaranayake J.

[1] By a Notice of Application, dated May 22, 2019, Ms. Blake brought an Application for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (“the Charter”). Ms. Blake alleged that her ss. 7 and 11(d) Charter rights were breached on account of pre-charge delay and lost evidence. I shall refer to the s. 7 and 11(d) Application as ‘the Application.’

[2] The Application was heard on September 23, 2019. Counsel for Ms. Graham, the co-accused, did not participate in the argument of Ms. Blake’s Application.

[3] On September 25, 2019, I dismissed the Application, with written reasons to follow. These are those reasons.

BRIEF BACKGROUND

[4] Ms. Blake and her co-accused, Ms. Graham, were charged with fraud over $5,000. It was alleged that Ms. Graham and Ms. Blake perpetrated a complex fraud and misappropriated in excess of $2 million from the trust account of Charles Ocran, a lawyer who practiced real estate. Ms. Graham operated her own business as a law clerk. She worked exclusively for Mr. Ocran, although she was not his employee. It was alleged that, through a series of cheques, money flowed from Mr. Ocran’s trust account into a holding company owned by Ms. Blake. Then, it was alleged that the money was used to finance Rozz Entertainment, a banquet hall/nightclub. Ms. Blake and Ms. Graham were both directors of Rozz Entertainment.

[5] In the fall of 2010, Mr. Ocran was investigated by the Law Society of Upper Canada (“Law Society”), as it was then known. He provided to the Law Society screen shots of text messages that he exchanged with Ms. Graham between September 24, 2010 and November 6, 2010 and exchanged with Ms. Blake between October 1, 2010 and November 8, 2010.

[6] He also provided the police with a colour photocopy of these text messages. He testified that he filed his complaint with the police in November 2010.

[7] In this trial, Mr. Ocran testified that the screen shots accurately captured all of the text messages that were exchanged between himself and each of the accused. A copy of the screen shots of the text messages was entered as Trial Exhibit 10.

[8] As outlined below, Ms. Blake gave evidence that the screen shots of the text messages were incomplete and that by the time she was charged in 2014, she no longer had the cell phone that she had in 2010 and therefore, no longer had the text messages. Ms. Graham also testified at trial that the screen shots of the text messages provided by Mr. Ocran were not complete and that by the time she was charged in 2014, she no longer had the cell phone that she used in 2010.

[9] This was the second trial on this charge for Ms. Blake and Ms. Graham. The first trial was before André J. It was also a jury trial. A mistrial was declared on January 8, 2019. The reasons for the mistrial are not relevant to this Application.

[10] I only refer to the mistrial in the first trial because counsel for Ms. Blake and counsel for the Crown both referred to an application brought in the first trial by both accused for a stay of proceedings. That application was also based on ss. 7 and 11(d) of the Charter and the loss, by the police, of the first statement given by Mr. Ocran in November 2010. While André J. did find that their Charter rights had been breached, he did not grant a stay of proceedings: see R. v. Graham, 2019 ONSC 15.

[11] I also note that the Crown brought an Application to summarily dismiss Ms. Blake’s Application for non-compliance with the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I. 2012-7. The Crown’s Application was heard on September 17, and 18, 2019. On September 18, 2019, I dismissed the Crown’s Application and my reasons for doing so can be found at R. v. Blake, 2020 ONSC 4133.

MATERIALS RELIED UPON

[12] At the outset of the hearing, I confirmed with Ms. Kelsey and Mr. Singh what materials they were each relying on. Prior to the hearing date, counsel for the Crown indicated that he may rely also on materials filed in response to Ms. Blake’s 11(b) Application which had been heard by Harris J. in June 2019.

[13] The following material was before me:

1. Notice of Application, dated and filed on May 22, 2019;

2. Application Record filed on May 22, 2019 – Ms. Kelsey advised that she was only relying on Tab 4 which contained a copy of a production order;

3. Supplemental Application Record filed on June 5, 2019 – Ms. Kelsey had intended for Ms. Blake to adopt this affidavit. However, the affidavit had been signed by Ms. Blake but was not commissioned. Ms. Kelsey indicated that she would not rely on the affidavit.

4. Applicant’s factum, dated May 21, 2019, and filed on May 22, 2019;

5. Applicant’s revised factum, dated September 12, 2019, and filed on September 16, 2019;

6. Applicant’s Book of Authorities filed on September 16, 2019;

7. Respondent’s factum, dated September 22, 2019, and filed on September 23, 2019; and

8. Respondent’s Book of Authorities, filed on September 23, 2019.

POSITIONS OF THE PARTIES

(i) The Applicant (Ms. Blake)

[14] Ms. Blake’s position was that the investigation into the fraud began in 2010 and she was not charged until September 2014. She submitted that the delay in charging her was not reasonable and it impeded her ability to make full answer and defence.

[15] It was submitted that as a result of the delay in charging Ms. Blake, material evidence was lost:

a. Documentation which Ms. Blake kept at 200 Advance Blvd., Brampton which is where Rozz Entertainment was located. According to Ms. Blake, this documentation included documents that related to investor loans obtained to finance Rozz Entertainment (“the documentation”);

b. Ms. Blake’s cell phone communication between herself and Mr. Ocran (“cell phone communication”); and

c. The statement of Mr. Ocran that was provided to the police in November 2010 (“Mr. Ocran’s November 2010 statement”).

[16] Ms. Blake’s position was that the police unreasonably delayed in laying a charge against her and the fairness of the trial was affected because material evidence that would have been helpful to Ms. Blake at trial was lost. She asserted that her right to a fair trial had been prejudiced and that a stay of proceedings was the only appropriate remedy.

(ii) The Respondent (Crown)

[17] The Crown submitted that Ms. Blake had not established that the loss of the documentation, the cell phone communication, and Mr. Ocran’s November 2010 statement had prejudiced her in a substantive or material way such that Ms. Blake was not able to put forward her defence.

[18] The Crown’s position was that the Application should be dismissed. In the event I found there was a breach of Ms. Blake’s Charter rights, the Crown’s position was that a stay was not the appropriate remedy.

SUMMARY OF EVIDENCE

[19] In support of her Application, Ms. Blake gave evidence and she also called Officer Cuoco. It was also agreed that the evidence from the trial also applied to the Application. Further, a Statement of Agreed Facts was also filed.

(i) Agreed Statement of Facts, dated September 23, 2019

[20] The following facts were agreed to, as reproduced below:

1. Ms. Blake is charged that on or between the 1st day of June 2008 and the 31st day of December 2010 at the City of Brampton and elsewhere in the Province of Ontario, unlawfully did by deceit, falsehood or other fraudulent means defraud the public of a sum of money, of a value exceeding five thousand dollars, contrary to section 380(1)(a) of the Criminal Code of Canada.

2. Ms. Blake was arrested for the above-mentioned offence on September 9th 2014.

3. On Nov. 9th 2010 Charles Ocean provided a video taped statement to Detectives Lusty and Wallace.

4. On June 19th 2013, this investigation was assigned to Officer Esposito.

5. Officer Esposito conducted another interview of Mr. Ocran on July 16th 2013.

6. Mr. Ocran gave another statement to Cst. Stone on July 31st 2013.

7. On July 24th 2013 a police production order was prepared.

8. The interview and scribe of Charles Ocran conducted on Nov. 9th 2010 was misplaced by Peel Regional police sometime between December 2014 and June 2015.

9. The contents of all of Charles Ocran’s police interviews were summarized in the Police Production Order. This order was drafted by Constable Stone who reviewed all of Mr. Ocran’s interviews.

10. Charles Ocran testified during the preliminary hearing for this matter and at the first trial date. He was cross-examined at length by both defence counsel.

11. This Fraud investigation had voluminous disclosure. It included, but is not limited to, the following:

a. Mr. Ocran’s statement to LSUC (Law Society of Upper Canada);

b. Written statements provided by Mr. Ocran;

c. Two videotaped statements of Mr. Ocran;

d. The production order prepared by officer Stone and the financial records obtained as a result of the production order;

e. 5 reports made by Ruth Mercer in relation to allegations of Mortgage Fraud involving 5 different properties.

f. The TD bank disk which contains approximately 9000 bank documents from the period of 2008 to 2010. The documents are in relation to Charles Ocran; Roslyn Blake; Lloyd Sutherland (joint bank account); Julian Nurse; and the Ontario Numbered Company – 223767 Ontario Inc.

12. It is agreed that the court order attached was active as of Nov. 19th 2010. However, it is unclear how long this order was in effect for.

[21] It should be noted that the Order referred to in paragraph 12 of the Agreed Statement of Facts was an Order made in a civil proceeding that was commenced by Mr. Ocran in 2010 at the Superior Court of Justice in Brampton (Court File Number CV-10-4101-00). There were several named defendants in those proceedings: Grabasc Group Inc., Claire Graham, Earl Graham, Dessary Nurse a.k.a. Ann Nurse, Julian Nurse, Rosalyn Elizabeth Blake a.k.a. Rozz Blake, a.k.a. Rosayln Sutherland, a.k.a. Rozz Sutherland, a.k.a. Rozz Blake Sutherland, a.k.a. Janet Blake a.k.a. Janet Blake Sutherland, Llyod [sic] Sutherland, 2237367 Ontario Inc. and Rozz Entertainment Complex.

[22] This Order was issued and entered on November 19, 2010.

(ii) Ms. Blake

[23] Ms. Blake’s evidence was that she first learned that she was being investigated by the police in September 2014. She was contacted by Officer Esposito. Ms. Blake’s evidence was that she was told that he was investigating her, and she was interviewed by the police.

[24] Ms. Blake testified that the first time she learned about the lawsuit filed by Mr. Ocran was approximately at the end of 2010 or beginning of 2011. She was in Jamaica at that time. She maintained that she was never personally served with the documents in the civil action. However, she acknowledged that she did retain counsel to represent her in defending the civil action.

[25] With respect to the Order referred to in para. 12 of the Agreed Statement of Facts, she noted that she did not remember seeing that Order prior to giving evidence for this hearing. She also noted that her name was not spelled correctly. She also stated that she did not know if that Order was still in effect or not.

[26] With respect to the screen shots of text messages between Mr. Ocran and herself (Trial Exhibit 10), Ms. Blake testified that the first time she saw these text messages was during her first trial (before André J.), which she believed started in December 2018 and finished in January 2019.

[27] In the second trial, she testified that the screen shots were incomplete and there were missing messages that had been exchanged between Mr. Ocran and her. She was unable to provide the specific dates or specific content of messages which she stated were missing, but she was quite confident that the text messages that had been included in Trial Exhibit 10 were not complete.

[28] Ms. Blake stated that in or about October 2011, Rozz Entertainment had to close down, and that the landlord locked her out. Further, she also had to return her cell phone and all the phones for Rozz Entertainment to Bell Canada.

[29] Ms. Blake was clear in her recollection that she returned her cell phone prior to the landlord of 200 Advance Blvd. locking the doors to Rozz Entertainment.

[30] She outlined what documents were kept at 200 Advance Blvd, where Rozz Entertainment was located. The documents fell into different categories: documents which related to Rozz Entertainment, her client files from her work as a mortgage agent, and her personal files.

[31] The documents kept Rozz Entertainment included: invoices; copies of the business plan for Rozz Entertainment; accounting documentation which was kept in Leo Sinclair’s office; her files for her mortgage clients were kept in a filing cabinet in her office; the business plan which she said was taken to the bank in order to get loans for Rozz Entertainment; the business plan given to Winston Mattis that was to be given to investors; her journal which was in a desk drawer, her desktop computer; and her personal documents relating to properties that she either owned or had an interest in.

[32] Ms. Blake did not know if the accounting documentation was backed up onto a server. She explained that accounting was Mr. Sinclair’s responsibility. Mr. Sinclair was another director of Rozz Entertainment.

[33] The doors to Rozz Entertainment were locked by the landlord in October 2011. Ms. Blake stated that after the landlord locked the doors, she was unable to retrieve any of the documentation or any other items from the premises.

[34] In cross-examination by the Crown, Ms. Blake acknowledged that she was aware that in the civil action brought by Mr. Ocran, it was alleged that she had committed a fraud. She acknowledged that Mr. Ocran was suing her for millions of dollars. She acknowledged that she took the lawsuit seriously and that she hired a lawyer to defend herself.

[35] She indicated that she had not testified in the civil action. But Ms. Blake testified that in or about March 2011, she attended for an out of court examination relating to the civil action. The out of court examination was held in Mississauga. Mr. Ocran was also present for that out of court examination. She stated, however, that she was not examined on that day.

[36] Ms. Blake also recalled that she swore an affidavit in the civil action, but she did not remember seeing any other documents.

[37] She acknowledged that in 2011, she was aware that Mr. Ocran alleged that she had stolen money from him. She was aware of the allegation but denied it to be true.

[38] She also acknowledged in her cross-examination that she never asked Bell Canada for her phone back as she did not think she needed it.

[39] Ms. Blake testified that after the landlord locked the doors of Rozz Entertainment in October 2011, she attended at the courthouse to obtain some advise and was purportedly told that she would need to get a lawyer to file a lawsuit against the landlord, as corporations must be represent by lawyers. She was unable to identify whom she spoke with at the court house.

[40] Ms. Blake maintained that she did everything she could to try to retrieve items from 200 Advance Blvd. She stated that she called the landlord, whom she identified by name. She stated that she sent the landlord many emails, she begged him and asked him to permit her to get just her computer, but he refused her request.

(iii) Officer Cuoco

[41] Officer Cuoco was the Officer in Charge of this case at the time of the trial. He had been with the Peel Regional police for 18 years. From 2010 to 2017, he was assigned to the Fraud Bureau. From late 2012 to 2017, he was assigned to the Major Fraud Unit.

[42] In July 2013, he was asked to assist Officer Esposito with this case. He stated that when Officer Esposito got the file, preliminary meetings with witnesses and Mr. Ocran had been completed but there was no in-depth investigation. He assisted to re-interview Mr. Ocran and other witnesses.

[43] He noted that a production order was required as in July 2013, the only bank records in the file were those that had been provided by Mr. Ocran, which were not complete. He also recalled seeing colour copies of text messages that Mr. Ocran had provided during his interview with Det. Lusty.

[44] In July 2013, Officer Cuoco assisted Officer Esposito to re-interview Mr. Ocran. In November 2013, he also assisted with the interviews of two other complainants, Jose Martins (on November 4, 2013) and Leona Roache (on November 6, 2013).

[45] Officer Cuoco testified that he was also aware that Cst. Stone was asked to assist with a production order. Officer Cuoco was aware that there were two production orders obtained; one for the TD Bank and one for Meridien Credit Union, but the latter did not yield results that were significant to the investigation.

[46] With respect to the production order for the TD Bank, it generated five bankers’ boxes of documents. The results had to be analyzed and the relevant information extracted. He believed that this production order was submitted in December 2013.

[47] Following the analysis of the documents, the next major step was the arrest of Ms. Blake and Ms. Graham. Ms. Graham was arrested on August 19, 2014 and Ms. Blake was arrested on September 9, 2014.

[48] While he was in the Major Fraud Unit, he worked on a number of cases and was the Officer in Charge for four of those cases. He testified that, for each of those cases, the investigation took one year to 18 months on average to complete, and the monetary values involved were between $4-7 million. He did not include this case in one of the four cases for which he was the Officer in Charge.

[49] He had no knowledge of a search warrant or an information to obtain a search warrant for 200 Advance Blvd., Brampton, or for Mr. Ocran and Ms. Blake’s cell phones.

[50] He explained that usually there was a backlog of 18 months from the time that a matter was reported to the fraud intake officer to when it was assigned to an investigator. He did not know the specific backlog for this case but was aware that Mr. Ocran’s complaint was made in 2010 and that in 2012 there were still complaints being made.

[51] In cross-examination by counsel for the Crown, Officer Cuoco stated that this case was complex which was part of the reason it was assigned to the Major Fraud Unit. It was complex because it involved a lawyer and his trust account; several suspects, 9,000 pages of banking records and multiple interviews with multiple complainants. He described it as more complex than the average file that he worked on.

LAW AND ANALYSIS

[52] Ms. Blake asserted that her ss. 7 and 11(d) Charter rights had been breached and that the only remedy was for a stay of proceedings pursuant to s. 24(1) of the Charter.

[53] 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.

[54] Section 11(d) of the Charter provides that:

Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

[55] Section 24(1) of the Charter provides that:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[56] Ms. Blake has the onus to establish on a balance of probabilities that the state has breached her Charter rights: see R. v. L. (W.K.), 1991 CarswellBC 806, 1991 CarswellBC 919, [1991] 1 S.C.R. 1091, at para. 18.

[57] As stated in R. v. R. G., 2018 ONSC 130, at paras. 21-22:

[21] Accordingly, the onus rests upon the Applicant to establish on a balance of probabilities that: (a) pre-charge delay has resulted in actual prejudice to his right to fair trial; or (b) the pre-charge delay involves Crown conduct that is egregious and seriously compromises the integrity of the judicial system.

[22] In the absence of any evidence of bad faith or ulterior motive, there is no basis for shifting the burden to the Crown to explain the investigative and prosecutorial processes. To do so would be to effectively impose a judicially created limitation period, something that has long been held to be inappropriate. [Citations omitted].

[58] Judicial scrutiny of the efficiency of the investigation is not required or appropriate: see R. v. Hunt, 2016 NLCA 61, at para. 104, aff’d 2017 SCC 25.

[59] As stated by the Supreme Court of Canada in R. v L. (W.K), it is not enough to simply show that there was delay:

21 Delay in charging and prosecuting an individual cannot, without more, justify staying the proceedings as an abuse of process at common law. In R. v. Rourke, [1978] 1 S.C.R. 1021, 38 C.R.N.S. 268, [1977] 5 W.W.R. 487, 35 C.C.C. (2d) 129, 76 D.L.R. (3d) 193, 16 N.R. 181, Laskin C.J.C. (with whom the majority agreed on this point) stated that (at pp. 1040-41):

Absent any contention that the delay in apprehending the accused had some ulterior purpose, courts are in no position to tell the police that they did not proceed expeditiously enough with their investigation, and then impose a sanction of a stay when prosecution is initiated. The time lapse between the commission of an offence and the laying of a charge following apprehension of an accused cannot be monitored by Courts by fitting investigations into a standard mould or moulds. Witnesses and evidence may disappear in the short run as well as in the long, and the accused too may have to be sought for a long or short period of time. Subject to such controls as are prescribed by the Criminal Code, prosecutions initiated a lengthy period after the alleged commission of an offence must be left to take their course and to be dealt with by the Court on the evidence, which judges are entitled to weigh for cogency as well as credibility. The Court can call for an explanation of any untoward delay in prosecution and may be in a position, accordingly, to assess the weight of some of the evidence.

22 Does the Charter now insulate accused persons from prosecution solely on the basis of the time that has passed between the commission of the offence and the laying of the charge? In my view, it does not.

23 Staying proceedings based on the mere passage of time would be the equivalent of imposing a judicially created limitation period for a criminal offence. In Canada, except in rare circumstances, there are no limitation periods in criminal law. The comments of Laskin C.J.C. in Rourke are equally applicable under the Charter.

24 Sections 7 and 11(d) of the Charter protect, among other things, an individual's right to a fair trial. The fairness of a trial is not, however, automatically undermined by even a lengthy pre-charge delay. Indeed, a delay may operate to the advantage of the accused, since Crown witnesses may forget or disappear. The comments of Lamer J. (as he then was) in R. v. Mills, supra, at p. 945, are apposite:

Pre-charge delay is relevant under ss. 7 and 11(d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial. [emphasis added]

Courts cannot, therefore, assess the fairness of a particular trial without considering the particular circumstances of the case. An accused's rights are not infringed solely because a lengthy delay is apparent on the face of the indictment.

[60] Ms. Blake must demonstrate actual prejudice. Actual prejudice has been held to mean that there was an inability to put forward a defence because of lost evidence and not to mean that it was harder to put forward a defence. The Court of Appeal for Ontario explained in R. v. Bradford, [2001] O.J. No. 107, 52 O.R. (3d) 257, (Ont. C.A.):

[6] In assessing the prejudice to the accused's right to make full answer and defence as secured by s. 7 of the Charter, it is important to bear in mind that the accused is entitled to a trial that is fundamentally fair and not the fairest of all possible trials. As stated by McLachlin J. in O'Connor, supra, at p. 517 S.C.R., pp. 78-79 C.C.C.:

. . . the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer, [1995] 3 S.C.R. 562. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.

[7] In a similar vein, Justices McLachlin and Iacobucci commented in R. v. Mills, [1999] 3 S.C.R. 668 at p. 718, 75 Alta. L.R. (3d) 1, that fundamental justice embraces more than the rights of the accused and that the assessment concerning a fair trial must not only be made from the point of view of the accused but the community and the complainant. The fact that an accused is deprived of relevant information does not mean that the accused's right to make full answer and defence is automatically breached. [See Note 1 at end of document] Actual prejudice must be established: Mills, supra, pp. 719-20, citing R. v. La, [1997] 2 S.C.R. 680 at p. 693, 116 C.C.C. (3d) 97.

[8] 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. For example, in B. (F.C.), supra, the court held that where the complainant's signed statement was lost, but a typed transcription that was probably accurate existed, the trial judge erred in entering a stay of proceedings. In R. v. D. (J.), a judgment of the Ontario Court of Appeal, delivered May 30, 1996, [1996] O.J. No. 1907, although the complainant's statement was lost, the officer's notes were available, and the court held that it was speculative whether there were any inconsistencies between the complainant's statement and the officer's notes.

[61] If Ms. Blake established that there was a breach of her Charter rights then next step would be to determine if a stay of proceedings was the appropriate remedy.

[62] The law is clear that a stay should be granted in the clearest of cases, as stated in R. v. O’Connor at para 82:

It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

[63] I am also guided by the Court of Appeal for Ontario in R. v. Sheng, 2010 ONCA 296:

[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.

[45] Was the trial judge’s finding that the lost evidence was so prejudicial that it could only be remedied by a stay a reasonable finding? The answer to that question turns on the extent of the prejudice to the respondent from the loss of the evidence, and the availability of other remedies short of a stay to address any prejudice.

[46] When evidence is lost, assessing prejudice is invariably problematic and, to some degree, speculative. However, the 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. The trial judge concluded that the lost evidence would assist the respondent in a material way:

There is an air of reality to the claim that the lost evidence would assist the accused in a material way. The accused was prejudiced by the loss of the evidence and was prevented from making full answer and defence.

[47] I agree that the lost evidence could have assisted the respondent in attacking the credibility of the complainants. However, I do not agree that the trial judge’s conclusion justifies a stay because, in reaching that conclusion, he does not address the impact of the lost evidence in the light of other evidence available to the defence to challenge the credibility of J.H. and T.H. In La, Sopinka J. wrote that the availability of other evidence to attack a complainant’s credibility is a critical consideration in assessing the degree of prejudice from lost evidence.

Discussion

[64] Ms. Blake did not allege that the claimed pre-charge delay involved Crown conduct that was egregious and compromised the integrity of the judicial system. There was no evidence of bad faith or ulterior motive by the Crown or the police. Therefore, Ms. Blake had the onus to prove on a balance of probabilities that the pre-charge delay resulted in actual prejudice to her right to a fair trial. I was not satisfied that Ms. Blake met her onus.

[65] Ms. Blake’s position was that she had suffered actual prejudice because she was not charged earlier that September 2014. It was submitted that had she been charged earlier, she would have preserved her text messages. Further, she claimed that as a result of this pre-charge delay, she suffered actual prejudice because the documentation kept at 200 Advance Blvd. and the November 2010 statement of Mr. Ocran were lost.

[66] Ms. Blake’s position was that she was prejudiced as a result of the pre-charge delay presumed that she could have been charged earlier than September 9, 2014. There were two difficulties with this presumption.

[67] First, it was not for the court to direct when the police should lay charges. It was for the police to determine when the investigation was completed and when the police were satisfied that the accused should be charged.

[68] Second, based on the record before me, there was no evidence to suggest that prior to September 2014, the investigation was completed or that the police were in a position to charge Ms. Blake, but did not do so for some unknown reason.

[69] Ms. Blake did not provide evidence from Det. Lusty, Det. Wallace or Officer Esposito whose involvement pre-dated Officer Cuoco’s involvement in this case. Ms. Blake’s claim of pre-charge delay must be assessed in the context of Officer Cuoco’s evidence that this was a complex fraud investigation that was more complex than other cases that he had been involved in; that although Mr. Ocran made his complaint in November 2010, complaints from other people were still being received in 2012; and that based on his experience, it could take up to 18 months to complete a fraud investigation.

[70] I was not satisfied that Ms. Blake had demonstrated that the police investigation was completed, and the police were in a position to charge her any earlier than when she was charged. Therefore, I was not satisfied that she established there was pre-charge delay that affected her right to a fair trial.

[71] It was submitted that it would have been helpful for Ms. Blake’s defence if she had her cell phone communications; the documentation that had been kept at 200 Advance Blvd.; and the November 2010 statement of Mr. Ocran. While it may have been helpful, the absence of this evidence did not preclude or prevent her from presenting her defence. It may have made it more difficult, but she did present her defence.

[72] Ms. Blake asked the Court to accept that she did not realize that she needed those text messages until her first trial for this charge. Similarly, Ms. Blake asked the court to accept that it was not until after she was charged that she became aware that she needed the documentation that had been locked in Rozz Entertainment. Ms. Blake’s position was that she was prejudiced because of the purported pre-trial delay. She maintained that had she been charged earlier or known that she was under investigation, she would have taken steps to preserve text messages that were exchanged between Mr. Ocran and herself. I was not persuaded by this argument.

[73] During this trial, Ms. Blake testified about why she believed that the text messages produced by Mr. Ocran were incomplete. She also testified that the documentation at 200 Advance Blvd. would support the testimony that she gave that the financing of Rozz Entertainment was obtained through private investors. She outlined in detail that Winston Mattis (a Crown witness) and Mr. Ocran were involved in securing private investors; how the investor funds changed hands and ultimately financed Rozz Entertainment. Both Winston Mattis and Mr. Ocran strenuously denied having any role in securing private loans. (Ms. Kelsey is a member of Mattis Law, which has no connection or relation to Winston Mattis. I am referring to Winston Mattis by first and last name to alleviate any confusion or concern).

[74] Both Mr. Ocran and Winston Mattis were subjected to vigorous cross-examination by counsel for Ms. Blake and Ms. Graham on all aspects of their respective evidence.

[75] Ms. Blake readily acknowledged being aware by early 2011 of the civil action brought by Mr. Ocran and that it was alleged that she had defrauded him, and he was suing her for millions of dollars. Further, in March 2011, she attended for an out of court examination for the civil action, that was some seven months prior to returning her cell phone to Bell Canada and being locked out of 200 Advance Blvd.

[76] There was no evidence in the record before me of any attempt by Ms. Blake to retrieve her cell phone records once she became aware that she needed them to assist with her defence in the criminal matter. In fact, she acknowledged that she had never tried to contact Bell Canada after returning her cell phone.

[77] She gave a general statement that she tried to convince the landlord of 200 Advance Blvd. to permit her to retrieve items from the premises. She did not produce any of the many emails that she testified she sent to the landlord.

[78] The credibility of Winston Matts, Mr. Ocran and both accused were issues for the triers of fact, the jury, to assess in the context of all of the evidence presented in this trial.

[79] There is no dispute that the November 2010 statement of Mr. Ocran existed but was lost by the police. An Agreed Statement of Facts was filed as Trial Exhibit 21. There was no similar agreement that about the existence of the documentation that Ms. Blake said was locked in at 200 Advance Blvd.

[80] Unlike the statement of Mr. Ocran, Ms. Blake’s cell phone communications and the documentation at 200 Advance Blvd. were never in the possession of the police or the Crown. It was in the possession of third parties. How can the state lose evidence that it never possessed?

[81] It was submitted on behalf of Ms. Blake that the police should have obtained a search warrant for 200 Advance Blvd., and the cell phone records of Mr. Ocran and Ms. Blake as this would have preserved evidence which Ms. Blake claimed was lost. I did not accept this argument. As set out R. v. Darwish, 2010 ONCA 124, the Court of Appeal for Ontario held:

[28] The trial judge held that the constitutional right to make full answer and defence includes the right to have the prosecution investigate any defences that are "not fanciful or speculative". On this approach, the accused is constitutionally entitled to have the police pursue a line of investigation if the defence can show that there is a realistic possibility that pursuing that investigation will yield information that could assist the accused. This formulation of the right to make full answer and defence goes far beyond any description of that right previously recognized in the case law. It is unworkable in practice. Further, it is inconsistent with the philosophy underlying the criminal justice system. [page 587]

[29] An accused does not have a free-standing constitutional right to an adequate investigation of the charges against him or her: R. v. Barnes, 2009 ONCA 432. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in and of themselves constitute a denial of the right to make full answer and defence.

[30] An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target …

[82] In their first trial before André J., Ms. Blake and Ms. Graham brought a s. 7 application based on lost evidence (Mr. Ocran’s November 2010 statement). By his ruling, dated January 2, 2019, André J. found that the Crown had breached Ms. Blake and Ms. Graham’s s. 7 Charter rights “in the unexplained loss of Mr. Ocran’s 2010 videotaped statement to Det. Lusty”: see R. v. Graham, at para. 36.

[83] However, André J. declined to grant a stay of the proceedings for either Ms. Blake or Ms. Graham. He found that neither had demonstrated that a stay of the proceedings was warranted. Further, he held that a stay of proceedings was “too drastic a remedy in this case” and that the appropriate remedy was an instruction “to the jury that relevant evidence has been lost and that they may draw an adverse inference against the Crown for filing to preserve this evidence”: see R. v. Graham, at paras. 39 and 47.

[84] On behalf of Ms. Blake, Ms. Kelsey argues that because of the purported pre-charge delay, Ms. Blake was prejudiced as Mr. Ocran’s first statement to police was lost. Ms. Kelsey made it clear that she was not attempting to re-litigate the ruling of André J.

[85] Based on the record before me, Ms. Blake did not establish the how purported pre-charge delay resulted in the loss of Mr. Ocran’s statement of November 2010. André J. found that the statement was lost as a result of Det. Lusty’s failure to adhere to the internal police policy and practice of making multiple copies of the statement at the time it was taken: see R. v. Graham, at para. 30.

CONCLUSION

[86] For the reasons outlined above, I was not satisfied that Ms. Blake had discharged her onus and demonstrated that either of her ss. 7 or 11(d) Charter rights were breached as a result of pre-charge delay. I was not satisfied that she had established that there was pre-charge delay that affected her right to a fair trial or that she had been unable to present her defence. Therefore, I was not satisfied on a balance of probabilities that the Crown had breached Ms. Blake’s ss. 7 and 11(d) Charter rights.

[87] Even if Ms. Blake had met her onus and established a breach of her Charter Rights, I was not satisfied that this was the clearest of cases which would warrant a stay.

[88] Therefore, Ms. Blake’s Application was dismissed.

Kumaranayake J. Released: July 3, 2020