COURT FILE NO.: CR-16-70000768

DATE: 20211105

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Raymond Burke

Defendant

Christine Jenkins and Sandra Duffey, for the Crown

Andrew Vaughan, for the Defendant

HEARD: March 29-31, April 1, 6-8, 12-13, 16, June 22, September 8 and 10, 2021 (by videoconference)

PUBLICATION BAN

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

REASONS FOR DECISION

NISHIKAWA j.

Overview and Procedural Background

1The accused, Raymond Burke, is charged with multiple offences including kidnapping, uttering threats, assault, and sexual assault against two women, N.M. and A.E., in separate incidents that took place in September and October 1986.

2The incident involving N.M. is alleged to have occurred in September 1986, beginning when Mr. Burke picked N.M. up in his car and ending when he dropped her off at her motel the following morning. N.M. alleges that Mr. Burke choked her, whipped her with a belt, threatened her with a knife, and sexually assaulted her three times.

3The incident involving A.E. is alleged to have occurred in October 1986, beginning when Mr. Burke picked A.E. up and ending the following evening when she jumped out of his car while they were driving east on Highway 401. A.E. alleges that Mr. Burke whipped her with a belt multiple times, tied her up, and sexually assaulted her in his car and while she was tied to a tree.

4On September 18, 1986, Mr. Burke was arrested and charged in relation to the alleged offences against N.M. Mr. Burke was released on bail on September 22, 1986.

5In October 1986, Mr. Burke fled the jurisdiction for the United States. On October 28, 1986, a warrant in the first instance was issued for the alleged kidnapping and sexual assault of A.E.

6In January 1988, the Toronto Police Service (TPS) received information that Mr. Burke was arrested in Colorado. I note this only as part of the procedural background and add that I take nothing from Mr. Burke’s conviction in the United States, which is not relevant to the issues before me.

7In 2000, the TPS received information that Mr. Burke remained in custody in Colorado.

8In 2005, the Crown withdrew the charges against Mr. Burke in relation to N.M. As a result, the investigation file, including N.M.’s statement, was purged.

9In 2015, Mr. Burke was released and deported back to Canada. Upon his arrival, he was arrested by the TPS. In 2016, police interviewed N.M. again and the charges that had been withdrawn in 2005 were added to the Information. A charge of kidnapping was added.

10In April 2017, Mr. Burke’s application for a stay of the charges under s. 11(b) of the Charter was granted: R. v. Burke, 2017 ONSC 3261. The Court of Appeal subsequently set aside the stay on the basis that the delay in the prosecution was caused by Mr. Burke’s flight and was thus entirely attributable to illegitimate defence delay: R. v. Burke, 2018 ONCA 594. The matter was returned to this court for trial.

11At trial, Mr. Burke elected to proceed by judge alone and consented to proceed by videoconference.

12At the outset of the trial, the defence brought a s. 276 application to adduce evidence of prior sexual activity of the complainant, N.M. In an oral ruling, I dismissed the application at the first stage under s. 278.93 because the application did not set out detailed particulars of the evidence that Mr. Burke sought to adduce and because the evidence at issue was not capable of being admissible under s. 276(2).

13The Crown did not bring an application to adduce evidence of prior sexual activity of either N.M. or A.E. The Crown’s position is that they are not relying on evidence of either complainant’s prior sexual activity other than as it relates to the offences charged. For the purposes of certainty, I note that I make no findings other than that each complainant interacted with Mr. Burke to provide sexual services for money on the two dates in question.

14The Crown brought an application for the admission of similar fact evidence across the counts, which will be addressed in these reasons.

15The defence brought an application to stay the proceedings based on the loss of the original Crown brief relating to N.M., among other evidence. The application was heard after the conclusion of the trial evidence and will also be addressed in these reasons.

The Charges

16Mr. Burke is charged with the following offences in relation to N.M.:

(i) Sexual assault with a weapon (knife), contrary to s. 246.2(a);

(ii) Assault with a weapon (knife), contrary to s. 245.1(1)(a);

(iii) Assault with a weapon (gun), contrary to s. 245.1(1)(a);

(iv) Overcoming resistance to commission of an offence, contrary to s. 230(a);

(v) Kidnapping with intent to confine, contrary to s. 247(1)(a); and

(vi) Uttering a threat, contrary to s. 243.4(1)(a)

17Mr. Burke is charged with the following offences in relation to A.E.:

(i) Sexual assault with a weapon (knife);

(ii) Sexual assault causing bodily harm, s. 246.2(c);

(iii) Assault with a weapon (knife);

(iv) Kidnapping with intent to confine;

(v) Forcible confinement, contrary to s. 247(2); and

(vi) Uttering a threat.

18The applicable Criminal Code provisions are those that were in force at the time of the offences, in the fall of 1986, which are annexed to these reasons at Appendix ‘A’.

19The defence’s position is that the evidence of both complainants ought not be accepted because of significant reliability and credibility concerns.

Issues

20The issues to be determined in this case are as follows:

(a) Whether the similar fact evidence should be admitted across the counts;

(b) Whether the loss of evidence breaches Mr. Burke’s s. 7 right to a fair trial, and whether the proceedings should be stayed as a result;

(c) The credibility and reliability of the complainants’ evidence;

(d) Whether any weight should be given to the evidence of Mr. Burke’s after-the-fact conduct;

(e) Whether the Crown has proven the elements of each offence in relation to N.M. beyond a reasonable doubt; and

(f) Whether the Crown has proven the elements of each offence in relation to A.E. beyond a reasonable doubt.

The Evidence

N.M.

21In September 1986, N.M. was 22 years old and using the assumed name “Caramel Holiday.” N.M. was not from Toronto and was living at a motel with her partner at the time, R.W.

22At approximately 9:30 p.m. on the night of September 16, 1986, N.M. was on the corner of Church and Dundas when Mr. Burke approached in his car. N.M. testified that she opened the front passenger door and leaned into the car when Mr. Burke produced a knife and told her to get in the car or he would kill her. She felt she had no choice but to get into the car. There was no one else in the area at the time. Mr. Burke told N.M. to put her legs across the middle console and her hands on the stick shift. He had his leg on top of hers. He held the knife to her as he drove and told her that if she did not do everything he said, he would kill her.

23At one point, N.M. saw a police car next to the vehicle and swore at the officers in an attempt to have them pull over Mr. Burke’s car. The officers did not respond. N.M. testified that she did not think she could get out because Mr. Burke’s legs were over hers. She weighed approximately 100 to 110 pounds at the time.

24Mr. Burke drove N.M. to his apartment, which she recalled was approximately 20 minutes away. She remembered looking at street signs and noting “Dundas.” She described the complex as a business area. The door had a red neon sign over it with the words “flea market.” Mr. Burke held the knife to her and took her out of the car from the driver’s side. He then led her up some stairs and down a hallway to a small apartment.

25When they got to the apartment, Mr. Burke told N.M. to take her clothes off and get on the bed. She described his demeanour as hostile and angry, both in the car and when they arrived at the apartment. N.M. testified that Mr. Burke told her that he wanted to dominate her but that she was not willing to let that happen. She pleaded with him to let her go and tried to defuse the situation. N.M. testified that Mr. Burke told her that he was going to tie her up, whip her and torture her, and that he would burn her with cigarettes if she was not compliant. N.M. continued to apologize to him and to tell him that he did not need to hurt her. Mr. Burke said that no one saw him pick her up and that he was not going to let her go.

26At some point while N.M. was on the bed, Mr. Burke told her to get on all fours. He whipped her with a brown leather belt with no buckle, approximately two inches wide. N.M. testified that she was trying to be compliant but that she could not let him continue to hit her. When she refused, Mr. Burke became angrier.

27N.M. testified that there was a dresser with a drawer full of knives and that Mr. Burke took one of the knives. Mr. Burke held it over her, close to her eye, as she was laying on the back of the bed and said “if you don’t fucking do what I say, I’ll stab you in the eye.”

28At that point, N.M. told Mr. Burke that she had to go to the bathroom, so that she could get out of the bedroom. Mr. Burke took her to the bathroom. Thinking that she was not going to make it out of the apartment, N.M. dropped her bracelet by the toilet. Mr. Burke saw that and “freaked out.” He accused N.M. of planting evidence against him. He made N.M. clean the bathroom and wipe the toilet and the surrounding area while he stood over her. N.M. denied planting evidence and said she was sorry.

29At that stage, Mr. Burke became more aggressive. N.M. testified that, in an attempt to “change the scenario,” she tried to be aggressive back. She started to confront Mr. Burke in the living room area of the apartment, telling him that she was a human being, that he could not do this to her because she was a person. She physically took hold of his arm and said: “you’re a human being.” Mr. Burke became upset and threw her on the couch. He got on top of her and started to “strangle” her. N.M. tried to gouge Mr. Burke’s eyes and to grab his testicles, but she eventually lost consciousness. N.M. recalled scratching Mr. Burke above his left eye, near the eyebrow, with her right hand.

30N.M.’s next memory was waking up in the bathtub to find Mr. Burke running a knife down her neck and chest. He was running the knife along the surface of her skin, so that it would scratch but not penetrate her skin. Mr. Burke told her that he could easily kill her and let her blood drain into the bathtub. He said he would throw out what was left of her in a garbage bag. N.M. described Mr. Burke as “furious” and “so mean, enraged.” N.M. testified that she felt so scared that she decided she had to do everything he told her to. After being unconscious, she felt weak and that she did not have all her faculties.

31N.M. asked to be let go, but Mr. Burke said he would not let her go because she would go to the police. She tried to assure him that she would not go to the police. She told him that she was pregnant at the time and Mr. Burke accused her of lying. He repeated that no one had seen him pick her up and said that no one would miss her. N.M. testified that Mr. Burke told her that he had no choice but to kill her because he was not going to go to jail.

32When N.M. was trying to convince Mr. Burke that she would not go to the police, he said that women were “bitches,” that his ex-wife was a bitch and she was keeping his son away from him. N.M. told Mr. Burke that she understood why he was so angry because she had a daughter. N.M. continued to try to negotiate with Mr. Burke, telling him that she would not go to the police. She asked to use the telephone and tried to call her brother-in-law. When she said “Jimmy” into the phone, Mr. Burke grabbed the phone away from her. He told N.M. to get her things because they were leaving.

33It was still dark outside when Mr. Burke took N.M. from the apartment back to the car. He held a knife to her as he did when he brought her there. She was wearing nothing but a small towel. Her clothes, shoes and purse were in a garbage bag. Mr. Burke told N.M. that he could not let her live because he was not going to jail.

34Mr. Burke put N.M. into the car from the driver’s side. He told her to sit in the same position as before, with her legs over the console and her hands on the stick shift. He drove for a very long time, to a sideroad off of the highway. N.M. testified that there were no street lights and no cars were passing. The car stopped near a field. N.M. continued to plead and negotiate with Mr. Burke, who remained angry.

35At that point, Mr. Burke told N.M. to put the seat back down and turn around, or he would kill her. N.M. pleaded with him but did as he said because he was holding the knife to her. After she turned around, Mr. Burke penetrated her vaginally from behind. He ejaculated and then returned to the driver seat.

36N.M. continued to plead with Mr. Burke and to tell him she would not go to the police. She talked to him about her child and how it was unfair that he could not see his son, that she understood where his anger came from and that he was a good person. She said that they could be friends and tried to gain his trust, so that he could not just dispose of her. N.M. testified that Mr. Burke became calmer when talking about his child and about being friends.

37Mr. Burke then told N.M. to get out of the car. She thought it was a test. She refused to get out of the car because she wanted Mr. Burke to think he could trust her. Mr. Burke told her to get out of the car or he would kill her. N.M. continued to refuse to get out of the car, and they continued to talk for another 45 minutes.

38After that Mr. Burke told N.M. to put the seat back again. He penetrated N.M. anally. He did not ejaculate. N.M. testified that she did not resist and acted like there was nothing bad happening to continue to try to gain his trust.

39Mr. Burke then became angry again and told N.M. to take the knife, saying that either he would have to kill her or she would have to kill him. N.M. refused to take the knife and again tried to convince Mr. Burke that they would be friends and that he should just let her go. At that point, Mr. Burke “snapped” and started to scream at her that she was lying and to get out of the car.

40N.M. got out of the car. Mr. Burke also got out and told N.M. to walk. N.M. started to walk straight ahead into the field. The headlights of the car were on. N.M. heard a gunshot behind her. She fell to her knees and vomited. N.M. testified that at that point, she gave up and wanted it to be over. She told Mr. Burke that if he was going to kill her, he should just do it: “Just kill me because I don’t want to do this anymore. I couldn’t think of any way to get out of it, was just done. I couldn’t do it anymore. I sat on the ground and said, ‘just kill me.’”

41Mr. Burke was standing over N.M. holding the gun. He did not point the gun at her. N.M. described it as small and “like an old-fashioned gun.” Mr. Burke told N.M. to get up and get back in the car. After they got back in the car, N.M. again tried to calm Mr. Burke down, telling him that they could be friends. She told him that they would have to go to a public place with their kids so she could feel safe and trust him. She said she needed to go home and sleep and would see him the next day with their children for lunch. N.M. testified that she thought Mr. Burke was starting to believe her. N.M. told him that they would forget everything that happened and start anew. At that point, Mr. Burke told N.M. to put the seat back and turn around again. He penetrated her vaginally from behind. N.M. testified that “I played along because he was starting to believe me when I said we could be friends. I did what I had to do, went along with it… but I didn’t mean any of it, I did what I had to do.”

42N.M. testified that they continued to talk in the car. She told him that “he was a good person who was done wrong.” N.M. convinced Mr. Burke to drive her back home. At that point, she got dressed and they left the field. On the drive back to the city, Mr. Burke would occasionally say that N.M. was lying and that he was not going to jail. When they passed a truck stop, Mr. Burke told N.M. that he could put her in the back of his semi truck and kidnap her. N.M. told him “we’re not doing that” and that they would forget everything that happened and start afresh. Mr. Burke was no longer holding a knife to N.M. but he still had it “in his possession.”

43When they arrived at N.M.’s motel, N.M. told him that she was going to get some sleep and that she would call him so they could meet at the Eaton Centre with the kids. Mr. Burke wrote his name and phone number on a piece of paper and gave it to N.M. She testified that Mr. Burke threw $100 in her purse and she got out of the car.

44N.M. testified that after she went to her motel room, she started crying and screaming and telling her husband, R.W., that she had to go to the hospital. She saw the marks on her chest from where Mr. Burke had scraped her skin with the knife. N.M. testified that she went to the hospital right away, where a sexual assault examination kit (SAEK) was done.

45In addition to the marks on her chest from the knife, N.M. had marks on her neck from the choking. She had welts on her waist and on the back of her thighs and legs from the whipping. She had bruises on her right arm where Mr. Burke had grabbed her when they struggled. She had swelling and redness from the intercourse. N.M. testified that she was offered the morning-after pill but did not take it because she was pregnant.

46N.M. spoke to police while she was at the hospital. She gave them the paper with Mr. Burke’s name and telephone number. She was taken to the police station. The police officers drove N.M. by the scene and asked her to identify it if she saw it, which she was able to do.

47N.M. was at the police station when Mr. Burke was arrested. On cross-examination, the defence put to N.M. that police told her what Mr. Burke said on his arrest. N.M. acknowledged that she was told. At trial, I ruled that what N.M. was told by police about what Mr. Burke said, which is double or triple hearsay, was not admissible for the truth of its contents, but the fact that she was told was admissible for the purposes of the defence lost evidence application.

48N.M. testified that a while later, TPS officers contacted her and told her that she had to leave Toronto because Mr. Burke was “out” and that “they couldn’t protect me.” N.M. was told that Mr. Burke had done “the same thing to another girl, that they knew it was the same person because he was talking to her about me and said Caramel Holiday made it to the courtroom once and would not make it there again.”

49N.M. had a subsequent contact with the TPS in 1987. She was not contacted again until 2016.

50On cross-examination, defence counsel put to N.M. that Mr. Burke kicked her out of his apartment and that she returned the following day with R.W. or another individual to confront Mr. Burke about a drug debt. N.M. denied that she saw ever Mr. Burke again after he dropped her off at her motel.

A.E.

51In October 1986, A.E. was 17 years old and attending high school in Toronto. She went by the nicknames “Champagne,” “Barbie,” and “Snow White.” On the evening of October 25, she was on the corner of Jarvis and Dundas when Mr. Burke drove up to her in his car. She was either alone at the time or with one friend. A.E. got into Mr. Burke’s car, which she recalled was a white Mercedes. A.E. recognized Mr. Burke because she had had an interaction with him a few weeks earlier. A.E. agreed to perform oral sex on Mr. Burke for $50.

52A.E. testified that Mr. Burke drove down Jarvis towards Queens Quay and then headed toward the highway. At that point Mr. Burke’s demeanour slipped from being nice to being “mean” and “scary.” A.E. testified that Mr. Burke went from “Jekyll to Hyde” and that he was ranting and raving about “getting it for free.” Mr. Burke pulled out a knife, which A.E. described as a “big hunting knife.”

53Mr. Burke pulled the car over to the shoulder of the highway. He instructed A.E. to take her clothes off and to kneel on the floor of the car with her stomach on the passenger seat. Her pants were down around her ankles and her shirt was up around her neck. Mr. Burke told her he was already accused of being a rapist so he might as well just do it. Mr. Burke took his belt off and began whipping her with it. A.E. testified that Mr. Burke whipped her on her back, legs and buttocks. A.E. described the belt as brown leather, with a buckle. He began to touch A.E. and to put his fingers in her vagina and anus. A.E. testified that “there was intercourse at the same time” and that after Mr. Burke ejaculated, he instructed her to get dressed. The stop on the side of the highway lasted for approximately fifteen minutes.

54Immediately after, Mr. Burke also told her that he could not let her go because she had “proof,” the whip marks on her body, and that he would have to kill her. A.E. described Mr. Burke as “calm but panicky” and that he was “freaking out about what to do with me.”

55A.E. testified that after the whipping, she tried to calm down and engage Mr. Burke in conversation. He gave her his full name, told her that he was 33 years old, and that he was from British Columbia. Mr. Burke told A.E. he had a son and that he and his wife were getting back together. He said that he was charged with rape and that ruined his chance of getting back with his wife. He told her he had been in trouble with the law before, that he had a brother who had helped him out a few times in the past. A.E. tried to convince Mr. Burke that she would not go to the police, so he would release her. Mr. Burke would alternate between calm and angry, telling her to shut up and calling her names.

56A.E. testified that they were “aimlessly driving around” in the Mercedes for hours, going uptown and then coming back as Mr. Burke debated letting her go. At some point while he was driving, Mr. Burke forced A.E. to perform oral sex on him. A.E. testified that she did everything he told her to because she was terrified and “just trying to survive.”

57Eventually, Mr. Burke drove A.E. to a truck stop near Dixie Road where his tractor trailer was parked. A.E. had the impression that Mr. Burke did not know what to do with her. He took A.E. out of the Mercedes and put her in the sleeper compartment of the truck, behind the front seating area. Mr. Burke cut her scarf into two pieces with the knife and “hog-tied” her. Her arms were tied together, as were her legs, and her hands and feet were tied together. Mr. Burke continued to say that he could not let her go because she had proof. He debated what to do with her because he was worried about A.E. going to the police, and was worried about getting caught and going to jail. Mr. Burke zipped up the sleeper compartment. Mr. Burke then drove around in the truck.

58A.E. testified that at some point, Mr. Burke stopped the truck, went to the sleeper compartment and whipped and raped A.E. again. When challenged with her contemporaneous written statement on cross-examination, which did not mention this incident, she admitted that she did not have a clear memory of this happening.

59At some point the next day, Mr. Burke stopped at a restaurant. He took the $50 he had given A.E. to buy food. While Mr. Burke went in to buy the food, A.E. loosened her restraints. When Mr. Burke returned with burgers, A.E. tried to hide the fact that she had untied herself. However, Mr. Burke saw and became angry. He told A.E. that he was going to kill her.

60After they both ate the food, Mr. Burke told A.E. that he needed to sleep. He slept in the sleeper compartment, leaning against the zipper. A.E. testified that she was too scared to try to get away because she would have to crawl over him and to open the zipper. When he woke up, Mr. Burke told A.E. that he was going to release her. Mr. Burke started to drive again and A.E. tried to talk to him and keep him calm. Mr. Burke told A.E. that if she went to the police, he would head straight for the U.S.

61Mr. Burke drove A.E. to a farm area down a dirt road. It was light out at the time. A.E. testified that Mr. Burke told her that he wanted to be dominating. A.E. believed that “he liked to have a submissive person, he wanted to beat, whip, cause someone pain for his sexual gratification.”

62Near a wooded area, Mr. Burke took A.E. out of the car and tied her to a tree with her hands over her head. He pulled her pants down and her shirt up and proceeded to whip her on her back, legs and stomach. A.E. testified that Mr. Burke could not get an erection and was saying “this doesn’t do anything for me.” He tried to penetrate her multiple times but was unable to. He became angrier. A.E. begged Mr. Burke to let her go, that it was not just about her but her family and friends. He was very angry, and screamed that he was going to kill her because there were too many marks. A.E. testified that she thought she was going to die. Mr. Burke untied A.E. and made her perform oral sex on him while he inserted his fingers into her vagina and anus. He ejaculated. A.E. estimated that she was tied to the tree for a total of twenty minutes.

63As they were walking back to the vehicle, A.E. saw an old man in a pick-up truck. Mr. Burke asked her what she was going to do. A.E. grabbed Mr. Burke’s hand to pretend they were a couple. A.E. testified that she said nothing to the old man because she did not want Mr. Burke to hurt him.

64Mr. Burke then told A.E. that he would let her go, and that he was going to let her call a friend to let them know that she was OK and that she would be coming home. A.E. told Mr. Burke that she would not go to the police and that she would give him her phone number. Mr. Burke took A.E. to a phone booth somewhere in Scarborough. It was already dark at the time. A.E. testified that she saw a couple of people in the distance, but did not scream for help because she thought she was going to be released, and did not want to get others involved.

65When A.E. was making the phone call, Mr. Burke was right beside her listening in. She called a couple of numbers, two of which were wrong numbers, but was not able to get anyone. Mr. Burke became aggravated and suspicious. He told A.E. he could not let her go. Mr. Burke told A.E. he was going to take her to Kingston where his friend would have sex with her and “drug her up with heroin.”

66A.E. could not recall whether they were driving around in the truck or the Mercedes when they stopped to make the phone call.

67At some point, Mr. Burke drove back to the truck stop where they had picked up the truck. They got back into the Mercedes. Mr. Burke was “ranting and raving” that he was going to kill her, that he would put her to work in San Francisco. He asked A.E. if she had heard of “white slavery.” A.E. testified that she specifically recalls the reference to “white slavery” and that she thought she “would rather be dead than go through that.” Mr. Burke was driving east on the 401 toward Kingston. A.E. described him as volatile and scary.

68As Mr. Burke drove, A.E. waited for the car to be in the right-hand lane. She put one hand on the lock and the other on the door handle. Mr. Burke noticed and said “you’ll kill yourself if you do that, bitch.” He told her to kneel on the floor again. A.E. testified that she knew that if she was in that position again, she would be “stuck.” She opened the car door and jumped out onto the shoulder. Mr. Burke grabbed her sweater by the shoulder and then let go. A.E. testified that she had been watching the speedometer because she did not want to jump out until the car slowed down. She thought the car was going 60 miles per hour. On cross-examination, A.E. admitted that she did not know whether it was miles or kilometres per hour.

69A.E. landed on the shoulder of the highway and rolled a few times. She got up and ran in the direction of the vehicles and tried to flag someone down. When no one stopped, she lay down on the shoulder of the highway and waved her arms. Two men in a pickup truck stopped and picked her up. They took her to a restaurant just off the highway exit, where police were called.

70A.E. was transported to the Bowmanville Hospital by Durham Police Services (DPS) officers. She was than transferred to the TPS and taken to Women’s College Hospital where a SAEK was administered. A.E. had gouges on her right foot and either a broken toe or broken bone in her foot, which required a cast. Photographs taken by police at the time show multiple welts and bruising on her body. A.E. also had road rash on her back from jumping out of the car and hitting the gravel.

71When A.E. jumped out of the car, she left her belongings behind, including her house keys and wallet, which included her identification. She moved to her sister’s a couple of days later because she was afraid that Mr. Burke would find her.

72A.E. testified that while they were driving around, Mr. Burke told her that he had consensual sex with a “prostitute,” that he “was into S&M… beating and stuff sexually.” Mr. Burke told A.E. that the individual had consented and then “turned around and charged him and said it wasn’t consensual.” Mr. Burke also told A.E. that “Carmela Holiday” had agreed to $300 to let him spank her but she chickened out. A.E. testified “he ended up losing his family again, so that’s why he was doing what he did to me.” Mr. Burke showed A.E. the scratch marks on the left side of his face and said he was doing this to get revenge.

73Defence counsel put various scenarios to A.E. on cross-examination. A.E. denied that Mr. Burke had offered to pay $300 to dominate her or to drive around and act like his “girlfriend” for an extended time. A.E. denied that she jumped out of the car on the highway because she and Mr. Burke had fought over money and she was upset that he did not pay her for a whole day. A.E. also denied that she jumped out because Mr. Burke had accused her of setting him up with N.M.

Analysis

The Crown’s Similar Fact Application

74The Crown seeks an order for the admission of similar fact evidence across the counts on the indictment, such that the totality of the evidence is admissible in respect of each count.

75The Crown submits that there is a high degree of similarity in the manner in which Mr. Burke kidnapped and sexually assaulted each complainant. Specifically, that Mr. Burke had a specific behavioural pattern of using weapons to kidnap sex workers for a prolonged period of time, driving them to isolated locations in his vehicle, raping them, and continually threatening to kill them as a means of avoiding going to jail.

76The defence submits that the similar fact evidence ought not to be admitted because it is tainted by actual or unconscious collusion and because its prejudicial effect outweighs the probative value.

The Applicable Principles

77The framework for analyzing whether similar fact evidence should be admitted was set out by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. Similar fact evidence, or evidence of general propensity or disposition, is presumptively inadmissible because evidence of discreditable conduct of the defendant which relates to an event other than the particular count at issue carries the potential for prejudice, distraction and consumption of time: Handy, at para. 37.

78Similar fact evidence may be admitted, however, if the prosecution demonstrates on a balance of probabilities that in the context of the case, the evidence is relevant and material, and its probative value in relation to a particular issue outweighs its potential prejudicial effect: Handy, at para. 55.

79In R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at paras. 38-44, the Court of Appeal elaborated on the assessment of probative value of the evidence, as involving four inquiries, as follows:

(a) Does the evidence relate to a specific issue, other than that the accused is a person of bad character?

(b) Is the evidence tainted by collusion, which undermines the improbability of coincidence?

(c) What are the similarities and differences between the evidence that forms the basis of the charge and the proposed similar fact evidence?

(d) How strong is the evidence that the similar acts occurred?

80The probative value of similar fact evidence is assessed by considering the following factors, set out in Handy, at para. 82, that relate to the connectedness between the similar fact evidence and the circumstances of the charge:

(i) The extent to which the other acts are similar in detail to the offence charged;

(ii) The proximity in time of the similar acts and the offence charged;

(iii) The number of occurrences of the similar acts;

(iv) The circumstances surrounding or the context in which the similar acts occurred;

(v) Any distinctive feature or features unifying the incidents or intervening acts; and

(vi) Any other factor which would support or rebut the underlying unity of the similar acts.

81The prejudice to be weighed includes: (i) moral prejudice, that the accused is more likely to have committed the act in issue because they have committed morally repugnant acts in the past; and (ii) reasoning prejudice, or the distraction of the trier of fact from the offence charged: Handy, at para. 139.

Findings

Probative Value

82The four inquiries outlined in Bent will be analyzed below in the context of the evidence.

(a) Relating to a specific issue

83First, the probative value of the evidence can only be determined in light of the purpose for which the evidence is proffered: Handy, at para. 69. As a result, the Crown must first establish “the specific factual issue on which the evidence is probative of the improbability of coincidence.” Handy, at para. 74.

84The Crown submits that the similar fact evidence is probative to the credibility of each complainant with respect to the actus reus of the offences and to rebut the defences of consent and fabrication.

85Credibility, on its own, is not a factual issue on which similar fact evidence can be tendered. The Crown may tender similar fact evidence to support the credibility of a complainant, provided that the Crown identifies a material issue to which the complainant’s credibility is probative: R. v. R.B. (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (C.A.), at paras. 10-11. In R.B., the evidence established a clearly defined, situation-specific propensity and was thus probative of the actus reus of the offence, which turned on the credibility of complainants’ evidence regarding the assaults. See also: R. v. T.C. (2005), 2005 CanLII 371 (ON CA), 74 O.R. (3d) 100 (C.A.), at para. 56.

86In addition, similar fact evidence may be probative to rebut a defence of consent: R. v. Whitehead, 2004 CanLII 32255 (Ont. C.A.), at para. 20.

87In this case, the similar fact evidence is probative to a material issue, that is, the complainants’ credibility as it relates to the actus reus of the offence and to rebutting the defences of fabrication and consent. The evidence supports an inference that Mr. Burke has a specific propensity to use a weapon to kidnap young women with whom he transacted for sex, over a prolonged period of time, driving them to isolated locations, assaulting and sexually assaulting them for his sexual gratification, and threatening to kill them to prevent them from reporting the incidents. The similar fact evidence is not adduced for the purpose of demonstrating a general disposition to engage in sexual misconduct or criminal behaviour.

(b) Actual or unconscious collusion

88Second, the court must determine if the evidence is tainted by collusion, which undermines the improbability of coincidence between the similar fact evidence and the offences charged. Where there is some evidence of actual collusion, or at least an air of reality to the allegation of collusion, the Crown must satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion, whether actual or unconscious: Handy, at para. 112; R. v. Wilkinson, 2017 ONCA 756, 356 C.C.C. (3d) 314, at para 36.

89The defence alleges actual or unconscious collusion between the complainants. In support of its position, the defence points to the fact that in her statement in May 2016, N.M. told police that the person in a 1986 photograph of A.E. “looked familiar.” Further, N.M. guessed a few different names, including Shona, Shannon, Esther, Angie, and A.E.’s actual first name.

90In the circumstances of this case, as detailed below, I find that there is no air of reality to the assertion of actual collusion but that there is an air of reality to the possibility of unconscious collusion.

91N.M. and A.E. both testified that they do not know each other and have never spoken to each other. When N.M. first went to police in September 1986, she could not have known about the allegations pertaining to A.E., which had not yet occurred. When A.E. went to police in October 1986, she knew only what Mr. Burke told her about “Carmela Holiday.” There is no evidence to suggest that there was an opportunity for them to collude with each other before each went to the police.

92While it is surprising that N.M. guessed A.E.’s first name 30 years after the fact, especially if they had never met, there is no evidence of any actual contact between the two complainants. The evidence is to the contrary. N.M. testified that she did not know anyone by A.E.’s full name, or anyone who went by “Champagne,” “Barbie,” “Snow White,” or “Snow Chaser,” the nicknames that A.E. used at the time. A.E. did not recognize N.M.’s photograph and did not know anyone by the name of “Caramel Holiday,” the name N.M. was using at the time. At the relevant time, the complainants both worked in and frequented the Jarvis and Carlton area of Toronto. N.M. explained that A.E. could have been one of the girls “standing on the street at the time” but that she did not know her. An opportunity to collude is, in itself, insufficient to demonstrate actual collusion. In this case, it is not clear that there was ever an opportunity. As a result, I find that there is no air of reality to the assertion of actual collusion.

93By contrast, I find that there is an air of reality to the defence’s assertion of unconscious collusion. Given that 35 years have passed since the incidents, as well as the frailties of the human memory, it is possible that over the course of time, the complainants’ evidence may have been inadvertently or unconsciously affected by what they previously heard through police or the media.

94The defence submits that N.M. testified to details that were not mentioned in the police synopsis prepared in 1986 (the “1986 Synopsis”),¹ such as Mr. Burke whipping her with a belt and threatening to put her in his transport truck. The defence points to these details as demonstrating that N.M.’s testimony has been tainted by what she has heard about A.E.

95At some point after the warrant was issued for Mr. Burke’s arrest on the charges relating to A.E., the TPS contacted N.M. to tell her that Mr. Burke had “escaped” and that they could not protect her. At trial, N.M. testified that the police told her that Mr. Burke had attacked another woman and that she got away by jumping out of the car. She testified that she was not given any further details but, based on her own experience, assumed that violence was involved.

96In respect of A.E., A.E. knew what Mr. Burke told her, that another woman had agreed to be dominated and that she then reported him to the police for rape. A.E. did not recall Mr. Burke telling her any further details about the incident between him and N.M. In addition, in 1987, police contacted A.E. about testifying at Mr. Burke’s trial in Colorado, but it was not pursued any further. A.E. did not recall the police sharing any details with her. A.E. also testified that some time in 2015, she read a news article about Mr. Burke’s release. A.E. did not recall the details of the article, other than that it described what happened to her and to another person.

97In my view, because of the lengthy period of time that has passed, the contact with the police, and, in A.E.’s case, the news article, it is possible that the complainants unconsciously incorporated details heard from other sources into their respective recollections of the incidents. Moreover, A.E. admitted to memory problems resulting from the passage of time and extended drug use from 2001 for approximately 10 years. As such, there is an air of reality to the defence’s position that the complainants’ evidence has unconsciously been affected by information received through other sources.

98While I have found that there is an air of reality to the assertion of unconscious collusion, I am satisfied that the Crown has demonstrated on a balance of probabilities that the possibility falls short of tainting the evidence so as to render it inadmissible as similar fact evidence. At this stage, I further recognize that the possibility of unconscious collusion remains a factor in my assessment of the weight of the similar fact evidence.

99While N.M. testified to details not mentioned in the 1986 Synopsis, the Synopsis is, by definition, a summary and would not be expected to contain every detail provided by N.M. at the time. With the exception of a few details that will be addressed further in these reasons, N.M.’s testimony was not inconsistent with the account in the 1986 Synopsis. The fact that she gave further details at trial does not mean that her testimony was tainted by what she may have heard about A.E. over the years.

100In A.E.’s case, shortly after she was examined at the hospital, she provided a lengthy written statement that contains extensive details about what transpired with Mr. Burke. Any possibility that A.E. unconsciously incorporated details that she heard from the police or the news article is negated by her written statement, which is far more detailed than her current recollection. At trial, A.E. forgot certain details and mixed up the timing and order of events, as compared to her written statement. Her testimony was otherwise not inconsistent with the statement. I note that I do not rely on A.E.’s written statement for the truth of its contents but only for the limited purpose of rebutting the assertion that her testimony has been tainted by information subsequently received from other sources.

101Moreover, it is also unlikely that A.E. was influenced by what Mr. Burke had told her about N.M. because, based on A.E.’s testimony, his account was largely exculpatory in nature.

102While the defence argues that A.E.’s testimony could have been influenced by the Colorado proceeding against Mr. Burke, no evidence of the underlying facts of that proceeding was adduced at trial. As such, there is no basis upon which to infer that it involved similar facts that were then unconsciously incorporated into A.E.’s account.

103While there are certain inconsistencies with their past accounts, which will be addressed further in these reasons, the complainants’ respective accounts about their interactions with Mr. Burke have not changed significantly over time. More importantly, they have not evolved to become more similar to each other’s accounts. As a result, I find that the Crown has demonstrated on a balance of probabilities that the similar fact evidence is not tainted by unconscious collusion.

(c) Similarities and differences

104Third, the court must consider the similarities and differences between the evidence that forms the basis of the charges and the similar fact evidence sought to be admitted.

105The two incidents are very similar in detail, and in the context and circumstances in which they occurred. The similarities between the allegations made by N.M. and A.E. are as follows:

• Both complainants were young women when the incidents took place;

• Both complainants were standing in the area of Jarvis Street and Dundas Street or Carlton Street when they were approached by Mr. Burke;

• The two incidents are closely proximate in time;

• Both complainants were alone or isolated when they were approached by the Defendant;

• Both complainants were engaged in sex work at the time;

• Mr. Burke produced a knife at some point to compel both complainants to do as he told them;

• Both complainants allege that they were sexually assaulted in the passenger seat of the car and in a remote field;

• Both complainants were held for an extended period of time of at least eleven hours;

• Both complainants were whipped with a belt and had a knife held to them;

• No condom was used with either complainant;

• Mr. Burke told both complainants he wanted to “dominate” them;

• Mr. Burke permitted both complainants to use the telephone;

• Mr. Burke expressed concerns to both complainants about leaving proof and being caught;

• Both complainants testified that Mr. Burke was preoccupied with avoiding jail;

• Mr. Burke repeatedly threatened to kill both complainants;

• Mr. Burke talked to both complainants about his family, including being isolated from his son by his ex-wife;

• Both complainants described Mr. Burke as exhibiting dramatic mood shifts, from furious one moment to calm the next; and

• Both complainants described Mr. Burke as debating whether he would let them go.

106The similarities between the two incidents bear certain distinctive features, such as the use of a belt to assault the complainants and the need to dominate the young women; the Defendant permitting both to use a telephone; and the emotional state exhibited by the Defendant. In addition, the two incidents took place within one month and a half of each other and were thus proximate in time.

107While there are not more than two complainants here, “the admissibility of similar fact evidence is not a numbers exercise.”: R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, at para. 49. The question is whether the accused’s conduct with N.M. was indicative of a situation-specific pattern of behaviour, making it more likely that he engaged in the same conduct with A.E. and vice versa.

108The dissimilarities include that N.M. was taken to Mr. Burke’s apartment, while A.E. was not taken to his apartment but driven around for hours and eventually taken to his truck, and that he dropped N.M. off where she was staying but not A.E. In addition, Mr. Burke did not require that A.E. sit with her legs under his, as he did with N.M. He did not produce or fire a gun, as N.M. alleges.

109In my view, the differences are few and relatively minor in comparison to the remarkable degree of similarity between the two incidents. Moreover, because the Crown is not relying on the similar fact evidence to support an inference of identity, the degree of similarity required is less than would be required in those circumstances.

(d) Strength of the evidence

110Fourth, the court must consider the strength of the evidence that the similar acts occurred. The similar fact evidence must be reasonably capable of belief: Handy, at paras. 134-136. The evidence must also be capable of supporting the inferences identified by the Crown as supported by the similar fact evidence: Handy, at paras. 94-96.

111In this case, and as will be detailed further in these reasons, the evidence of similar acts meets the threshold of being reasonably capable of being believed and of logically supporting the inferences sought by the Crown.

112Based on the foregoing analysis of the four inquiries identified in Bent, as well as the Handy factors, I find that the probative value of the similar fact evidence is high.

Prejudicial effect

113The risk of moral prejudice, reasoning prejudice, and confusion of the issues by the trier of fact are lessened when the other acts alleged are charges that are already before the court on a multi-count indictment: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 69. Similarly, in a judge-alone trial, the danger that a conviction will be rooted in reasoning or moral prejudice is significantly lessened: R. v. Cresswell, 2009 ONCA 95, 81 W.C.B. (2d) 572, at para. 10

114In my view, the prejudicial effect of admitting the similar fact evidence is minimal. The evidence does not distract from the offences charged. The similar fact evidence was heard in any event and did not increase trial time. Any potential moral prejudice can be counterbalanced by an instruction to myself, as trier of fact, to consider the similar fact evidence solely for the purpose for which it is tendered and to refrain from any prejudicial reasoning based on a general disposition or propensity. In addition, the N.M. allegations and the A.E. allegations are of similar gravity. Neither incident is likely to overwhelm the assessment of the other incident.

115The defence raises as an issue the destruction of the original file in relation to N.M. In my view, this issue goes to the weight to be given to the similar fact evidence, as opposed to its admissibility. I will consider the impact of this lost evidence when assessing N.M.’s credibility and reliability.

Weighing the probative value and the prejudicial effect

116In my view, given the degree of specificity and similarity in the evidence of each complainant, the probative value is very high because it supports a clearly defined, situation-specific propensity on the part of Mr. Burke. Moreover, the evidence is highly relevant to the issues of fabrication and consent. The probative value outweighs the prejudicial effect, which I have found to be minimal in the circumstances.

117Accordingly, I find that the similar fact evidence admissible across the counts on the indictment.

118I instruct myself to consider the similar fact evidence solely for the purpose for which it is tendered (as summarized above at para. 87), and not for the purpose of engaging in any prejudicial reasoning based on a general disposition or propensity of the Defendant to engage in sexual misconduct. I further instruct myself to consider the possibility of collusion in my assessment of the weight of the similar fact evidence in my ultimate decision on the whole of the evidence: R. v. F. (J.) (2003), 177 C.C.C. (3d) (Ont. C.A.), at para. 86.

The Lost Evidence Application

Procedural Background

119Mr. Burke brought an application to stay the proceeding on the basis that the loss of certain evidence, as detailed further below, results in a breach of his right to a fair trial under s. 7 of the Charter.

120At trial, both the Crown and defence agreed that based on the Court of Appeal’s decisions in R. v. Scott, 2002 CanLII 44950 (ON CA), 159 O.A.C. 283 (C.A.), at para. 7, and R. v. Cisar, 2014 ONCA 151, 307 C.C.C. (3d) 336, at para. 32, the lost evidence application should be heard after a decision on the merits because, in the event that the Crown fails to meet its burden of proof beyond a reasonable doubt, Mr. Burke would be entitled to an acquittal and not simply a stay of proceedings. See also, R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 137 O.A.C. 336 (C.A.), at para. 18.

121However, in R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, at paras. 65-66, the Court of Appeal held that the lost evidence must be taken into consideration before making any findings of guilt. A trial judge must consider whether the lost evidence compromises the fairness of the trial and is so prejudicial that a stay is warranted, in which case, no finding of guilt should be made. Alternatively, if a stay is not warranted, a trial judge should consider whether a lesser remedy is appropriate before considering whether the accused is guilty. If the lost evidence should be factored into the assessment of the credibility and reliability of the complainants’ testimony, this assessment should be performed in deciding whether the accused is guilty. In this regard, see also R. v. Bero.

122As a result, on June 22, 2021, I advised the parties that the lost evidence application would be heard before a decision on the merits. The lost evidence application was heard on September 8 and 10, 2021.

123In support of his lost evidence application, Mr. Burke swore an affidavit and was cross-examined at the hearing of the application. The Crown relied on the affidavit evidence of Detective Constable Katherine Stephenson, the officer in charge of the investigation since August 31, 2015, when the TPS was advised that Mr. Burke would be returned to Canada, and Margaret Entwistle, a former TPS officer who was the warrant officer at 11 Division when the charges relating to N.M. were withdrawn. Both were cross-examined at the hearing of the application.

124The evidence of these three witnesses is evidence on the lost evidence application, and not on the trial proper. I note specifically that Mr. Burke chose not to testify at trial, as he was entitled to do. I instruct myself to refrain from considering his evidence, and the evidence of DC Stephenson and Ms. Entwistle, on the merits of the trial proper.

125Pursuant to the principles articulated in Sheng, however, my findings on the lost evidence could also give rise to reasonable doubt and may also be taken into consideration in my assessment of the credibility and reliability of the two complainants’ evidence.

What Evidence Was Lost?

N.M.

126In October 2005, the Crown withdrew the charges against Mr. Burke in relation to N.M. The Crown brief was then purged. The only documents that remain are: the 1986 Synopsis, described earlier in these reasons; supplementary reports; the property report listing the items seized from Mr. Burke’s residence; the SAEK and other records from Women’s College Hospital.

127In addition, blood samples and slides of samples from the SAEK taken in September 1986 had been submitted and stored at the Centre of Forensic Science. The samples were re-examined in May 2016, and while semen was detected, no DNA profile was detected.

128Because the Crown brief was purged, the following items no longer exist: N.M.’s original statement to police, N.M.’s clothing, photographs of N.M., photographs from the execution of the search warrant at Mr. Burke’s apartment, property seized under the search warrant, and the memobook notes of all of the TPS officers involved. Mr. Burke deposes that he made a statement to police when he was arrested on September 18, 1986. If Mr. Burke made a statement, it no longer exists.

129DC Stephenson contacted the officers involved² and confirmed that they do not have their memobook notes.

A.E.

130Once the charges relating to A.E. were laid, they were never withdrawn and a Canada-wide warrant for Mr. Burke’s arrest remained active on CPIC. The TPS case file relating to A.E. continued to exist, including the following records: A.E.’s original written statement, photographs of A.E., photographs of the truck stop that A.E. identified, the SAEK from Women’s College Hospital, and will-say statements of five police officers involved in the investigation, including the officer in charge, Harry McClenaghan.

131However, the following items no longer exist and could not be located:

• A.E.’s clothing;

• Records from the Bowmanville Hospital where A.E. was initially taken by DPS officers;

• Memobook notes from one of the two DPS officers who initially assisted A.E.; and

• Memobook notes of seven of eight TPS officers involved in the investigation.

132In her affidavit, DC Stephenson details her efforts to locate the missing documents, including contacting the officers who were involved, who had all retired.³ DC Stephenson was able to obtain memobook notes from one TPS officer, Jackie Evans, and one DPS officer, Jim Adams. The other TPS officers had turned their memobooks over to Toronto Police Archives, where they were later purged.

133In addition, slides of samples from the SAEK taken in October 1986 had been submitted and stored at the Centre of Forensic Science. The samples were re-examined in May 2016, but while semen was detected, no DNA profile was detected.

The Parties’ Positions

134Mr. Burke takes the position that the missing evidence was lost because of unacceptable negligence on the part of the TPS, causing serious prejudice to his ability to make full answer and defence, thus infringing on his right to a fair trial. The defence submits that under the circumstances, the only appropriate remedy is a stay.

135The Crown submits that, with the exception of certain items, there was no unacceptable negligence. The Crown further submits that Mr. Burke has failed to demonstrate any actual prejudice to his right to make full answer and defence. The Crown’s position is that, even if Mr. Burke is able to demonstrate actual prejudice, a stay of proceedings ought not to be ordered.

Was There a Breach of Mr. Burke’s Rights Under Section 7 of the Charter?

The Applicable Principles

136The Supreme Court of Canada articulated the proper approach to lost evidence in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680. The principles enunciated by the Supreme Court were summarized by Roscoe J.A. in R. v. B. (F.C.), 2000 NSCA 35, 182 N.S.R. (2d) 215, at 547-48, and applied by the Ontario Court of Appeal in R. v. Bero as follows:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.

(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.

(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor.

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 137 O.A.C. 336 (C.A.) at para. 30.

137Thus, as Code J. stated in R. v. Hassan, 2014 ONSC 1345, 304 C.R.R. (2d) 58, at para. 10, lost evidence can give rise to three distinct types of Charter breaches: (i) where relevant evidence is lost due to unacceptable negligence; (ii) where relevant evidence was lost due to an abuse of process, such as deliberate destruction of evidence; and (iii) where unacceptable negligence or abusive conduct cannot be established, but the loss of some particularly important piece of evidence causes sufficient prejudice to the accused’s fair trial rights that it amounts to a s. 7 breach.

138In this case, the first and third types of Charter breach are at issue.

139In R. v. La, at paras. 24-25, Sopinka J. stated that where the Crown has met its disclosure obligation, it will only be in “extraordinary” cases that the defence can prove that the loss of evidence is so prejudicial that it amounts to a breach of s. 7.

140In determining whether the loss or destruction of evidence amounts to unacceptable negligence, the standard is not perfection, but whether the police conduct was reasonable based on their information at the time. If evidence was destroyed pursuant to a police policy, and the policy was reasonable, the reasonableness of the loss of evidence can be supported by showing adherence to the policy: R. v. La, at para. 21, R. v. B.(F.C.).

Was the Evidence ‘Lost’ Because of Unacceptable Negligence?

N.M.

141It is undisputed that the original Crown brief relating to N.M. was purged and that it contained relevant information. The Crown maintains that the brief was not lost due to unacceptable negligence because the TPS purged the brief in the ordinary course of business following the withdrawal of the charges by the Crown.

142As noted earlier, after being released on bail, Mr. Burke absconded to the United States, where he was convicted and sentenced to a lengthy prison term in 1988.

143DC Stephenson located correspondence that reflected that in 2000, the U.S. authorities advised Detective Harras of the TPS International Assistance Unit that Mr. Burke remained in custody in Colorado. DC Harras was advised that Mr. Burke’s earliest parole date was May 16, 2013, but that it was unlikely that he would be granted parole. His next possible release date was March 29, 2040, for good behaviour. DC Harras requested that the Canada-wide warrant remain on CPIC. The TPS requested that the warrant remain active on CPIC in 1991, 1993, 1995, 2001 and 2003.

144In October 2005, the crown attorney withdrew the charges against Mr. Burke pertaining to N.M., as part of a withdrawal list. The policy in effect at the time was that the Crown brief would be purged after seven years, plus the year of disposition. According to the policy, the Crown brief would have existed until 2013.

145In 2015, when DC Stephenson was advised that Mr. Burke would be returned to Canada, she looked into the charges relating to N.M. The charges relating to N.M. were reinstated against Mr. Burke in July 2016. While Mr. Burke was originally charged with forcible confinement in 1986, in 2016, a new charge of kidnapping was laid.

(a) Margaret Entwistle’s Evidence

146Ms. Entwistle was a police officer from 1987 to 2015. She was a warrant officer with the TPS from January to October 1991 and from January 2003 to October 2007, and was at 11 Division in 2005, when the charges relating to N.M. were withdrawn. Ms. Entwistle testified regarding the policy and procedure in place at the time regarding the withdrawal of warrants and purging of briefs.

147Ms. Entwistle’s evidence is that during the relevant time period, the Crown brief was stored in hard copy only. According to the policy in place at the time, the warrant officer reviewed outstanding warrants as they were about to expire on the CPIC system. The viability of the criminal cases for which there were outstanding warrants were reviewed taking into consideration the seriousness of the charges, the existence of other outstanding warrants for the accused, whether the accused or witnesses were deceased, the age and whereabouts of the accused, the availability of witnesses, and the age of the case. After reviewing the brief, if the warrant officer determined that there was no reasonable prospect of conviction or that it was no longer in the public interest to proceed, the warrant officer would submit a supplementary report for the case to be withdrawn. The report would be submitted to the Detective Sergeant for approval. The police would notify CPIC to have the charges removed. The Crown brief would then be taken to the courthouse for a crown attorney to review. If the crown attorney agreed, they would have the charges withdrawn at the courthouse where the information was filed. The information would be put in the brief by a court officer and the crown attorney would have the charge withdrawn in court. If the crown attorney disagreed, the brief would be returned to the Division and a separate supplementary report would be submitted and the charges would be re-entered on CPIC.

148After the withdrawal of the charges, according to the policy, the Crown brief would be retained at the division for a period of seven years plus the current year. At the end of that time period, the brief would be sent to the records department of the TPS and purged by the Criminal Investigation Bureau clerk.

149Ms. Entwistle’s testimony is supported by Municipality of Metropolitan Toronto By-Law No. 145-80 and City of Toronto By-Law No. 689-2000 respecting the retention of records.

150Ms. Entwistle testified that, based on a supplementary report dated May 28, 2003, she recommended that the charges remain active on CPIC at the time. The Crown brief must have existed at the time, because Ms. Entwistle had to review it to make the supplementary report.

151Ms. Entwistle testified that she believed that the charges were subsequently withdrawn inadvertently because, given the serious nature of the charges, she would not have recommended that the charges be withdrawn. In addition, the entry in the warrant ledger had not been highlighted, as was the practice when charges were withdrawn or when warrants had been executed. Ms. Entwistle surmised that the intention was to withdraw a less serious charge for failure to comply, which had been highlighted in the ledger.

152The defence relies on Ms. Entwistle’s testimony to argue that the withdrawal of the charges was inadvertent and therefore, there was unacceptable negligence in purging the Crown brief.

153The Crown submits that whether the charges were withdrawn inadvertently is irrelevant to the lost evidence application because the question on the application is not whether the charges were improperly reinstated, but whether the Crown brief was lost as a result of unacceptable negligence. The Crown takes the position that Mr. Burke cannot look behind the withdrawal and reinstatement of the charges against him because he has not brought an abuse of process application in respect of the reinstatement of the charges.

(b) Findings

154I agree that the issue of whether the charges were withdrawn inadvertently and whether they ought to have been reinstated is not before me.

155The undisputed evidence is that in 2000, the TPS was informed that Mr. Burke would be in custody in Colorado for a very lengthy term. The information that the TPS had was that Mr. Burke was unlikely to be released on his early parole date in May 2013 and that his next possible release date was in 2040. By that time, Mr. Burke would be 87 years old and would have served a 52-year sentence.

156Contrary to the information that had been received, Mr. Burke was granted parole in 2015. The Crown submits that the TPS could not have anticipated this change in policy, however, there is no evidence that Mr. Burke’s release was resulted from a change in policy. Based on the available evidence, all that can be inferred is that Mr. Burke’s release in 2015 was unexpected.

157While Ms. Entwistle believed that the charges were withdrawn inadvertently because the entry in the ledger was not highlighted, it is also possible that someone had inadvertently failed to highlight the ledger entry.

158More importantly, although Ms. Entwistle testified that she would not have recommended that the charges be withdrawn, that decision was ultimately up to the Crown. There is no basis to look behind the Crown decision, since Mr. Burke has not brought an abuse of process application. In any event, the Crown’s decision to withdraw charges is subject to a high degree of deference. Given that the TPS understood that Mr. Burke would not be released until 2040, and the charges arose from allegations dating back to 1986, it cannot be found that the decision to withdraw the charges was arbitrary or unreasonable. In addition, at the time, the TPS had lost contact with N.M., who had made the initial complaint under a false name.

159Whether the charges were withdrawn inadvertently or intentionally, given the improbability of Mr. Burke’s release, the perceived necessity and utility of continuing to keep custody of the Crown brief was minimal, both in 2005, when the charges were withdrawn, and in 2013, when the Crown brief was likely purged.

160Once the charges were withdrawn, the TPS acted reasonably in purging the Crown brief according to the existing policy, as articulated in the applicable by-laws. The policy itself was also reasonable, especially at a time when records were stored in hard copy at the Division, as opposed to electronically. It was necessary to purge files regularly to ensure that existing briefs could be kept in an organized manner and located when needed.

161In R. v. B.(F.C.), the Crown brief was destroyed pursuant to a purging policy when charges were no longer outstanding. In that case, the charges were not pursued because the complainant was a reluctant witness. The Court of Appeal, focussing on the perceived relevance of the brief when it was purged, found that there was no unacceptable negligence.

162In my view, the TPS was not required to retain the file indefinitely where there was no prospect of the charges proceeding. When the Crown brief was purged, the perceived necessity of maintaining custody of the brief was low. The charges were withdrawn and there was no likelihood that Mr. Burke would return to Canada for the foreseeable future or, given the age at which he was expected to be released, at all.

163Even if the withdrawal of the charges, and therefore the purging of the brief, were inadvertent, this does not necessarily result in a finding of unacceptable negligence. In R. v. La, at paras. 29-30, where the taped statement was inadvertently lost but the police took reasonable steps to locate it, the court held that there was no unacceptable negligence.

A.E.

164In respect of A.E., the Crown concedes that the clothing and the DPS and TPS memobook notes were lost as a result of unacceptable negligence. Therefore, in respect of that evidence, Mr. Burke’s s. 7 rights have been breached.

165The Crown disputes that the Bowmanville Hospital records were lost as a result of unacceptable negligence.

166DC Stephenson made efforts to obtain the records from the Bowmanville Hospital. She discovered that it had subsequently become Lakeridge Hospital and that none of the files from 1986 remained in existence.

167In my view, the loss of the Bowmanville Hospital records did not result from unacceptable negligence by the police or Crown. The Bowmanville Hospital no longer exists. The records date back to 1986 and were in the possession of a third party. While this does not necessarily excuse the police or Crown from its disclosure obligations, it is relevant to the degree of care that would be expected from the police in retaining the documents.

168Moreover, while A.E. was initially taken to the Bowmanville Hospital by DPS officers, the SAEK was conducted at Women’s College Hospital in Toronto. The Bowmanville Hospital records were less relevant than the Women’s College Hospital records, which were preserved and disclosed to the defence. Had A.E. undergone a SAEK at the Bowmanville Hospital, the expectation that the evidence would be preserved would be higher. Given their perceived relevance at the time, it was not negligent for the TPS to fail to obtain and retain the Bowmanville Hospital records. At all times, the SAEK remained available. Moreover, Mr. Burke had fled to the United States and was sentenced to a lengthy prison term in Colorado. The likelihood of the prosecution proceeding, and therefore the need for the evidence, was low.

169In the circumstances, where over 30 years ago, A.E. was treated briefly at the Bowmanville Hospital, the loss of the evidence did not result from unacceptable negligence. Considering the perceived relevance of the records at the time, I am satisfied that the TPS took reasonable steps to preserve the evidence. Because the Crown has offered a satisfactory explanation for the loss of the Bowmanville Hospital records, I find that they were not lost due to unacceptable negligence.

Is There Actual Prejudice to Mr. Burke’s Right to Make Full Answer and Defence?

170Where the Crown has demonstrated that there was no unacceptable negligence, the onus shifts to the accused to establish a breach of s. 7 by showing that the loss of evidence resulted in actual prejudice: R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 71. Therefore, I must consider whether the loss of evidence is so prejudicial to Mr. Burke’s right to make a full answer and defence that it is a breach of s. 7.

171Where a breach of s. 7 has been established, the degree of prejudice to the accused’s fair trial rights is also relevant to the issue of whether the appropriate relief is a stay of proceedings. The analysis under this branch thus overlaps with the s. 24(1) analysis.

172As the Court of Appeal found in R. v. Sheng, at para. 46, “[w]hen evidence is lost, assessing prejudice is invariably problematic and, to some degree, speculative.” See also: Bero, at para. 49. It is not sufficient that the accused has been deprived of relevant evidence. In R. v. Bradford (2001), 2001 CanLII 24101 (ON CA), 52 O.R. (3d) 257 (C.A.), at para. 8, the Court of Appeal stated that “[a]ctual 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.”

N.M.

173Because I have found no unacceptable negligence in the loss of the Crown brief pertaining to N.M., I must also consider whether the lost evidence is so prejudicial to Mr. Burke’s right to make full answer and defence that his right to a fair trial under s. 7 has been infringed.

174The defence submits that the lost evidence causes actual prejudice to Mr. Burke in the following ways: (i) the lost evidence may include inconsistencies in N.M.’s statements on which the defence is unable to cross-examine; (ii) the lost evidence may include exculpatory evidence, including Mr. Burke’s own statement, of which he has little or no recollection; and (iii) the lost evidence has impeded Mr. Burke’s ability to make decisions about the nature of his defence, such as whether to call evidence or to testify.

(a) N.M.’s 1986 Statement

175The defence submits that Mr. Burke is significantly prejudiced by the inability to cross-examine N.M. on her original statement made in 1986. The defence’s position is that this limited their ability to attack her credibility.

176In Bradford where the complainant’s initial statement to police was lost as a result of unacceptable negligence, the Court of Appeal weighed the following considerations in assessing the degree of actual prejudice to the accused:

• The use that the defence might have made of the previous statement, in light of the defence that was actually put forward at trial;

• The fact that the statement possibly contained information that was either helpful or unhelpful to the defence; and

• Assuming the statement would have been helpful to the defence, the presence of other statements provided by the complainant that could make up for the prejudice of the single lost statement.

177The Court of Appeal also identified certain considerations that have emerged from the case law as relevant to assessing the prejudice arising from a lost statement, in the context of determining whether a stay is warranted (at para. 9):

• Whether the investigating officers who took the statement were available for questioning;

• Whether the complainant made other statements prior to trial that the defence can use to attack her credibility;

• Whether the Crown concedes that proposed substitute evidence is a statement of the complainant and may be used for the purposes of cross-examination of the complainant;

• Whether the statements that do exist appear to contain the same amount of detail as the lost statement;

• The extent of the complainant’s present ability to recall the contents of the earlier statements;

• The complainant’s present ability to recall the details surrounding the alleged incident;

• Any apparent or potential inconsistencies in the complainant’s trial testimony or between her other statements and her evidence at the preliminary hearing;

• Whether the accused was made aware of the contents of the lost evidence before its destruction or disappearance; whether the Crown gave any undertaking to the accused at the time that matters would not proceed with the result that the accused did not retain his own records; and

• What other witnesses had to say at the time in support or contradiction of the complainant’s allegations.

178The Crown submits that there are a number of other statements on which the defence could cross-examine N.M.: the 1986 Synopsis, a lengthy statement taken in May 2016, an additional audio statement in July 2016; and N.M.’s testimony at the preliminary inquiry. The Crown also points to the other records from 1986, such as the SAEK, supplementary reports and property report. The Crown’s position is that the ability to cross-examine on this evidence substantially mitigates any prejudice suffered by Mr. Burke.

179The following considerations, as identified in Bradford, would tend to weigh toward a finding that the loss of N.M.’s statement caused prejudice to Mr. Burke’s ability to make full answer and defence:

• The investigative officers who took the statement were not available for questioning;

• The lost statement likely contained more detail than N.M.’s 2016 statements, simply by virtue of the time that passed since the alleged incident;

• The lost statement was likely to contain more detail than the 1986 Synopsis, which was by definition a summary;

• The lost statement was not disclosed to Mr. Burke before it was lost; and

• There are no other witness statements that would support or contradict N.M.’s allegations.

180On the other hand, this was not a case where a contemporaneous statement was lost and the complainant had little or no recollection of the allegations. In her testimony, N.M. recalled extensive detail about the alleged incident. The availability of the 1986 Synopsis, SAEK, supplementary reports, and property report go some way to diminishing the prejudice to the defence. The SAEK recorded certain contemporary utterances by N.M. As a result of those records, there was a contemporaneous account of the allegations as reported at the time. The defence was also able to cross-examine N.M. on her other statements, as identified by the Crown. In addition, the Crown conceded that the 1986 Synopsis could be used as N.M.’s statement for the purposes of cross-examination.

181However, despite the Crown’s concession, on cross-examination, N.M. disputed that the 1986 Synopsis was an accurate reflection of her statement to police. When inconsistencies between her testimony and the 1986 Synopsis were put to her in cross-examination, N.M. disavowed the statements in the Synopsis and stated that she could not be responsible for what someone else wrote based on an interview. For example, N.M. testified that she got into the vehicle because Mr. Burke showed the knife and threatened her when she opened the car door. N.M. rejected the account in the 1986 Synopsis, which stated that she entered Mr. Burke’s vehicle voluntarily, that they went to a parking lot to discuss price, and that it was only later that he produced a knife. The question of whether N.M. entered the vehicle voluntarily does not necessarily negate her detailed account of the subsequent sexual assaults, threats and transfer at knife point. However, because N.M. testified that the 1986 Synopsis did not accurately record her statement, Mr. Burke was unable to impeach the credibility or reliability of N.M.’s evidence on this point.

182Another example is the allegation in the 1986 Synopsis that Mr. Burke robbed N.M. by grabbing her purse and taking money from it. At trial, N.M. testified that Mr. Burke threw money into her purse and that she did not recall making the allegation of theft. However, in 1986, Mr. Burke was charged with robbery, which suggests that N.M. made the allegation at the time. If the allegation was in N.M.’s original statement and if the defence was able to put it to her on cross-examination, it could have cast doubt on the reliability or credibility of her evidence. The two examples serve to demonstrate that cross-examination on the 1986 Synopsis could not equal cross-examination on N.M.’s own statement. Because N.M. could disclaim the statements in the Synopsis as an inaccurate account of what she had told police, the defence’s ability to impeach N.M.’s credibility, on the basis of the 1986 Synopsis, was curtailed.

183Moreover, I agree with the defence’s position that the ability to cross-examine N.M. on statements made in 2016 differs from the ability to cross-examine on a contemporaneous statement. Because of the proximity in time, it is more likely that N.M.’s testimony at trial would be more consistent with a statement given in 2016 than with her lost 1986 statement. At the same time, I recognize that it is as likely that the lost statement would be more favourable to the prosecution than to the defence. At the very least, N.M. would have been able to refresh her recollection, which could have assisted her in explaining some of the inconsistencies.

184Because the issues in this case revolve almost entirely around the credibility and reliability of the complainants’ evidence, the defence’s ability to cross-examine effectively is of utmost importance. In my view, the inability to impeach N.M.’s credibility, because the original 1986 statement was lost, thus resulted in actual prejudice to the defence ability to make full answer and defence.

185I also agree with the defence submission that where the Crown seeks to rely on similar fact evidence across the charges, the potential for prejudice is augmented. In my view, while I have granted the Crown’s similar fact application, the lost Crown brief is relevant to the weight to be given to the similar fact evidence. This will be addressed further below.

186At this stage, my finding of prejudice to Mr. Burke’s ability to make full answer and defence is limited to a finding that his s. 7 rights have been breached. I will consider the degree of prejudice further when addressing the issue of whether a stay should be ordered.

(b) Clothing, Seized Evidence, Photographs, and Memobook Notes

187In respect of the clothing, seized evidence, photographs and memobook notes that were all lost as a result of the purging of the Crown brief, I find that the defence has failed to demonstrate actual prejudice.

188Because the identity of the accused is not in dispute, the ability to have the clothing tested for DNA would not assist the defence. The samples that were taken at the time produced no conclusive results. The defence has advanced no other basis on which the loss of the clothing could cause actual prejudice.

189The items seized from Mr. Burke’s apartment are similarly unlikely to have assisted the defence. Because the property report lists the items seized, the defence knows exactly what items were removed from Mr. Burke’s apartment. This included five sofa cushions and ten knives. The defence has not advanced any basis on which to find that the loss of those items resulted in actual prejudice to Mr. Burke’s defence.

190The loss of the photographs of N.M.’s injuries does not result in prejudice to the defence because the SAEK provided a description of the injuries to N.M. In view of the description of the multiple areas of trauma in the SAEK, it is unlikely that the photographs would have shown no injuries. It is more likely that the photographs would assist the prosecution than the defence.

191The defence submits that the loss of the photographs from the execution of the search warrant was prejudicial because Mr. Burke was unable to show that there was no bathtub in his apartment, which would refute N.M.’s account that she woke up in the bathtub with Mr. Burke holding a knife to her. I recognize that the Crown bears the burden of proving all of the elements of the charges against Mr. Burke. However, if Mr. Burke wanted to undermine N.M.’s credibility by showing that there was no bathtub in the apartment, it was open to him to do so through other means. In his testimony on the application, Mr. Burke stated that the same landlord was still at the property. He could have called the landlord as a witness. Moreover, while the 1986 Synopsis is not admitted for the truth of its contents, according to the Synopsis, N.M. told police that Mr. Burke threatened to fill the tub, put her in it and stab her. As a result, there is no inconsistency between the prior statement in the 1986 Synopsis and N.M.’s testimony at trial on this point. On cross-examination, the defence did not put to N.M. that there was no bathtub in Mr. Burke’s apartment.

192The defence submits that the loss of the officers’ memobook notes results in actual prejudice because they might have recorded statements made by N.M. that would be inconsistent with her evidence at trial. In my view, this does not constitute actual prejudice because the possibility that N.M. made any inconsistent statements is purely speculative. It is as likely or more likely that she made statements that would assist the prosecution.

193For the foregoing reasons, given the other evidence available to the defence, the absence of the physical evidence, photographs and memobook notes did not result in actual prejudice to the defence.

(c) Mr. Burke’s Statement

194Mr. Burke’s evidence is that when he was arrested on September 18, 1986, he gave a lengthy statement to police. Mr. Burke submits that based on the passage of time and his age, he no longer recalls the specifics of his statement, but recalls that it was exculpatory in nature. The defence relies on the fact that Mr. Burke was granted bail in September 1986 as support that he provided the TPS with information favourable to him.

195In support of the likelihood that Mr. Burke gave a statement in 1986, the defence relies on the fact that Mr. Burke gave an almost 400-page statement when he was brought back to Canada in 2015 as indicative of Mr. Burke’s expressive nature. The defence also relies on Mr. Burke’s behaviour in court, where he frequently intervened and sought to be heard, including to give evidence, despite being represented by defence counsel and having amicus present. By Mr. Burke’s in-court behaviour, I am referring solely to Mr. Burke’s conduct when he was not testifying. I decline to rely on Mr. Burke’s in-court behaviour to find that he was more or less likely to behave in a certain manner in 1986. It would be entirely inappropriate to rely on Mr. Burke’s in-court conduct to make negative findings against him and I find it no more appropriate to rely on such conduct to make findings in his favour.

196The likelihood that Mr. Burke gave a statement in 1986 turns on Mr. Burke’s credibility. In his affidavit, Mr. Burke deposed as follows:

• He gave a statement when arrested on the charges relating to N.M. in September 1986;

• He recalls that he was questioned by TPS officers in an interview room for approximately two hours;

• He was advised of the specific allegations relating to N.M. and provided detailed responses to them;

• He recalls signing a statement or the officer’s memobook;

• He does not remember how and when he met N.M. and A.E.;

• He gave police the name and a description of N.M.’s drug dealer with whom he had an altercation over a drug dispute but no longer recalls the name;

• He recalls that he was able to account for his whereabouts during the time period he was allegedly assaulting N.M.; and

• Because of his age (he is now 68 years old) and the passage of time, he does not remember what he does not remember.

197Contrary to his affidavit evidence, on cross-examination, Mr. Burke gave detailed testimony about the subjects that he said he no longer recalled. Mr. Burke testified that he met A.E. in February or March 1986 and N.M. in July or August 1986. Both times, he was driving with his brother, Robert Burke, who introduced them. He remembered that he was driving a yellow pick-up truck and that they were on Jarvis Street.

198In respect of N.M.’s allegations, Mr. Burke testified to his version of events. He testified that N.M. came to his apartment with a bag of drugs, which she then consumed. She told him she could get drugs that he could sell to other truck drivers. Mr. Burke testified that he then kicked N.M. out of his apartment. The next day, N.M. returned with her drug dealer, “Claude.” Mr. Burke gave a detailed physical description of Claude, including that he had blondish, long, stringy hair, that he was approximately six feet tall, and spoke with a slight French accent. Claude wanted $800 for the cocaine or crack that N.M. told him that Mr. Burke consumed when they were together. He testified in great detail about an altercation with Claude, including which other residents of the building were watching and that the landlord’s German shepherd dog was barking at the time. Mr. Burke testified that he won the fight and told Claude and N.M. to leave, and that Claude threatened to kill him. Mr. Burke alleges that it was only after the fight that N.M. went to the police to make her allegations. On cross-examination, the defence had put to N.M. that she went back to Mr. Burke’s apartment with her partner, R.W., or another person over the $800 drug debt. The defence did not cross-examine N.M. about an individual named Claude.

199The detail to which Mr. Burke testified raises serious questions about the veracity of the statements in his affidavit. His affidavit is entirely self-serving. He claims that he does not recall details due to his age and the passage of time. However, Mr. Burke’s testimony demonstrates that he recalls certain details when it serves his purpose. For example, Mr. Burke deposes in his affidavit that he does “not recall ever being confronted in 1986 with any allegations regarding the firing of a gun or of a kidnapping as described by [N.M.] in her interviews in 2015.” The suggestion is that the firearm allegation is a recent fabrication. N.M. neglected to mention the firearm in her 2016 statement to the TPS and then contacted the TPS to make a second statement when she recalled the firearm. It is not credible that Mr. Burke has no recollection of the exculpatory statements that he made but that he recalls not being told about the firearm and kidnapping allegations. Moreover, contrary to the allegation of recent fabrication, the firearm allegation was in the 1986 Synopsis.

200Moreover, Mr. Burke gave substantial testimony about the workings of the human memory. I do not accept Mr. Burke’s testimony as to how the human memory works in general, because he is not qualified to give expert evidence on the subject matter. However, certain statements made by Mr. Burke are revealing as to how he understands his own memory to work:

I know that during the 30 years that I was in the United States, many, many times, I gone [over] them – I went over the scenarios in my mind. Some of these things I probably got in my brain, ten years later, you don’t remember that as something you guessed at. You remember it as a memory. Twenty years later, it’s carved in stone. Thirty years later you’re telling people that’s what it was. Now if I find out that this guy was a Caucasian, or I mean a Mulatto or something, it wouldn’t surprise me because you invent things. Your mind edits things over 30 years. It just does that, it protects you, your ego, that’s what it does.

201At another point, on cross-examination, Mr. Burke testified as follows:

Q. All right so you – so you’re saying that your memory may create things in order to protect you when you’re confronted with allegations, is that a, a fair summary of what you’ve said?

A. Of course it does.

202Mr. Burke’s testimony that he remembered seeing N.M. and A.E. together is illustrative of the tendency he describes. Mr. Burke testified that he saw N.M. and A.E. together, but later admitted that he believed he saw them together but did not know if he actually saw them together.

203There are other examples of Mr. Burke’s selective recollection. When asked about the scratch on his face during the 2015 interview with Detective Thomas of the TPS, Mr. Burke responded that he did not remember being arrested, likely to avoid any further questioning about the scratch. On cross-examination, however, Mr. Burke volunteered that the scratch on his face was from the fight with Claude, who was wearing many rings. It is likely that Mr. Burke felt the need to explain the scab because N.M. testified that she scratched him on the face when they struggled and A.E. testified that he showed her where N.M. had scratched him. On cross-examination, Mr. Burke stated that when he said he did not remember the arrest, he was speaking “metaphorically.”

204Moreover, on cross-examination, Mr. Burke denied ever hitting A.E. or N.M., despite having admitted to Detective Thomas that he might have hit them. Mr. Burke also denied having sexual intercourse with N.M. and A.E., despite statements to the contrary in his interview with Detective Thomas.

205It is worth noting that Mr. Burke has demonstrated a willingness to fabricate stories in an attempt to help himself. On cross-examination, Mr. Burke confirmed that while in custody in Colorado, he confessed to killing five women in Toronto and burying them near an abandoned house in Oshawa. Mr. Burke constructed an elaborate tale of being a serial killer that centered around the number seven. Mr. Burke admitted that he concocted this confession because he was desperate to get out of prison in Colorado and wanted to be returned to Canada.

206Similarly, while on bail, Mr. Burke fled to the U.S. and assumed a false identity. When he was arrested, he gave the false name of Darryl Wayne Jones. His true identity was only confirmed when the U.S. authorities contacted the TPS.

207On cross-examination on the lost evidence application, Mr. Burke testified that he was not in Toronto on the date of the alleged assault against N.M. Mr. Burke testified that at the time of the alleged assault, he was working as a truck driver for a company called Magnum and that he had just returned from driving a load of carpet to New York state when he was arrested by the TPS. Again, his recollection was far more detailed than stated in his affidavit.

208The Crown, relying on R. v. Cleghorn, 1995 CanLII 63 (SCC), [1995] 3 S.C.R. 175, submits that the defence was required to give notice of their intent to adduce alibi evidence. The Crown further submits that had notice been given, it would have investigated the alibi by interviewing Magnum employees, among other things.

209The defence disputes that Mr. Burke’s testimony constitutes alibi evidence. Because the evidence was given on the lost evidence application, and not at the trial, it is not, strictly speaking, evidence that would be “determinative of the final issue of guilt or innocence”: see R. v. Hill (1995), 1995 CanLII 271 (ON CA), 25 O.R. (3d) 97.

210At this stage, I reiterate that Mr. Burke was under no obligation to testify and I do not rely on his evidence in determining whether or not the Crown has met its burden of proof on the alleged offences. However, solely for the purposes of assessing his credibility on the lost evidence application, it is worth noting that Mr. Burke’s evidence that he was not in Toronto on the dates in question was only given on cross-examination on the lost evidence application. Mr. Burke did not mention the alibi when he was interviewed at length by Detective Thomas in 2015. When this was put to Mr. Burke on cross-examination, he responded that Detective Thomas did not ask about his 1986 statement.

211Mr. Burke’s testimony about his whereabouts adds to my concerns about his credibility because his evidence that he was away from Toronto on the dates in question is not consistent with the contemporaneous documents. Mr. Burke purchased the Freightliner truck on September 16, 1986 and applied for the position with Magnum on September 17, 1986. He was arrested shortly after midnight on September 18, 1986. Based on the sequence of events, he would have had to get the job with Magnum, leave for New York state and return to Toronto within a day. He could not have been absent for two to three days.

212Clearly, Mr. Burke is willing to fabricate stories when it suits his purpose and especially when desperate to avoid incarceration. His affidavit evidence and his testimony on cross-examination reflect significant discrepancies about what he recalls. He testified to the flaws in his own memory and its self-protective nature. I find that Mr. Burke is not a credible witness and I place no weight on his testimony.

213As a result, I am not satisfied that Mr. Burke gave a statement to police when he was arrested in September 1986. Had he given a statement, based on his recollection of other details, he would have recalled at least some of the specifics. There was no mention of a statement by Mr. Burke in any of the existing documents. While N.M. was told that Mr. Burke said certain things on his arrest, this does not mean he gave a formal, recorded statement.

214In any event, even if Mr. Burke gave a statement to police in 1986, the loss of that evidence would not prejudice his ability to make full answer and defence. That is because Mr. Burke himself is the source of the information. When he was re-arrested in 2015, Mr. Burke gave an interview of almost 400 pages, which the defence has admitted was voluntary. At that time, Mr. Burke did not need his 1986 statement to refresh his recollection. I reject Mr. Burke’s evidence about his loss of memory. As a result, even if he gave a statement in 1986 and that statement was lost, any prejudice to him would be minimal.

215Moreover, if Mr. Burke made a statement upon his arrest in September 1986, it would have pertained only to N.M.’s allegations because he was arrested on those charges before the alleged incident with A.E. He then absconded before being arrested on the charges relating to A.E. As a result, there can be no prejudice to Mr. Burke in relation to the A.E. charges from the loss of his purported statement.

216The defence submits that the fact that Mr. Burke was granted bail, despite the serious nature of the charges relating to N.M. and his criminal record, supports that he made a statement in 1986 and that it contained exculpatory evidence. I decline to infer from the record before me the basis on which Mr. Burke was granted bail. There are simply far too many other potential explanations as to why a justice would have granted bail in 1986.

217Finally, I find that Mr. Burke bears some of the responsibility for any prejudice resulting from his loss of memory over time because it is he who made the deliberate decision to frustrate the criminal proceeding against him by fleeing to the United States rather than remaining in Ontario, as he was required, and respond to it.

(d) Whether to call evidence or testify

218The defence submits that Mr. Burke’s ability to conduct his defence has been significantly prejudiced by the lost Crown brief because he could not make informed decisions about whether to call evidence or testify.

219In R. v. Kociuk, 2011 MBCA 85, 270 Man. R. (2d) 170, the accused submitted that he was prejudiced by the loss of police records, which could help refresh his memory as to his whereabouts on the date at issue. The Manitoba Court of Appeal upheld the trial judge’s finding that there was no evidentiary basis to conclude that the missing records would have assisted him in establishing an alibi and that the prejudice to the accused was “conjectural at best.” (at para. 43).

220In my view, the defence has failed to establish any nexus between the lost evidence and the decision not to call evidence at trial. Mr. Burke has given no evidence as to why he did not call a defence. Mr. Burke gave detailed testimony about the many witnesses to the fight between himself and Claude. The landlord, who Mr. Burke believed still lived at the same address, could have been called as a witness. Mr. Burke gave substantial evidence about his brother, Robert, who could also have been called as a witness. The Crown had provided the name of a manager at Magnum who also could have been called as a witness. Moreover, there is no suggestion that anything in the Crown brief would have assisted the defence in deciding whether or not to call any of these individuals as witnesses.

221In terms of Mr. Burke’s decision about whether or not to testify, I am not satisfied that the lost evidence caused any actual prejudice. Because of the 1986 Synopsis and other available documents, Mr. Burke was aware of the nature and specifics of N.M.’s allegations. His testimony demonstrated that he had a detailed recollection of their interactions. Mr. Burke could have testified, but chose not to, as he was entitled to do. I make no inferences from Mr. Burke’s decision not to testify. However, having given detailed evidence about his whereabouts and the days leading to his arrest on the lost evidence application, he cannot argue that he could not decide whether or not to testify because his statement, which he claims was exculpatory, was lost. I find that the loss of the alleged exculpatory statement did not prejudice Mr. Burke’s decision whether or not to testify because he recalled his alibi in significant detail.

222The Crown further submits that in the absence of a severance application, Mr. Burke’s decision not to testify was unrelated to the lost evidence because the alleged prejudice relates mainly to the loss of the Crown brief pertaining to N.M. It goes without saying that had he chosen to testify, Mr. Burke would have been cross-examined in relation to both complainants.

A.E.

223The defence submits that Mr. Burke is prejudiced by the loss of the Bowmanville Hospital records because it is possible that A.E. made an inconsistent statement when she was first examined.

224In my view, no actual prejudice arises from the loss of the Bowmanville Hospital records. First, there is a DPS occurrence report completed by Police Constable D. McFeeters, which states that A.E. went to the Bowmanville Hospital for treatment and was seen by Dr. Westgarth, who advised that she had been “beaten up badly (swellings like being whipped, punched, etc.) also sperm located in the vaginal area.” The available record is thus consistent with A.E.’s evidence. Even if the Bowmanville Hospital records were available, they are unlikely to contain information that would assist the defence.

225In addition, the defence has the SAEK that was conducted at Women’s College Hospital. This information is more detailed and useful to the defence than any records arising from A.E.’s brief treatment at the Bowmanville Hospital would have been.

226The possibility that A.E. made an inconsistent statement while being examined at the Bowmanville Hospital is purely speculative, especially where the interactions were brief and were not central to the investigation. The loss of those records is thus insufficient to result in actual prejudice to Mr. Burke. Moreover, given A.E.’s lengthy, contemporaneous written statement, it is as likely that if she made any statements to the treating doctor, that they would assist the Crown’s case as opposed to the defence.

227Any possibility that the lost evidence could have assisted the defence in a material or substantial way is entirely speculative and not realistic given that the evidence was only marginally relevant.

228Accordingly, I find no actual prejudice to Mr. Burke’s ability to make full answer and defence by the loss of the Bowmanville Hospital records. In respect of these records, there is no breach of s. 7 of the Charter.

Summary

229In summary, Mr. Burke’s s. 7 rights have been breached because of the loss of A.E.’s clothing and the DPS and TPS memobook notes, for which the Crown has conceded unacceptable negligence. The loss of the Bowmanville Hospital records does not result in a breach of Mr. Burke’s rights under s. 7 because there was no unacceptable negligence and because the loss of the records did not prejudice Mr. Burke’s ability to make full answer and defence.

230The loss of the Crown brief relating to N.M. resulted in a breach of Mr. Burke’s s. 7 rights because the inability to impeach N.M.’s credibility on her 1986 statement prejudiced his ability to make full answer and defence. The loss of the other evidence did not breach Mr. Burke’s s. 7 rights because there was no unacceptable negligence and because the loss did not cause actual prejudice to his ability to make full answer and defence.

Should the Proceedings Be Stayed Under Section 24(1)?

231Based on the breach of Mr. Burke’s s. 7 rights by the loss of A.E.’s clothing, the DPS and TPS memobook notes, and N.M.’s original statement, it is thus necessary to determine whether Mr. Burke’s fair trial rights have been so seriously impaired by the loss of that evidence that, in the circumstances, a stay is the only appropriate relief.

The Applicable Principles

232The Supreme Court of Canada has outlined the three requirements that must be met before ordering a stay under s. 24(1) of the Charter:

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

2. There must be no alternative remedy capable of redressing the prejudice; and

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

R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32.

233In R. v. Bero, the Court of Appeal stated that “[t]he reluctance to stay criminal proceedings reflects the strong preference for a verdict on the merits.” A stay is granted only in the clearest of cases where the fairness of the trial process has been so eviscerated that a stay of proceedings is the only way to maintain public confidence in the administration of justice: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68. The Applicant bears the burden of proving that this high threshold is met.

234Trial fairness is assessed from the perspective of both the accused and the community, and does not mean the most advantageous trial to the accused: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 45. A fair trial is not the same as an ideal trial for the defence: R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651. The issue is whether the defence was actually prejudiced to the extent that the case proceeding to the trier of fact would result in an unfair trial: Bradford, at para. 33.

235To justify a stay, the accused must show that the lost evidence prejudiced him in a substantial or material way: Sheng, at para. 46.

236The question of prejudice must be considered in the context of all the available evidence, with consideration to the defence advanced, the importance of the evidence to that defence, and whether there is other evidence that can substitute the information lost. The trial judge is then in a position to consider the appropriate remedy to address any prejudice arising from the lost evidence: Sheng, at paras. 35 and 53; Bero, at paras. 41-45.

237In crafting the appropriate remedy under s. 24(1), the court must consider the impact that the lost evidence has on the Applicant’s ability to make full answer and defence, and in turn, his ability to have a fair trial: Sheng, at paras. 34 and 45.

Should a Stay of Proceedings be Ordered?

N.M.

238In the context of determining whether Mr. Burke’s s. 7 right to a fair trial has been breached, I have found above that the loss of N.M.’s original statement did prejudice his ability to make full answer and defence in that he was deprived of the opportunity to impeach N.M.’s evidence on this prior statement.

239However, in my view, Mr. Burke’s right to a fair trial is not prejudiced in a material or substantial way (Sheng, at para. 46). As noted above, the defence was able to conduct a thorough cross-examination of N.M. and was able to challenge the credibility and reliability of her evidence. While the loss of her original statement reduced the defence’s ability to impeach N.M.’s credibility, they were able to put the contradictory allegations to her.

240Moreover, when weighing the issue of prejudice to Mr. Burke’s fair trial rights or to the integrity of the justice system, I find it necessary to take into consideration that it was Mr. Burke who attempted to frustrate the criminal process by fleeing. The Court of Appeal has previously found that Mr. Burke’s deliberate attempt to avoid prosecution caused the lengthy delay: R. v. Burke, 2018 ONCA 594. The charges relating to both A.E. and N.M., arising from incidents that took place in 1986, are only proceeding to trial in 2021 because Mr. Burke, in violation of his bail, absconded to the U.S., where he was convicted of other offences. Had Mr. Burke not made the deliberate choice to evade prosecution, it would not have taken over 30 years to prosecute the offences. In that case, it is unlikely that the evidence would have been lost.

241In this case, a more appropriate remedy would be to take into consideration the limitations arising from the lost evidence in assessing the credibility and reliability of N.M.’s evidence. The fact that the evidence has been lost can also be considered in the context of whether or not the Crown has met its burden of proof.

242On this basis, the first two stages of Babos have not been met and a stay ought not to be ordered.

243In case of any doubt, the balancing of interests that takes place at the third step of the Babos test would weigh against granting a stay. In this case, the balance weighs much more heavily in favour of the interest that society has in having a final decision on the merits.

244The public interest in a trial on the merits increases where the charges are more serious: O’Connor, at para. 81. Public interest in a determination of the merits is extremely high here, because the case involves very serious charges of kidnapping and sexual assaults against two young, vulnerable women over a lengthy period of time. The case has taken 35 years to be heard.

245Under the circumstances, the interest in an adjudication on the merits is overwhelming. A stay would seriously undermine public confidence in the administration of justice.

246The defence has failed to meet the high burden of demonstrating that the charges should be stayed, and that a stay is the only available remedy to address the prejudice to the defence. Under the circumstances, I would decline to order a stay.

A.E.

(a) A.E.’s clothing

247The loss of A.E.’s clothing does not cause actual prejudice to the defence. Mr. Burke has not disputed picking up A.E. It is undisputed that she jumped out of his car on the 401. Because the identity of the accused is not in dispute, the ability to have the clothing tested for DNA would not assist the defence. In addition, while the defence disputes that the vehicle was travelling at a high speed when A.E. jumped out, it is unclear whether the state of her clothing would assist in demonstrating this. The speed at which the vehicle was travelling does not, in any event, make the defence theory, that the vehicle was being followed by A.E.’s acquaintances and it was they who picked her up, more or less likely. In any event, the defence did not put to A.E. on cross-examination that she knew the individuals who picked her up.

248The defence ability to challenge A.E.’s testimony that the vehicle was travelling at a high speed when she jumped out goes only to her credibility. In respect of A.E.’s credibility, the defence was able to cross-examine A.E. at length based on her contemporaneous statement.

249Therefore, while the Crown concedes that the clothing was lost as a result of unacceptable negligence on its part, the loss of the evidence results in no actual prejudice to the defence.

(b) The DPS and TPS Memobook Notes

250The defence submits that Mr. Burke is prejudiced by the loss of the DPS police officers’ notes because they cannot know whether A.E. made any inconsistent statements when she was first picked up. The defence further submits that because the DPS officers’ notes were lost, they do not have the names of the two individuals who picked A.E. up on the highway. The defence is unable to determine whether they were strangers, as A.E. testified, or known to A.E., as Mr. Burke posits.

251The notes of one of the DPS officers, Jim Adams, were located and provided to the defence. The notes are brief and contain little detail. There is no reason to believe that the notes of the other DPS officer, Detective Joe Loughlin, would have been any more detailed. In any event, Detective Loughlin completed a supplementary report of the interview with A.E. The Supplementary Report contains A.E.’s allegations and is more detailed than his memobook notes would have been.

252The existing DPS records do not state the names of the two individuals who picked A.E. up. While the defence submits that Mr. Burke is prejudiced by not having the identity of the two individuals, even if the notes were available, it is not certain that they would have identified the two individuals. It is not known whether the DPS officers took statements from them. To conclude that they did and that they were favourable to the defence would be pure speculation. The DPS police did not investigate A.E.’s allegations; the investigation was conducted by the TPS.

253Moreover, A.E. testified in detail about trying to flag a vehicle on the highway and that no one would stop for her until she lay down on the side of the road. On cross-examination, the defence did not put its position, that A.E. knew the two men who picked her up, to A.E. The defence put to A.E. that she jumped out because Mr. Burke did not pay her or because he had hit her. I find no air of reality to Mr. Burke’s theory that A.E. was setting him up and that his vehicle was being followed by individuals known to A.E. Again, I reiterate that I am considering Mr. Burke’s testimony solely for the purposes of the lost evidence application. Consequently, I find no actual prejudice to Mr. Burke based on the loss of the DPS officers’ notes.

254The defence argument that A.E. might have made inconsistent statements to the DPS police officers is entirely speculative and does not constitute actual prejudice to Mr. Burke’s ability to make full answer and defence. A.E.’s interaction with them was for a limited time period. The DPS police picked A.E. up from the restaurant, interviewed her and transferred her to the Bowmanville hospital. Given the Supplementary Report completed by Detective Loughlin, it is more likely that anything A.E. said to the DPS officers would have been consistent with her written statement.

255The defence relies on a similar argument in respect of the TPS officers’ notes, that A.E. might have made inconsistent statements while the officers were driving her home. Even if A.E. stated, contrary to her written statement, that Mr. Burke did not sexually assault her, this would not necessarily make her testimony untrue. While it would have provided a further basis for cross-examination, the courts have warned against assuming how a sexual assault complainant would behave after the alleged incident: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 60-63.

256The bulk of the Crown file was available to the defence. In fact, the defence had ample opportunity to cross-examine A.E. on her detailed, contemporaneous written statement. She acknowledged that she no longer recalled many of the details.

257Having considered the lost evidence within the context of the evidence as a whole, I am satisfied that any prejudice arising from the loss of evidence relating to A.E. can be more than adequately addressed by considering the submissions made by the defence regarding how the lost evidence might have assisted the defence, had it been preserved, and whether the Crown discharged its burden of proof (see Bero, at para. 54.) The lost evidence can also be factored into the assessment of the credibility and reliability of A.E.’s testimony.

258As a result, I find that Mr. Burke’s ability to make full answer and defence is not prejudiced by the loss of A.E.’s clothing and the DPS and TPS memobook notes. The Applicant has not met the high threshold for a stay.

259I have already found above that the loss of the Bowmanville Hospital records did not prejudice Mr. Burke’s ability to make full answer and defence. A stay would not be justified under the circumstances.

The Credibility and Reliability of the Complainants’ Evidence

260Before proceeding with an examination of the evidence, it is useful to set out the principles that are applied by the court in weighing the evidence.

261It is important to note that Mr. Burke is presumed innocent. The Crown bears the burden of proving all elements of each offence charged beyond a reasonable doubt. The reasonable doubt standard is a high standard. It is not sufficient to prove that the accused is probably guilty. While the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high, the standard of proof beyond a reasonable doubt is closer to absolute certainty than it is to proof on a balance of probabilities.

262In this case, Mr. Burke did not testify on the trial of the merits. He was under no obligation to testify, and I take nothing from the fact that he did not. The fact that Mr. Burke did not testify does not change the burden of proof or in any way relieve the Crown of its burden of proof.

263Pursuant to s. 274 of the Criminal Code, corroboration is not required in order to find an allegation of sexual assault proven beyond a reasonable doubt. The complainant’s evidence alone can be the basis to find that an allegation of sexual assault is proven, if it is found to be sufficiently credible and reliable to meet the beyond reasonable doubt standard of proof: R. v. Azonwanna, 2020 ONSC 1513, at para. 20.

264In weighing the evidence, I must assess the credibility and reliability of the witnesses’ evidence. This involves a consideration of many factors, in particular, the internal consistency of each witness’s testimony and its consistency or rational coherence in the context of the evidence as a whole. I will begin with general comments about the credibility and reliability of the witnesses’ testimony and then consider the consistency when examining the particular matters at issue.

N.M.

265In her testimony, N.M. provided a detailed account of the events that took place from the time she first encountered Mr. Burke to the time she reported the incident to the police, as detailed above.

266The defence raises the following points as undermining N.M.’s credibility:

• N.M. made her complaint to police under an assumed name, Caramel Holiday, and appeared in court on an unrelated matter under that name;

• N.M. pleaded guilty to using a false name, Paige Lands, while under the assumed name of Caramel Holiday;

• N.M. testified that she went to the hospital as soon as the Defendant brought her back to her motel. The date on the sexual assault examination kit, however, is two days after the alleged assault;

• N.M. testified that she left Toronto shortly after police told her that the Defendant had attacked another woman and that they could not protect her. The documentary evidence shows that she appeared in court in Toronto in December 1986 and in March 1987;

• N.M. testified that the Defendant said he would put her in his truck but he did not own a truck at the time;

• It is not credible that N.M. would remember A.E.’s first name in 2016 if she had never met her before;

• It is not credible that the Defendant would have taken N.M. back to her residence after such a serious assault; and

• In her statement to the police in 2016, N.M. neglected to mention that Mr. Burke had fired a gun, and she contacted the police again to advise them about it.

267The court need not resolve every inconsistency in the evidence to find that the allegations are proven beyond a reasonable doubt: R. v. Roy, 2017 ONCA 30, 136 W.C.B. (2d) 103. The relevant question is whether the inconsistency concerns a significant aspect of the evidence such that, if unexplained, the complainant’s credibility should be called into question; or that there are so many inconsistencies which cumulatively call the reliability of the witness into question: R. v. M.G. (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at paras. 27-28.

268In my view, the fact that N.M. used an assumed name to make the complaint to police and in court does not negatively impact on the credibility of her testimony at trial. N.M. admitted that she had used a false name to avoid getting a criminal record under her real name and that she was young and “not very smart” at the time. N.M. is significantly older now. She explained that she understands the consequences of her actions.

269Similarly, I do not think that the evidence that N.M. was in Toronto in March 1987, despite her testimony that she left Toronto immediately after being told that Mr. Burke had escaped, negatively impacts on her credibility. N.M. recalls leaving Toronto soon after being told by police that they could not protect her. Although N.M. believes that was shortly after she heard that Mr. Burke had attacked another woman, the timing as to when she was advised of Mr. Burke’s escape is not in evidence. Mr. Burke was noted in default of his bail, and the surety revocation was in May 1987. It is possible that N.M. was not told about Mr. Burke’s escape until around that time. Moreover, given the passage of 35 years, N.M. may not accurately recall precisely when she was told that information and exactly when she actually left Toronto.

270I place no reliance on the evidence that Mr. Burke did not purchase the transport truck until September 16, 1986, the day of or the day after the incident involving N.M. The fact that he did not own the truck when the incident took place does not necessarily mean that N.M. lied about the Defendant speaking about his truck. Mr. Burke could have had access to a truck or could have been planning to purchase the truck, which he did the following day.

271In addition, the evidence that Mr. Burke took N.M. back to her motel does not undermine N.M.’s credibility. Based on N.M.’s account, Mr. Burke had been debating what to do with her throughout the many hours he kept her. N.M. persistently tried to gain Mr. Burke’s trust and proposed meeting for lunch with their children the next day. He not only released her, but also gave her his name and telephone number. His behaviour was not necessarily rational or predictable. While it seems unlikely that an accused would return the complainant to her home after committing serious physical and sexual assaults, there is no basis upon which to conclude that Mr. Burke would not do so in the particular circumstances of this case (summarized above), and that N.M. must therefore be lying.

272I have previously addressed the fact that N.M. guessed A.E.’s first name when shown her photograph.

273In respect of N.M. failing to recall the gun incident when she gave a statement to the police in 2016, N.M. explained that after the interview, she spoke to R.W., and it was not until then that she remembered the gun. In my view, it is not unreasonable that when being interviewed for the first time in 30 years, N.M. neglected to mention the gun. Moreover, the 1986 Synopsis describes Mr. Burke firing the gun while they were in a “residential area.” While the Synopsis is not admitted for the truth of its contents, the fact that the gun was specifically referred to in the Synopsis is admissible to rebut the defence’s position the allegation was fabricated more recently.

274The discrepancy in the timeline between the incident and N.M.’s attendance at the hospital is a more difficult issue to reconcile. The 1986 Synopsis states that the incident took place on Monday, September 15, 1986.⁴ The date of the sexual assault kit is September 17, 1986. N.M. testified that Mr. Burke held her overnight into the next day. Either N.M. did not go to the hospital as soon as Mr. Burke dropped her off or the incident did not take place on September 15. Because the Synopsis is not admitted for the truth of its contents, there is no conclusive evidence as to the date on which the incident took place.

275However, it is not necessary for me to determine on what date the incident took place and on what date N.M. went to the hospital. The question is whether N.M.’s credibility is undermined by the 1986 Synopsis. I find that notwithstanding the date discrepancy, N.M.’s evidence remains credible. N.M. was adamant that she asked her husband to take her to the hospital as soon as she got home. She described looking at the marks on her chest and screaming and crying that she needed to go to the hospital. Based on N.M.’s account of the assaults by Mr. Burke, it is not likely that she would have waited a day before going to the hospital to seek medical assistance. Moreover, I cannot exclude the possibility that the date on the Synopsis is mistaken or that it refers to the date when the incident commenced.

276The defence also points to a number of inconsistencies between N.M.’s testimony and the 1986 Synopsis,⁵ as follows:

• N.M.’s testimony was inconsistent with a statement in the Synopsis that she and the Defendant went to a parking lot at Church and Gould to discuss price;

• N.M. testified that Mr. Burke produced the knife as soon as she opened the car door. However, the Synopsis states that she entered Mr. Burke’s vehicle voluntarily and that he later pulled out the knife;

• N.M. did not testify to being sexually assaulted by Mr. Burke until they drove to the field, but the Synopsis states that the Defendant first sexually assaulted her in the bathroom of his apartment;

• N.M. testified that Mr. Burke drove her to a field in a remote area, but the Synopsis states that he took her to a “residential area somewhere around Metropolitan Toronto”;

• N.M. testified that Mr. Burke paid her $100; however, the Synopsis states that he robbed her of $140; and

• The Synopsis did not contain details to which N.M. testified, specifically, that the Defendant whipped her with a belt, that he spoke to her about his family, and that he threatened to put her in his truck.

277A number of the above discrepancies in the 1986 Synopsis are immaterial to the issues before the court. See: R. v. Roy, at para. 14. It does not matter at what point Mr. Burke produced the knife or whether N.M. entered Mr. Burke’s car voluntarily. N.M.’s evidence is that N.M. held the knife to her in the car, and told her to put her legs under his. She was unable to escape without the risk of injury to herself.

278Similarly, whether Mr. Burke first sexually assaulted N.M. in his apartment or in the car, after they drove to the field, is not material. In all the circumstances, N.M.’s evidence is that Mr. Burke repeatedly sexually assaulted her and that she did not consent.

279As to whether Mr. Burke drove N.M. to a field in a remote area or to a “residential area around Metropolitan Toronto,” I find this is not a material inconsistency. It is unclear whether it was N.M. or the officer who drafted the Synopsis who characterized the area as residential. N.M. was certain that she was taken to a field in a remote area where there were no other people.

280On cross-examination, N.M. maintained that Mr. Burke produced the knife when she opened the car door. She admitted that a discussion of price in a parking lot at Church and Gould might have happened but that she had no memory of it. N.M. testified that she did not recall being robbed, but that she also did not recall telling police that she was robbed.

281Given that the discrepancies do not relate to material issues, the question is whether they undermine the credibility and reliability of N.M.’s testimony. As stated earlier in these reasons, although the Crown conceded that the 1986 Synopsis could be used in place of N.M.’s lost statement to the police to cross-examine and challenge her credibility and reliability, when the inconsistencies were put to her, N.M. disputed the accuracy of the 1986 Synopsis and stated that she did not have any control over what the officer put in the Synopsis. As explained above, the defence’s ability to impeach N.M.’s credibility on the 1986 Synopsis was limited.

282Based on my finding that Mr. Burke’s ability to make full answer and defence was prejudiced by the loss of N.M.’s original statement, I find that despite N.M.’s comments about the 1986 Synopsis, that it is secondary evidence of her original statement. Because the 1986 Synopsis is not N.M.’s statement, but a summary drafted by a police officer based on an interview, it may not be entirely accurate and is unlikely to include every detail N.M. mentioned. However, it is the most complete contemporaneous account available.

283As a result, I find that N.M.’s testimony was less reliable in respect of certain details. This includes how she entered Mr. Burke’s vehicle, at what point he produced a knife, how many times and where she was sexually assaulted, and whether he took her money or gave her money. In my view, this goes to the reliability as opposed to the credibility of her testimony. It is more likely that due to the passage of time, N.M. no longer has an accurate recollection of those details. The loss of her contemporaneous statement also deprives her of the ability to refresh her recollection.

284Ultimately, however, the core of N.M.’s evidence remains unshaken. She testified in detail about what the Defendant did to her and how he behaved, as well as how she felt at specific moments during the course of the evening. Mr. Burke kidnapped her and held her at knifepoint in his vehicle. He took her back to his apartment where he whipped her with a belt. He drove her to a field where he repeatedly forced sexual intercourse on her. He threatened to kill her and expressed concern that she would go to the police and that she had evidence against him. She recalled trying different approaches to secure her release or survival, first by fighting back and eventually by acquiescing and attempting to befriend Mr. Burke. N.M. recalled specifically what Mr. Burke had told her about his family situation. She eventually convinced him to let her go by trying to win his trust and assuring him that they would go to lunch with their children.

285The defence submits that N.M.’s failure to recall being sexually assaulted in Mr. Burke’s bathroom is an inconsistency that undermines the credibility or reliability of her evidence. When she was shown the 1986 Synopsis, N.M. testified that she did not remember that particular incident. To be clear, the fact that N.M. did not then “recall” the event and attempt to expand her testimony does not enhance her credibility. Rather, I find that her failure to recall this particular incident is not an inconsistency that would undermine the credibility or reliability of her evidence.

286In terms of reliability, N.M. acknowledged that she did not remember certain details, such as at what points and where Mr. Burke raped her and whether he took her money, because of the passage of time and because she has tried to block out the details from her memory. She did not remember the name of the motel where she was staying or whether it was located in Mississauga or Toronto. N.M. admitted that she could not remember details such as the type of car Mr. Burke drove. However, N.M. remembered that Mr. Burke’s car had a blue interior, which is consistent with A.E.’s description.

287In fact, despite the passage of time, N.M.’s clear memory of particular details supports the reliability of her testimony. She remembered that Mr. Burke’s apartment was on Dundas Street, that there was a “flea market” sign above it, that the belt he used was a brown, leather “hippie” belt with no buckle, and that she dropped her bracelet in Mr. Burke’s washroom in an attempt to leave a sign that she had been there.

288Given N.M.’s account that Mr. Burke detained her over an extended period of time and that she was repeatedly assaulted and sexually assaulted, it is understandable in the circumstances that N.M. would not recall exactly how many times and at which points Mr. Burke forced intercourse on her. This is accentuated by the passage of 35 years since the events occurred and her conscious efforts to block the memories. N.M. testified that she had not spoken to anyone, including her friends and family, about the incident over the past 35 years. Before the trial, she felt she had to tell her family what had happened. It was clear that testifying caused her significant distress. While she was visibly upset, N.M. was not evasive or combative, and attempted to answer all questions.

289On cross-examination, the defence put to N.M. their theory that she fabricated the allegations only after the altercation between Mr. Burke and R.W. over the alleged drug debt, which N.M. denied. I recognize that Mr. Burke bears no burden to demonstrate that N.M. had a motive to fabricate. In this case, because there is no affirmative proof that N.M. had no motive to fabricate, I make no positive finding that N.M. had no motive to fabricate the allegations against Mr. Burke. However, there is also an absence of evidence that N.M. had a motive to fabricate. I may consider the absence of evidence of a motive to fabricate as one of many factors in assessing N.M.’s credibility: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at para. 52.

290Further, while corroboration is not necessary, N.M.’s testimony is corroborated by the injuries documented in the sexual assault examination, including a linear abrasion to her neck and chest, and bruises on her arms and legs.

291N.M.’s account is further corroborated by A.E.’s evidence that Mr. Burke showed her the scratches on his face from his struggle with N.M. A.E.’s testimony about what Mr. Burke told her supports N.M.’s account that he wanted to dominate her and that they struggled when she would not submit. A photograph of Mr. Burke taken upon his arrest shows a scratch to his face, which is also consistent with N.M.’s evidence.

292In addition, N.M. testified that Mr. Burke’s apartment was on Dundas Street. This is corroborated by the Freightliner invoice showing Mr. Burke’s address on Dundas Street West, as well as an application for employment made by Mr. Burke on September 17, 1986. N.M. testified that before Mr. Burke’s arrest, police drove by with her and told her to identify the location of the apartment if she saw it, which she did. This allowed the police to then obtain a search warrant and search the apartment.

293As mentioned earlier in these reasons, the Crown tenders each complainant’s evidence across the counts in support of their respective credibility as it relates to the actus reus of the offences and the defences of fabrication and consent.

294The similarity in N.M.’s and A.E.’s accounts supports that Mr. Burke had a clearly-defined, situation-specific propensity to pick up young women with whom he transacted for a sexual act; to hold them over an extended period of time; to secure their compliance through the threat of physical harm, including by threatening them with a knife; to drive them to isolated locations; to whip them with a belt; to assault and sexually assault them repeatedly; to openly debate with himself whether he should release or kill them; and to exhibit mood swings from calm to rage. Mr. Burke did all of this for his own sexual gratification and, as he himself told both complainants, because of his anger toward his ex-wife. The particulars are so similar that the probability of coincidence is highly unlikely: R. v. Shearing, at para. 60

295Moreover, I find that the probability that two women who have never met would fabricate such similar accounts of prolonged sexual and physical violence at Mr. Burke’s hands is very low.

296I previously considered the possibility of actual and unconscious collusion as it related to the admissibility of the similar fact evidence and must now consider the possibility of unconscious collusion as it relates to its weight: R. v. F. (J.), at para. 77.

297As detailed previously, N.M. heard from police that Mr. Burke did the same thing to another girl and that she had escaped. Given that the charges were outstanding when the police communicated with N.M., it is unlikely that the police would have disclosed any significant level of detail about A.E. to N.M. In addition, the circumstances described by each complainant are different in certain respects, about which each complainant was able to testify in detail. For example, N.M. was taken to Mr. Burke’s apartment, and was able to provide a detailed description of the exterior and interior. A.E. was not taken to the apartment but described the truck stop where Mr. Burke kept his transport truck.

298Given the similarity between their respective accounts and the improbability of fabrication or unconscious collusion, A.E.’s account supports the credibility of N.M.’s testimony regarding both the actus reus of the offences and that she did not consent to the sexual contact.

299Based on the foregoing, I find N.M.’s testimony about the events in question to be both credible and reliable.

A.E.

300The defence raises the following issues in relation to A.E.’s credibility and reliability:

• A.E.’s criminal record;

• A.E. had large gaps in her memory and did not recall details that would be expected to stick out in her mind, such as Mr. Burke forcing intercourse on her while driving on the highway;

• A.E. admitted that extended drug use in her early 20s has resulted in memory loss;

• A.E. testified that she was not from Toronto and did not know where and on what highways Mr. Burke had driven her, but in her written statement identified the specific highways and areas where they drove and stopped;

• Even after reviewing her written statement A.E.’s recollection was not refreshed in respect of significant details, such as where she was sexually assaulted;

• Her injuries were not consistent with her testimony that the Defendant whipped her repeatedly; and

• It is not credible that she jumped out of a moving vehicle on the highway because, if she had, her injuries would have been worse.

301The defence argues that the inconsistencies in A.E.’s evidence relate to material facts about which an honest witness would not be mistaken, reflecting a carelessness with the truth that should cause the court concern.

302A.E. testified that approximately 20 minutes after she got into his vehicle, Mr. Burke pulled over on the side of the highway and whipped and sexually assaulted her. In her written statement, she had said that the first assault happened near Barrie. On cross-examination, A.E. stated that while she does not recall that the first sexual assault took place near Barrie, her written statement would be more accurate than her current recollection.

303In addition, A.E. testified that Mr. Burke sexually assaulted and whipped her in the back of the truck. On cross-examination, she admitted that she could not specifically recall whether this happened but believed that she had been whipped and sexually assaulted in the truck at some point. A.E. did not recall that Mr. Burke forced her to sit on his lap and have intercourse while he drove on the highway, as detailed in her written statement. A.E. did recall being forced to perform oral sex on Mr. Burke while he was driving.

304While the gaps in A.E.’s memory raise some concern about the reliability of her testimony, she was generally able to provide substantial detail of the 24-hour period she was with Mr. Burke. A.E. recalled that Mr. Burke drove a white Mercedes with a blue interior. She remembered what he had told her about his family and about N.M., as well as his threats to take her to his friend in Kingston and put her in “white slavery.” She recalled stopping for food and that Mr. Burke purchased burgers. She testified to her thought process before jumping out of the vehicle and how she eventually obtained assistance.

305It is understandable that after 35 years, she might not recall the precise timeframe or sequence in which the events took place, especially when her account is that she was driven around for a period of 24 hours, in a car and then in a truck while bound in the rear for some time. A.E. explained that she had difficult remembering the sequence of events because they took place over an extended period of time. In my view, A.E.’s inability to recall what specific sex acts took place at particular points in time in these circumstances does not detract from the overall reliability or credibility of her testimony.

306In addition, I reject the defence position that A.E.’s testimony is not credible because she claimed to be unfamiliar with Toronto when she had been living there for over 10 years. A.E. too left Toronto at some point. It is not surprising that she could not recall on what highways they were driving or where Mr. Burke took her. When the particulars of her written statement were put to her, it is clear that at the time, she was able to identify certain highways and places, such as the location of the truck stop or gas station where they stopped. The fact that A.E. knew where she was at the time but that she can no longer recall those details, having left Toronto a number of years ago, does not undermine the credibility of her testimony.

307Given the extensive detail in her contemporaneous written statement, A.E. could have claimed to remember those details after being given the opportunity to refresh her recollection. She did not attempt to do so. While again, this does not enhance her credibility, the fact that she remembers less than she did in 1986 does not, in my view, substantially undermine the credibility or reliability of her testimony.

308In my view, A.E. answered questions in a forthright manner and was candid about what she remembered and what she could no longer remember. It was A.E. who first mentioned that her memory has been impacted by drug use. A.E. also testified that she tried to block out certain memories to survive. In assessing A.E.’s credibility, I place little or no reliance on her criminal record, which shows that she was last convicted of a failure to comply in 2004.

309The defence further submits that no witnesses were called to corroborate A.E.’s version of events, such as the individuals who picked her up on the highway, or expert evidence to support that her injuries were consistent with jumping from the vehicle.

310A.E.’s evidence is corroborated by the photographs of her injuries, which were taken when she went to the police. The photographs show numerous large welts on her body as well as abrasions on her feet and legs. She suffered a deep gouge to her right foot, consistent with her evidence that she jumped out of the car and landed on her foot. She had abrasions on her shoulder and back, consistent with road rash. The SAEK documented multiple welts on her body.

311In the absence of expert evidence to support the defence position that A.E.’s injuries would have been worse if she had actually jumped out of the car, I have no reason to speculate that her injuries would have been worse or to question A.E.’s testimony in this regard.

312Moreover, the documentary evidence corroborates that Mr. Burke owned a Mercedes and a Freightliner truck at the time of his contact with A.E. Moreover, A.E. testified that Mr. Burke told her that he was charged with sexually assaulting Caramel Holiday, which was true. Mr. Burke specifically told A.E. that he was doing what he did to her out of revenge because Caramel Holiday went to police when she had promised she would not. He told A.E. that since he was already charged with rape, he might as well be a “rapist.”

313As stated earlier in these reasons, the loss of A.E.’s clothing and the DPS and TPS memobook notes was due to unacceptable negligence and resulted in a breach of Mr. Burke’s s. 7 rights. While I declined to order a stay, I may consider the impact of the lost evidence on the credibility and reliability of A.E.’s testimony. The lost clothing, if it was available, is unlikely to undermine A.E.’s account. In addition, as found above, given her detailed contemporaneous statement, it is speculative to suggest that A.E. made any inconsistent statements in her interactions with the DPS and TPS. In my view, the lost evidence has little or no impact on the reliability and credibility of A.E.’s testimony.

314In respect of the similar fact evidence, Mr. Burke’s conduct toward N.M. is probative of the credibility of A.E.’s testimony as it relates to the actus reus of the offences and consent. Moreover, the possibility of unconscious collusion is significantly undermined by A.E.’s contemporaneous written statement.

315Nonetheless, while I granted the Crown’s similar fact application, I decline to place any weight on the similar fact evidence in respect of the charges relating to A.E. Based on my finding of prejudice to Mr. Burke resulting from the loss of N.M.’s original statement, there is a risk that the prejudice would be compounded by relying on the evidence in relation to N.M. to support A.E.’s allegations. As a result, in determining whether the Crown has met its burden of proof on the charges relating to A.E., I place no weight on the similar fact evidence pertaining to N.M.

316Notwithstanding my finding regarding the weight of the similar fact evidence, I find A.E.’s testimony about the events in question to be both credible and reliable, for all the reasons set out above.

Findings on Charges Relating to N.M.

317The defence submits that the Crown has failed to prove beyond a reasonable doubt that Mr. Burke committed the offences alleged in relation to N.M. The defence posits that N.M.’s injuries were caused by her partner at the time, R.W., who N.M. admitted was abusive.

318The defence argues that Mr. Burke’s ability to defend himself is significantly prejudiced by the destruction of the original Crown brief after the charges relating to N.M. were withdrawn. The defence further argues that the following evidence is lacking: the gun that N.M. testified to or any gunshot residue, Mr. Burke’s car, and any fingerprints from the vehicle.

319There was no concession by the defence that once the complainants’ evidence was found to be credible and reliable, the elements would be established. As a result, I examine the elements of each offence below.

Sexual assault with a weapon, s. 245.1(1)(a)

320The actus reus of sexual assault has three parts: (i) the application of physical force; (ii) without consent; and (iii) in circumstances of a sexual nature: R. v. Ewanchuk, 1999 CanLII 711 (SCC), 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 25. The mens rea is demonstrated by showing that the application of the force is intentional, and the accused knows or believes that the complainant is not communicating consent to the particular act in question: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 86-92.

321In R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 37, the Supreme Court stated that “[t]he complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established” (emphasis in original). See also: R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at para. 38.

322Consent applies to each sexual act and must be ongoing. Consent to a particular sexual act does not mean that consent is presumed for any other sexual acts, or that the person is more likely to have consented to other sexual acts: R. v. J.A., at para. 65; R. v. Barton, at para. 118.

323In order to demonstrate the offence of sexual assault with a weapon, the Crown must demonstrate beyond a reasonable doubt that:

(i) that Mr. Burke intentionally applied force to N.M.;

(ii) that N.M. did not consent to the force that Mr. Burke applied;

(iii) that Mr. Burke knew or was reckless as to whether N.M. did not consent to the force that Mr. Burke applied;

(iv) that a weapon was involved; and

(v) that the force that Mr. Burke (intentionally) applied took place in circumstances of a sexual nature.

324After driving N.M. to the field, Mr. Burke sexually assaulted her in his car three times. Each time, Mr. Burke directed N.M. to put the seat back down and to turn around. N.M. testified that she pleaded with him “please, you don’t have to do this.” The sexual assaults took place in the context of Mr. Burke detaining N.M. against her will, repeatedly threatening to kill her, including if she did not comply with his demand for sex, and brandishing a knife.

325N.M. testified that during the first sexual assault, Mr. Burke held a knife to the left side of N.M.’s body. During the second sexual assault, Mr. Burke held the knife and told her to “put the seat back or I’m going to fucking kill you.” Mr. Burke used the knife to threaten N.M. and to obtain her compliance. This evidence demonstrates both that Mr. Burke committed the sexual assaults with a weapon, and that he knew that N.M. was not consenting to the sexual acts.

326While N.M. did not resist the third time, she testified that she was not, in her mind, consenting to the sexual act and only did what Mr. Burke told her to because she was afraid that he would kill her, based on his previous behaviour. Section 244(3) of the Criminal Code, as of the time of the offence, provided that “no consent is obtained where the complainant submits or does not resist by reason of” the application of force or threats or fear of the application of force to the complainant: s. 244(3)(a) and (b).

327I find that the Crown has demonstrated beyond a reasonable doubt that Mr. Burke committed the offence of sexual assault against N.M.

Assault with a weapon, s. 245.1(1)(a)

328In order to prove the offence of assault with a weapon, the Crown must demonstrate beyond a reasonable doubt that:

(a) Mr. Burke intentionally:

(i) Applied force to N.M.;

(ii) Attempted or threatened, by act or gesture, to apply force to N.M.; or

(iii) While openly carrying a weapon or imitation weapon, accosted or impeded N.M.;

(b) N.M. did not consent to the force that Mr. Burke applied;

(c) that Mr. Burke knew that or was reckless as to whether N.M. did not consent to the force that he applied; and

(d) A weapon, namely a knife, was involved in the assault.

329I accept N.M.’s evidence that she awoke in the bathtub to find Mr. Burke running a knife along her neck and chest and that he told her that he could spill her blood down the drain and dispose of her body. Her account was corroborated by the abrasions to her neck as noted in the sexual assault examination.

330The circumstances were such that Mr. Burke knew that N.M. did not consent to the force applied. N.M. had just been choked to unconsciousness by Mr. Burke. She was naked and in a vulnerable position in the bathtub. Mr. Burke was holding her against her will and she was unconscious because she had tried to fight him off.

331As a result, I find that Mr. Burke intentionally applied force or threatened to apply force to N.M., that she did not consent to the force he applied, that he knew that she did not consent to the force applied and that a knife was involved in the assault.

332I am satisfied beyond a reasonable doubt that Mr. Burke committed the offence of assault with a weapon, namely, a knife, against N.M.

Assault with a weapon (gun), s. 245.1(1)(a)

333Similarly, in respect of the charge of assault with a weapon, namely a gun,⁶ the Crown must demonstrate beyond a reasonable doubt that:

(a) Mr. Burke intentionally:

(i) Applied force to N.M.;

(ii) Attempted or threatened, by act or gesture, to apply force to N.M.; or

(iii) While openly carrying a weapon or imitation weapon, accosted or impeded N.M.

(b) N.M. did not consent to the force or apprehended force by that Mr. Burke applied;

(c) that Mr. Burke knew that or was reckless as to whether N.M. did not consent to the force that he applied; and

(d) a weapon, namely a gun, was involved in the assault.

334While no gun was in evidence, I accept N.M.’s evidence that she heard Mr. Burke fire a gun as she walked into the field and that she saw him holding a gun when she was on the ground. N.M. had a very specific recollection of that particular incident, including dropping to her knees and vomiting when she heard the gun shot.

335I am satisfied that the Crown has proven the above elements beyond a reasonable doubt. Mr. Burke threatened, by firing and showing the gun, to apply force to N.M. He knew that she did not consent to the apprehended force.

Kidnapping with intent to confine, s. 247(1)(a)

336Kidnapping is an aggravated form of unlawful confinement that involves the complainant being confined and being moved without their consent. To demonstrate the offence of kidnapping under s. 247(1)(a) of the Criminal Code, the Crown must demonstrate beyond a reasonable doubt that:

(a) that Mr. Burke kidnapped N.M., meaning he took N.M. and moved her, by force or fraud, against her wishes, to another place; and

(b) that Mr. Burke kidnapped N.M. with intent to confine against her will.

337The elements of the offence of kidnapping are met when the complainant is unlawfully confined and then moved to another place. The offence continues until the complainant is freed or released: R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411, at para. 6.

338I note that I do not rely on s. 247(3) of the Criminal Code, which provides a reverse onus and was declared unconstitutional in R. v. Gough (1985), 1985 CanLII 3511 (ON CA), 7 O.A.C. 17 (C.A.).

339The defence submits that N.M.’s testimony that Mr. Burke showed the knife as soon as she opened the car door is inconsistent with the Synopsis, which states that N.M. voluntarily entered the car and the knife was not produced until later.⁷

340Whether N.M. voluntarily entered Mr. Burke’s vehicle is immaterial to the offence of kidnapping. Moreover, the complainant need not be confined for the entire duration of the offence; it is sufficient that the complainant was confined for a significant period of time: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.) at p. 475, leave to appeal refused (1985), 18 C.C.C. (3d) 462n (S.C.C.).

341Based on the evidence, I am not satisfied beyond a reasonable doubt that Mr. Burke produced the knife as soon as N.M. opened the car door. I am satisfied beyond a reasonable doubt that after N.M. entered the vehicle, Mr. Burke held a knife to her and forced her to put her legs under his so that she could not get out. Mr. Burke took N.M. to his apartment and refused to let her leave, despite her repeated requests. He then moved her to his car at knifepoint and transported her to an isolated area. Every time they changed location, he maintained control over her. Even when Mr. Burke told N.M. to get out of the car, she was too afraid to go, given Mr. Burke’s behaviour up to that point.

342I infer from N.M.’s repeated requests to be released, and Mr. Burke’s refusal to let her go until the following morning, that he kidnapped her with intent to confine her against her will. N.M. feared that Mr. Burke would kill or hurt her, and she was not free to leave at any time. The scratch marks on Mr. Burke’s face, as seen in the photograph taken after his arrest, and which he showed to A.E., are consistent with the struggle in the apartment, as described by N.M.

343I find that Mr. Burke committed the offence of kidnapping against N.M.

Overcoming resistance, s. 230(a)

344In order to demonstrate the offence of overcoming resistance to commission of an offence, the Crown must demonstrate beyond a reasonable doubt that:

(a) Mr. Burke intentionally choked, suffocated, strangled, or otherwise tried to render N.M. unconscious or incapable of resistance; and

(b) Mr. Burke choked/suffocated/strangled N.M. with intent to assist himself to commit an indictable offence.

345N.M. testified that when she was in Mr. Burke’s apartment, at one point, she refused to let him dominate her and attempted to fight back. Mr. Burke became angry. As they struggled, he put his hands around her neck and strangled her to the point of unconsciousness. Her next memory was waking up in the bathtub.

346Based on the evidence, I find that Mr. Burke intentionally choked N.M. to render her incapable of resistance. When N.M. attempted to resist Mr. Burke’s domination and confinement of her, he choked her until she was unconscious. She awoke in a vulnerable position, naked in the bathtub. Mr. Burke told her he could do anything with her.

347Alternatively, I find that Mr. Burke intended to choke N.M. to commit an indictable offence. Mr. Burke choked N.M. so that she would not be able to leave, and to continue to hold her against her will because he intended to continue to dominate her against her will. After the choking, Mr. Burke committed further offences against N.M., including assault and sexual assault with a weapon.

Uttering a threat, s. 243.4(1)

348In order to demonstrate the offence of uttering a threat under s. 243.4(1)(a) of the Criminal Code, the Crown must demonstrate beyond a reasonable doubt that:

(a) that Mr. Burke made a threat;

(b) that the threat was to cause death to N.M.; and

(c) that Mr. Burke made the threat knowingly, meaning he intended that the complainant be intimidated by the threat or that the threat be taken seriously.

R. v. O’Brien, 2013 SCC 2, [2013] 1 S.C.R. 7.

349Mr. Burke repeatedly made verbal threats to kill N.M. during the many hours that he held her against her will. Specifically:

• He produced a knife in the car and told N.M. that she would have to do everything he said or he would kill her;

• When N.M. awoke in the bathtub, Mr. Burke threatened to drain her blood and dispose of her body;

• Mr. Burke told N.M. that he could kill her because no one saw him pick her up;

• Before Mr. Burke sexually assaulted N.M. in the car, he told her that he would kill her if she did not comply;

• After the first assault, Mr. Burke told N.M. he would have to kill her to prevent her from going to the police;

• After they had been in the car for a significant amount of time, Mr. Burke told N.M. to get out of the car or he would kill her;

• Before the second sexual assault in the car, Mr. Burke told N.M. to put the seat back or “I’m going to fucking kill you” while holding the knife in his hand; and

• Mr. Burke tried to make N.M. take the knife from him, telling her that she would have to kill him or he would kill her.

350Not only did Mr. Burke make multiple unambiguous statements, the statements were made while he held or had access to a knife and while N.M. was confined and repeatedly assaulted. Many of the threats were made to compel N.M. to do something that she was not willing to do.

351N.M. testified that she feared for her life. Mr. Burke made those threats to secure N.M.’s compliance and to ensure that she would not report his conduct to the police. Given the factual context, it is reasonable to infer that Mr. Burke made the threats with the intention that N.M. be intimidated and that she take the threats seriously.

352I am satisfied beyond a reasonable doubt that Mr. Burke committed the offence of uttering a threat against N.M.

Findings on the Charges Relating to A.E.

353Mr. Burke is charged with similar offences in relation to A.E. The elements of each offence will not be repeated but will be examined in the context of the evidence.

The Defendant’s After-the Fact Conduct

354The Crown submits that Mr. Burke’s after-the-fact, or post-offence, conduct, specifically, his flight from the jurisdiction and the sale of his transport truck, is circumstantial evidence supporting an inference that he knew that what he did to A.E. was wrong.

355The defence does not object to the admissibility of the after-the-fact conduct evidence at issue in this case, but argues that it should be given minimal weight.

356Mr. Burke was arrested on September 18, 1986 and charged with the kidnapping and sexual assault of N.M. On September 22, 1986, he was released on bail with his brother, Robert Burke, as his surety.

357After the alleged kidnapping and sexual assault of A.E., Mr. Burke fled the jurisdiction. On October 28, 1986, a warrant in the first instance was issued.

358On November 18, 1986, Mr. Burke signed a power of attorney in Tennessee, authorizing Robert to sell his transport truck. On May 5, 1987, Robert filed a surety relief application. On May 15, 1987, a bench warrant was issued for Mr. Burke’s arrest.

359Mr. Burke assumed the name of “Darryl Wayne Jones” and obtained a driver’s licence under that name. He was detained in Colorado in 1987.

360In R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 161, Bastarache J. stated as follows:

Post-offence conduct is one type of circumstantial evidence. It is not fundamentally different from other kinds of circumstantial evidence. It can take various forms: what the accused said to others or the police; what the accused did not say to others or the police; what the accused did; what the accused did not do; and how the accused seemed to others (i.e. demeanour evidence). It can also be used for various purposes: to support inferences of consciousness of guilt or even to support inferences of innocence; to connect the accused to the scene of the crime or to a piece of physical evidence; or to undermine the credibility of the accused in general.

(Internal citations omitted.)

361There are no special rules of admissibility when evidence of after-the-fact conduct is used to support inferences of consciousness of guilt. The evidence is admissible as long as its probative value outweighs its prejudicial effect: R. v. Menard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109, at para. 23; R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.)

362Examples of after-the-fact conduct include a false alibi, flight, an alias, possession of a police scanner, false identification, escape from custody, resistance to arrest, lying to the police, or removal of blood from a car: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 34-35.

363In the circumstances of this case, the probative value of the evidence outweighs the prejudicial effect. Given that this is a trial by judge alone, the risk that the evidence of Mr. Burke’s after-the-fact conduct would be used to make an improper inference is minimal.

364In R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at para. 39, the Supreme Court stated: “it is well established that an inference of guilt may be drawn by circumstantial evidence such as flight from the scene of a crime or the fabrication of lies to the offence in question.” Nonetheless, inferences drawn from after-the-fact conduct can be based on assumptions about how an innocent or guilty person would act.

365In this case, after the incident with A.E., Mr. Burke fled to the United States. The fact that Mr. Burke asked his brother to sell his truck, which was essential to his livelihood, evinces an intention not to return to the jurisdiction. In addition, he assumed a false identity, demonstrating an ongoing desire to flee and avoid arrest. The defence offered no other explanation for Mr. Burke’s flight. Under the circumstances, it can reasonably be inferred from Mr. Burke’s flight and his authorization to dispose of his property that he knew that what he had done was wrong. The inference is further supported by A.E.’s testimony that Mr. Burke had told her that if she escaped and reported him to the police, he would flee to the United States, which he ultimately did.

Sexual assault with a weapon

366Mr. Burke first sexually assaulted A.E. in the car on the side of the highway. He had produced a knife and told her he was going to “get it for free.” He whipped her with his belt, penetrated her vagina and anus with his fingers and then forced vaginal and intercourse on her. A.E. testified that she was screaming and panicking when Mr. Burke whipped her and that she tried to calm herself down during the sexual acts to try to keep Mr. Burke calm.

367A.E. did not consent to the whipping or to the sexual acts. Mr. Burke had paid her for oral sex but said that he was going to get it “for free,” meaning that he was going to get more than oral sex. Moreover, because Mr. Burke used the knife to secure A.E.’s compliance, s. 244(3)(b) also applies here. There was no consent because of the threat or fear of the application of force.

368Mr. Burke also sexually assaulted A.E. while she was tied to a tree. Her pants were pulled down and her top was pulled up, so that her body was exposed. While whipping A.E. when she was tied to the tree, Mr. Burke stated that it “wasn’t doing anything for him” and was unable to get an erection. He continued to whip her. He repeatedly attempted to penetrate her with his penis. When he was unable to, he forced her to perform oral sex until he ejaculated. In both cases, the whipping preceded intercourse, or attempted intercourse, as well as digital penetration of A.E.’s vagina and anus.

369I am satisfied that Mr. Burke intentionally applied force to A.E. in circumstances of a sexual nature. During the first assault, Mr. Burke used a knife to secure A.E.’s compliance. A.E. did not consent and Mr. Burke knew that she did not consent to the force applied. A.E. testified that while Mr. Burke was whipping her, she thought she was going to die and pleaded for her life.

Sexual assault causing bodily harm

370In order to demonstrate the offence of sexual assault causing bodily harm, contrary to s. 246.2(c) of the Criminal Code, the Crown must demonstrate beyond a reasonable doubt that:

(a) Mr. Burke intentionally applied force to A.E.;

(b) A.E. did not consent to the force that Mr. Burke applied;

(c) Mr. Burke knew that A.E. did not consent to the force that Mr. Burke applied;

(d) the force Mr. Burke applied took place in circumstances of a sexual nature; and

(e) the force Mr. Burke applied caused bodily harm to A.E.

371“Bodily harm” is defined in s. 2 of the Criminal Code as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” The hurt or injury does not need to substantially or gravely interfere with the physical integrity or well-being of the complainant. The complainant does not need to be impaired in the functional use of the part of the body that is harmed: R. v. Moquin, 2010 MBCA 22, 251 Man. R. (2d) 160, at paras. 27, 28 and 31; followed in R. v. Tabanao, 2020 ONSC 3501, 167 W.C.B. (2d) 122, at para. 475, R. v. Duke, [2019] O.J. No. 6868 (S.C.)

372Bruising and swelling, where it interferes with the complainant’s health or comfort in a way that is not limited to a very short period of time or to a very minor degree can meet the definition of bodily harm: R. v. Peterson, 2017 ONSC 7008, 144 W.C.B. (2d) 114, at paras. 53-56; R. v. Rabiefar, 2003 CanLII 22353 (Ont. C.A.).

373To prove factual causation of bodily harm, the Crown does not need to prove that the assault was the only or predominant cause of the bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the injuries. The Crown need only prove that the sexual assault was “at least a contributing cause [to the bodily harm] outside the de minimis range.”: R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144, at para. 24.

374I have dealt with the issues of consent above. A.E. did not consent to the force applied by Mr. Burke, and he knew that she did not consent. Similarly, I have determined that the assaults took place in circumstances of a sexual nature.

375The sexual assaults caused A.E. to sustain a number of different injuries, including welts and bruising on her back, stomach, and legs. Photographs taken at the hospital show multiple welts, some with abrasions on the edges. A.E. testified that her whole body was in pain for two weeks and that it took her a couple of weeks to “feel almost normal.”

376While some of A.E.’s injuries, such as the injuries to her foot, resulted from her jumping out of the car, I find that she nonetheless experienced injury that interfered with her health or comfort and that was more than merely transient or trifling in nature as a result of the sexual assault.

377Accordingly, the Crown has demonstrated beyond a reasonable doubt that Mr. Burke committed the offence of sexual assault causing bodily harm to A.E.

Assault with a weapon (knife)

378After A.E. entered Mr. Burke’s vehicle, he brandished a hunting knife and pulled over the car. He told her he was going to “get it for free.” He then whipped and sexually assaulted her.

379The evidence demonstrates that Mr. Burke threatened to apply force to A.E. while carrying a weapon, the knife. Under the circumstances, A.E. did not consent to the threatened force and Mr. Burke knew that she did not consent.

380I find that the Crown has demonstrated beyond a reasonable doubt that Mr. Burke committed the offence of assault with a weapon, namely, a knife, against A.E.

Kidnapping

381Based on my factual findings, I am satisfied beyond a reasonable doubt that Mr. Burke committed the offence of kidnapping against A.E.

382Over a period of approximately 24 hours, Mr. Burke confined A.E. and moved her from his car to his transport truck and back to his car against her will. When A.E. was placed into the truck, Mr. Burke “hog-tied” her arms and legs and closed the sleeper compartment. Mr. Burke repeatedly told A.E. that he could not let her go because the marks on her body were proof against him. Although A.E. was able to loosen the ties when Mr. Burke left the truck to buy food, she was not certain that she could escape safely and was too terrified to try. At no point was A.E. free to leave, as evidenced by the fact that she jumped out of the vehicle on the highway to escape from Mr. Burke.

383As stated above in respect of N.M., it is immaterial that A.E. initially entered Mr. Burke’s vehicle voluntarily. Shortly after she got into the car, he produced a hunting knife and sexually assaulted her on the side of the highway.

384Mr. Burke’s intent to continue to confine A.E. is evident in his actions, specifically, his continued threats to hurt or to kill her, including while brandishing a knife; his physical confinement of her by tying and putting her in the sleeper compartment; and the forcible manner in which he transferred her to and from the truck. In addition, Mr. Burke did not at any time release A.E. To the contrary, he said he was taking her to his friend in Kingston and was headed east on the 401 when she jumped from the vehicle.

385I have no doubt that A.E. jumped out of the moving car on the 401. Mr. Burke was not otherwise willing to release her. The fact that A.E. took such a significant risk to get away from Mr. Burke supports her testimony that he was holding her against her will and that she feared for her life. Accordingly, I find that Mr. Burke committed the offence of kidnapping against A.E.

Unlawful confinement, s. 247(2)

386In order to demonstrate the offence of unlawful confinement, the Crown must demonstrate beyond a reasonable doubt that Mr. Burke intentionally confined A.E. and that the confinement was without lawful authority. The defendant has confined the victim when “if for any significant period of time (the victim) was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire.”: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

387Confinement does not require that the defendant totally physically restrain the victim. The defendant can confine the victim by rendering it unsafe for the victim to escape or by verbally or implicitly threatening violence if the victim attempts to leave: R. v. Gratton; R. v. Tremblay (1997), 1997 CanLII 10526 (QC CA), 117 C.C.C. (3d) 86 (Qc. C.A.), cited with approval in R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411.

388Because I have found that the Crown has proven the offence of kidnapping beyond a reasonable doubt, the charge of unlawful confinement under s. 247(2) of the Criminal Code, which is a lesser included offence to kidnapping, ought to be stayed: Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

Uttering a threat

389Mr. Burke repeatedly threatened A.E. during the approximately 24 hours he confined her. Specifically:

• After whipping A.E., he told her that he would have to kill her because she had marks on her body;

• While tying A.E. up, he told A.E. he would have to kill her because she had proof against him;

• After he discovered that A.E. had loosened her bonds, he said “what are you doing, I’ll kill you”;

• He threatened to kill her during the time she was held; and

• While whipping A.E. when she was tied to a tree, Mr. Burke threatened to kill her;

390Mr. Burke threatened A.E. while confining her against her will, while brandishing a knife and while assaulting her. Under the circumstances, there is no other reasonable inference than that Mr. Burke intended that A.E. be intimidated and that she take the threats seriously.

391I am satisfied beyond a reasonable doubt that Mr. Burke committed the offence of uttering a threat against A.E.

Conclusion

392In summary, I have carefully considered the required elements of each of the offences charged, both in relation to N.M. and A.E., and made findings of fact relating to each of them. For greater certainty, in assessing whether the Crown has met its burden of proof, I have considered the items of lost evidence in respect of both N.M. and A.E. and considered whether they would have assisted the defence. I have also considered the lost evidence in assessing the credibility and reliability of the complainants’ testimony.

393For all the foregoing reasons, the Crown has proven beyond a reasonable doubt all of the counts, with the exception of the charge for unlawful confinement in relation to A.E, which is stayed. Accordingly, I find the accused, Raymond Burke, guilty of all of the charges.

Nishikawa J.

Released: November 5, 2021

Appendix A: Relevant Statutory Provisions

Criminal Code, R.S.C. 1970, c. C-34 (as it appeared on August 31, 1986)

Overcoming resistance to commission of offence -- s. 230

230. Every one who, with intent to enable or assist himself or another person to commit an indictable offence,

(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or

(b) administers, or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing,

is guilty of an indictable offence and is liable to imprisonment for life.

1953-54, c. 51, s. 218; 1972, c. 13, s. 70.

Uttering threats -- s. 243.4

243.4 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or serious bodily harm to any person;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.

Punishment -- s. 243.4(2)

(2) Every one who commits an offence under paragraph (1)(a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years.

Idem -- s. 243.4(3)

(3) Every one who commits an offence under paragraph (1)(b) or (c)

(a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

1985, c. 19, s. 39.

Assault with a weapon or causing bodily harm -- s. 245.1

245.1 (1) Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or

(b) causes bodily harm to the complainant,

is guilty of an indictable offence and is liable to imprisonment for ten years.

Definition of "bodily harm" -- s. 245.1(2)

(2) For the purposes of this section and sections 245.3 and 246.2, "bodily harm" means any hurt or injury to the complainant that interferes with his or her health or comfort and that is more than merely transient or trifling in nature.

1980-81-82-83, c. 125, s. 19.

Sexual assault with a weapon, threats to a third party or causing bodily harm -- s. 246.2

246.2 Every one who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof,

(b) threatens to cause bodily harm to a person other than the complainant,

(c) causes bodily harm to the complainant, or

(d) is a party to the offence with any other person, is guilty of an indictable offence and is liable to imprisonment for fourteen years.

1980-81-82-83, c. 125, s. 19.

Kidnapping -- s. 247

247. (1) Every one who kidnaps a person with intent

(a) to cause him to be confined or imprisoned against his will,

(b) to cause him to be unlawfully sent or transported out of Canada against his will, or

(c) to hold him for ransom or to service against his will,

is guilty of an indictable offence and is liable to imprisonment for life.

Forcible confinement -- s. 247(2)

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years.

Non-resistance -- s. 247(3)

(3) In proceedings under this section the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.

1953-54, c. 51, s. 233; 1985, c. 19, s. 40(2).

Footnotes

1. 1Both the Synopsis and A.E.’s statement are prior consistent statements and are not admitted for the truth of their contents. I refer to them for the limited purpose of rebutting the assertion of collusion and the defence of recent fabrication.
2. 2One TPS officer involved in N.M.’s case, Daniel O’Callaghan is deceased.
3. 3One TPS officer involved in A.E.’s case, Bryan Lye, is deceased.
4. 4The 1986 Synopsis itself, however, is mis-dated February 18, 1986 on the first page. Subsequent pages are dated September 18, 1986. The first name of N.M.’s next of kin is also mistaken.
5. 5The Synopsis is not admitted for the truth of its contents but to rebut the defences of recent fabrication and, in relation to the similar fact application, collusion.
6. 6While “firearm” is defined in the Criminal Code, and the subject of specific provisions, “gun” is not. I accept the Crown’s position that it does not have to prove that the “gun” was a firearm.
7. 7As noted above, the 1986 Synopsis is hearsay and is not admitted for the truth of its contents.