ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-19-42-MO
DATE: 2021-06-08
B E T W E E N:
HER MAJESTY THE QUEEN
P. Keen, for the Crown
- and -
ANDREW SCHARDT
R. Wood, for the Defendant
Accused
HEARD: December 18, 2020 Via Zoom – decision delivered orally April 23, 2021
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Madam Justice T. Nieckarz
REASONS ON APPLICATIONS
OVERVIEW:
[1] The Accused stood charged with five counts of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c.C-46. Each count pertained to a different complainant.
[2] The Defence brought two separate applications:
a. An application pursuant to s. 591(3) of the Criminal Code, seeking to sever counts 2, 3, and 5 and have them tried separately, leaving counts 1 and 4 to be tried together; and
b. An application pursuant s. 7 and s. 24(1) of the Canadian Charter of Rights and Freedoms, seeking to have count 5 on the indictment stayed on account of lost evidence.
[3] The Crown consented to the severance application. The Crown and Defence resolved counts 1 and 2. This leaves counts 3, 4, and 5 to each proceed separately.
[4] In light of the agreement reached between counsel, this decision pertains only to the lost evidence Charter application.
[5] A.A., the complainant under count #5, alleges that the Accused sexually assaulted her in the early hours of the morning of July 23, 2011. She reported the allegations to police on July 28, 2011. She then gave either two or three separate videotaped interviews to police, during which she recounted the events of July 23, 2011. She also provided her unwashed clothing from the night of the alleged incident. No charges were laid at the time. No DNA evidence was taken from the clothing, which was returned to A.A. The videotaped interviews cannot be found by police. All that remains is the investigating officer’s notes of the interviews and reports completed by him.
[6] The Accused argues that his ability to make full answer and defence has been significantly and irreparably prejudiced by the lost videotape evidence and the returned clothing. He argues that this serious breach of his s. 7 Charter rights can only be remedied with a stay pursuant to s. 24(1).
[7] The Crown denies it has breached the Accused’s s. 7 Charter rights due to unacceptable negligence in inadvertently losing the videotape evidence and in returning the clothing once it was decided that the complainant no longer wished to proceed with charges. While the Crown acknowledges that harm has been done to the Accused’s right to cross-examine by virtue of the lost evidence, it argues that the prejudice to the Accused is not irreparable and a stay is not the appropriate remedy.
[8] The application is denied, without prejudice to the rights of the Accused to revive the application at trial. [Note: also on the date that this decision was delivered orally, I delivered a decision on a Jordan application staying all remaining counts, including the one at issue in this decision].
BACKGROUND:
[9] In November of 2017 Sergeant Russel Saudino, an Ontario Provincial Police (“OPP”) officer in Sioux Lookout, Ontario was conducting a sexual assault investigation involving the Accused when he discovered through an OPP electronic database search that the Accused had been investigated for sexual offences in the past.
[10] Sergeant Saudino came across an incident involving the complainant, A.A. from 2011. The electronic database suggested that she had provided two videotaped statements in 2011. At the time, these statements would have been stored in DVD format. It was the policy of the OPP to keep sexual assault investigation files for 25 years, even if no charges had been laid. The file had been sent for storage to Thunder Bay. Generally, such a file would contain any officer notes, all original documents such as recordings or monitor notes from the recorded statements.
[11] When Sergeant Saudino received the old file, it did not contain the DVD’s of the statements, and the original monitor notes.
[12] Sergeant Saudino contacted the investigating officer from 2011 to see if he could shed light on the missing DVD’s. A search of the local detachment filing cabinets was conducted. The DVD’s could not be located. The original investigating officer, Constable Robert, does not know what has happened to them.
[13] What the file did contain, was the following:
a. A four-page general report prepared on July 28, 2011, which includes a 1 ½ page synopsis of A.A.’s statement.
b. The notes of Constable Robert, which indicate that:
i. On July 28, 2011 he took the initial complaint from M.T. (Also known as M.A., A.A.’s mother) and A.A.;
ii. For approximately a half-hour on July 28, 2011 he took a statement from M.T., who reported what she was told by A.A.;
iii. He took a video statement from A.A. for almost two hours, and seized clothing from her; and
iv. On August 8, 2011, he took a further video statement from A.A. in relation to an incident in which the Accused’s truck was on fire, and in relation to the alleged sexual assault. The statement ran for approximately 1 hour and 20 minutes.
c. A VICLAS report, in which the officer records his understanding of the case.
[14] In addition to the stored file, Sergeant Saudino located the following online records:
a. The general report referred to above;
b. A supplementary report with respect to the August 8th, 2011 statement given by A.A.;
c. A supplementary report from August 15, 2011 indicating that A.A. did not wish to proceed with charges; and
d. A supplementary report dated September 21, 2011 noting that the clothing seized had been returned to A.A.
[15] The synopsis of the complainant’s allegations, made during the video statement on July 18, 2011, states:
a. On July 22nd, 2011 at 11 p.m., A.A. went to a bar with friends. They were drinking and dancing.
b. The Accused repeatedly attempted to dance with A.A., and she repeatedly refused.
c. At approximately 3:00 a.m., A.A. realized that her friends had left. The Accused offered her a ride home and she accepted.
d. Despite A.A.’s request to take her straight home, the Accused made a stop for a soft drink and then continued to drive. She began to feel concerned.
e. During the drive the Accused picked up an unknown male friend, took him to the same store, and then dropped him at a house.
f. The Accused then offered to take A.A. to a house party. She told him again she wanted to go straight home but would go for a drive if he insisted.
g. During the drive the Accused stopped the vehicle, turned it off, got out of the vehicle and walked around to the passenger side, pulled A.A. out of the vehicle and placed her forcefully against the side of it. He fondled her breast and vagina. When A.A. tried to push him away, the Accused is alleged to have pushed her back down and bent her forward, while pulling down her pants and underwear. He inserted his penis into her vagina. She yelled for him to stop, but he continued to forcefully hold her while sexually assaulting her. When she managed to free herself, he grabbed her again and pushed her onto her back on the passenger side of the vehicle. He then turned her onto her stomach and grabbed her by the legs while he inserted his penis into her vagina for a second time. After a few moments, A.A. was released from his grasp and she felt a slimy liquid coming from her vagina but was unsure whether it was semen and was also unsure if he was wearing a condom or not.
h. After the assault the Accused drove A.A. to pick up her younger brother and he then drove them home. He acted like nothing happened.
[16] The Supplementary Occurrence Report completed following the August 8th video statement is very brief, and contains the following information:
a. A.A. denied having been near the Accused’s vehicle when it was set on fire;
b. A.A. had sexual relations with another male while wearing the same underwear as during the assault on the 23rd;
c. A.A. did not want to press charges for the assault; she did not want to lose friends or be singled out as a result of an investigation; and
d. A.A. was cautioned for leading police into a false investigation. A.A. maintained that she was telling the truth.
[17] With respect to the interview of M.T., the synopsis of her statement is extremely brief, confirming that her daughter did not tell her details of what had happened. She did tell her that the Accused had sexually assaulted her. It was M.T. who contacted police to report the assault.
[18] M.T. has since passed away.
[19] The contents of the stored file and electronic file have been disclosed to the Defence.
[20] On January 17, 2018, in response to a request from Sergeant Saudino, A.A. gave a further videotaped statement to police. That statement is available and has been disclosed by the Crown along with notes of the statement.
[21] On March 19th and 20th, 2019 A.A. testified at a preliminary inquiry and was subjected to cross-examination.
[22] At the preliminary inquiry, A.A. testified that on July 22nd, 2011, she was at a bar. Her friend who had accompanied her left with the Accused. The Accused subsequently returned to the bar and told A.A. that her friend had asked him to pick her up. The Accused drove A.A. to an open area, came to her door, opened it, flipped her over on her stomach, removed her pants and underwear and began to have sexual intercourse. She was eventually able to muster a scream, at which point he stopped. She does not believe that the Accused ejaculated. She recalls he was upset that she made him stop. He then drove her to a party. When she tried to arrange a taxi to take her home, he convinced her to come with him instead, “threw her in the truck” and took her home.
[23] A.A. recalls reporting the incident to police approximately a week later. She remembers giving interviews “multiple times”, during which she had to “go through it over and over and over again.” She could not recall exactly, but believes she went to the police station three times. She did not recall how many times she described the events of July 22nd and 23rd, 2011.
[24] While the Crown’s evidence suggests there were two statements, A.A. believes she may have given three videotaped statements:
a. The first, on July 28, 2011 was approximately three hours long. They went over the allegations, multiple times.
b. The second was 2 to 3 days later when she brought her clothing and lasted approximately 1 hour and 40 minutes. She brought her two tops, her pants and her underwear. They discussed the allegations again and discussed at some length whether her boyfriend would also be willing to provide a DNA sample. They also discussed whether she recalled anyone else that she knew from the bar that night.
c. During the last interview she, again, went through the allegations again with police and her desire to proceed with charges. Her boyfriend was unwilling to provide a DNA sample. Despite this, the interview was primarily about the arson of the Accused’s vehicle and lasted approximately 45 minutes. After the video statement was concluded she recalls the officer telling her he did not think the charges would “get anywhere” and that if she went forward with it, “it would be all for nothing”. Based on what the officer told her, she agreed not to proceed with charges.
[25] In cross-examination at the preliminary inquiry, A.A. could not recall the specifics of any questions asked of her by Constable Robert in the 2011 statements. She acknowledged that her memory of the alleged assault would have been fresher, more detailed and more accurate in 2011 than now. She acknowledged that there may have been details she told to the officer in 2011 that she cannot remember now due to the passage of time.
ANALYSIS:
The Legal Framework:
[26] The Accused asserts that his ss. 7 Charter rights have been breached and that the only remedy to cure the breach is a stay of proceedings pursuant to s. 24(1) of the Charter.
[27] 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.
[28] Section 24(1) of the Charter provides that:
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.
[29] The Accused has the onus of establishing on a balance of probabilities that the state has breached his Charter rights: see R. v. L. (W.K.), 1991 54 (SCC), 1991 CarswellBC 806, 1991 CarswellBC 919, [1991] 1 S.C.R. 1091, at para. 18.
[30] The following principles are applicable to a s. 7 Charter lost evidence application:
a. The Crown’s obligation to disclose all information that is likely relevant to the case, as provided for in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, imposes a duty on the Crown and the police to preserve all relevant evidence.
b. Where the Crown is unable to comply with this disclosure obligation because of lost evidence, the Crown must demonstrate that the explanation for losing the relevant evidence does not amount to unacceptable negligence. If the Crown cannot satisfy this onus, then the accused’s rights under sections 7 and 11(d) of the Charter have been infringed.
c. Once an infringement has been established, then the appropriate remedy, and in particular whether a stay should be granted, should be examined in accordance with the principles set out in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411.
See: R. v. CMW, 2013 ONSC 4713, at para. 11, citing R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, at paras. 20-24.
[31] A stay should only 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.
[32] As explained by the Ontario Court of Appeal in R. v. Sheng, 2010 ONCA 296 at paras 44 to 46, a stay must be an exceptional remedy because its effect is to deprive society of an adjudication on the merits. To justify a stay, an Accused must show that the lost evidence has prejudiced him in a substantial or material way. Assessing prejudice is, to some degree, speculative.
[33] The Accused 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 merely harder to put forward a defence. The Court of Appeal for Ontario explained in R. v. Bradford, 2001 24101 (ON CA), [2001] O.J. No. 107, 52 O.R. (3d) 257, (Ont. C.A.), at paras. 6-8:
[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 70 (SCC), [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 637 (SCC), [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 309 (SCC), [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.
DISCUSSION:
Was there a breach of the Applicant’s s. 7 rights?
Video Statements:
[34] The Crown does not dispute the relevance of the lost tapes. While the second interview pertained largely to the arson investigation, the alleged assault was still discussed. The lost video statements are clearly relevant.
[35] I agree with the Defence that the explanation of the Crown for the loss of the video statements amounts to a non-explanation. The Crown simply does not know what happened to them. The Crown cannot say whether they were lost when they went to storage, or whether they were even sent to storage as required.
[36] In circumstances of a non-explanation, Sosna J., in R. v. C.M.W., 2013 ONSC 4713, at para. 23, concluded that the Crown had not met its onus of establishing its duty to disclose a statement to the Applicant had not been breached by loss owing to unacceptable negligence. I see no reason to conclude otherwise in this case. While I appreciate that sometimes items simply go missing and there is no explanation, the burden remains on the Crown to demonstrate that the loss was not occasioned by unacceptable negligence. Without any understanding as to what may have happened to the statements, I am unable to conclude that the Crown has satisfied its burden. Evidence from the Crown as to what was done to try to locate the lost evidence after the fact does not change my conclusion that there has been a breach of the Accused’s s. 7 rights.
Clothing and DNA:
[37] With respect to the clothing that was returned, the Crown does dispute the relevance. The Crown argues that if the clothing had been tested and DNA of the Accused found, that would have been crucial evidence for the Crown’s case. If no DNA evidence had been found, this would not be proof that an assault did not occur.
[38] DNA evidence can be important evidence in cases in which the basis for the Defence is that sexual intercourse simply did not happen. The complainant has given evidence previously that she felt a slimy substance on her after the alleged encounter with the Accused. If the Accused’s position is that sexual intercourse did not happen, and no DNA of the Accused was found on the clothing, the DNA evidence is clearly relevant, even if it may not be determinative of the issues.
[39] The challenge for me in hearing this application without the benefit of a trial is that I am uncertain as to whether the position of the Accused is that there was no sexual intercourse with the complainant, or that there was intercourse but with consent. While I have assumed from the arguments made that it is the former, I do not know for certain. If the basis for the defence is consent, then the DNA evidence is not relevant, as intercourse is admitted. If this is the case, then the Crown is correct that the DNA evidence is a “red herring”.
[40] Not knowing the basis for the defence, I cannot make any findings with respect to the relevance of the DNA evidence. This will be best determined at trial.
Is a Stay of Proceedings the Appropriate Remedy?
[41] Both the Crown and the Defence agree that the central issue in this case will be the reliability and credibility of the complainant’s evidence.
[42] The Accused argues that his ability to make full answer and defence, and to have a fair trial has been irreparably damaged by the loss of the video statements and the lost opportunity to impeach the complainant based on these statements. The videos were made close to the event, the evidence of A.A. at the preliminary hearing differed in many ways from the synopsis of her video prepared by police at the time the statements were given. She has admitted that the passage of time has hindered her ability to recall all the details of the night in question. The Accused argues that not having the full details of these statements to properly cross-examine the complainant causes irreparable damage to his ability to defend himself. The Accused denies that the solution offered by the Crown remedy the prejudice.
[43] The Crown acknowledges that the Accused’s ability to cross-examine has been impacted, but this is not the test; mere harm to the ability to cross-examine occasioned by the lost evidence is insufficient. The test requires irreparable prejudice to the Accused’s ability to have a fair trial. The Crown argues that there has been substantial disclosure, which alleviates the loss of evidence in this case. The Crown argues that the following steps were taken to protect the Accused’s right to make full answer and defence:
a. Once the loss was discovered, in January of 2018 a new statement was taken from the complainant, lasting one hour and seventeen minutes. This statement was promptly disclosed.
b. The Crown called the complainant at the preliminary inquiry, where she was examined and cross-examined for the better part of a day on her evidence.
c. A detailed synopsis of the complainant’s statement of July 28, 2011 has been disclosed, along with an additional written summary contained in the Viclas report and the officer’s notes. These notes include A.A.’s first account provided to police during an informal roadside statement on July 28, 2011, along with three full pages of notes taken during the July 28th statement.
d. One page of officer notes has been provided with respect to the August 8th, 2011 attendance.
[44] Importantly, the Crown has conceded for the purpose of the trial in this matter, that the written recordings of statements made by the complainant in 2011 are accurate as statements of the complainant so that they may be used to cross-examine and impeach the witness. This is a significant concession, particularly given the inconsistencies between this statement and the subsequent statement and evidence of the complainant.
[45] The defence denies that this is useful or that this concession can remedy the prejudice of the lost statements. The complainant is unable to recall the specific questions that were asked of her in her original statements. The defence argues that the Crown concession will be meaningless if the complainant refuses to acknowledge that the officer notes are accurate or says she cannot remember. The defence queries how this impacts the Crown’s admission that the notes accurately reflect what the complainant told the police.
[46] The Accused also argues that the brief notes that have been produced cannot match the hours of the statements given contemporaneous to the event. This is not adequate substitute evidence, and neither is the 2018 video statement. The Accused cites R. v. C.M.W., at para. 46, in support of the proposition that if the complainant has no recollection of the details provided in her lost video statement, the possibility of contradicting her at trial is irreparably undermined. I note that in R. v. C.M.W., there was no indication that the Crown had admitted the accuracy of the contents of the statement.
[47] It is acknowledged that there is some prejudice to the Accused’s ability to cross-examine the complainant:
a. The lost video statements were made only a week after the alleged event, and at a time when the allegations were fresh in the mind of the complainant;
b. The written reports capture the essence of the allegations but cannot capture all the details provided in the video statements when one takes into consideration the length of the written reports versus the complainant’s recollection as to the length of the video statements. There are also no direct quotes in the reports;
c. Even though there is a 2018 video statement and a preliminary inquiry transcript of a lengthy examination and cross-examination of the complainant, she has acknowledged that her memory had faded somewhat by 2018 and by the time of the preliminary inquiry;
d. The Accused was never made aware of the contents of the lost evidence before disappearance; and
e. While there are other witnesses to certain events that evening, there were no other witnesses to the alleged assault.
[48] Despite this, the Accused has the benefit of the 2018 video interview and lengthy testimony from the preliminary hearing to use to cross-examine the complainant, in addition to the written statements. While admittedly not a perfect solution, the written police reports, the 2018 video statement and preliminary inquiry transcript all reveal a basis for a fruitful cross-examination with respect to various inconsistencies revealed in that evidence. At this stage, I cannot conclude that the lost evidence has irreparably prejudiced the Accused’s ability to cross-examine the complainant.
[49] The challenge I have in this case in determining the issue of prejudice is that I have not yet heard the evidence of the complainant and in determining this application prior to the trial I am left to speculate as to whether the prejudice is irreparable or not. The Defence acknowledges that in order to assess the degree of prejudice resulting from lost evidence, it is usually preferable to rule on the stay application after hearing all the evidence at trial so that prejudice can be determined in the context of all of the trial evidence: See R. v. Bero, (2000) 16956 (ON CA), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (C.A.), at para. 18. The defence argues that when the Court has a sufficient evidentiary foundation for assessing the application prior to trial, there is no point delaying a decision on whether a stay should be granted: See R. v. R.C.S., 2004 NSSC 232. The defence argues that this is such a case; it is clear there is irreparable prejudice and a stay should be granted.
[50] In dealing with this application prior to trial, I do not know what the evidence of the complainant will be. While I acknowledge her preliminary hearing evidence that she does not recall the specifics of questions asked by the officer in 2011, and may have forgotten some details, this does not necessarily mean she will deny the contents of the statement that the Crown is admitting is true, or will not acknowledge certain details in response to more pointed questions than those asked at the preliminary inquiry. If the complainant simply cannot remember what she told police in 2011, then this does not affect the Crown admission that the written statement is an accurate reflection of what she said. If she denies that the statement is accurate, this could be more problematic, although the Crown has indicated that it will not go behind its admission regardless of the evidence of the complainant.
[51] For the foregoing reasons the defence has not met its onus with respect to demonstrating that a stay is an appropriate remedy. Having said this, my conclusion is based on this application being premature. The conclusion at trial could be different, once all evidence can be considered in context. The application is therefore dismissed, without prejudice to the right of the Accused to revive the application at trial, on notice to the Crown.
The Honourable Madam Justice T. Nieckarz
Released: June 8, 2021
COURT FILE NO.: CR-19-42-MO
DATE: 2021-06-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ANDREW SCHARDT
REASONS ON APPLICATIONS
Nieckarz, J.
Released: June 8, 2021
/sf