COURT FILE NO.: 18-RA19548

DATE: 20210204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G. C.

V. Stewart, for the Crown

K. Hyslop and M. Day, for the Accused

HEARD: January 11, 2021

Restriction on Publication

An Order was made under section 486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainant or witnesses by name and may be published.

REASONS FOR decision on lost evidence

Roger j.

[1] The accused is charged with two Criminal Code offences: sexual assault contrary to s. 271 and sexual exploitation contrary to s. 153 (1). The offences cover the period from August 1998 to September 2001.

[2] The complainant was 14 to 17 years old at the time of the alleged offences. He had met the accused and his spouse when he was placed in a group home they managed. Later, he became their only foster child and it is then that the complainant says that he was sexually abused by each of his foster parents, without the other knowing. The complainant alleges that between August 1, 1998 and September 18, 2001, the accused engaged in sexual touching of the complainant, including fellatio, groping and attempted anal sex.

[3] The accused brings this lost evidence application, arguing that this proceeding should be stayed under ss. 7 and 24 (1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (“the Charter”) because some disclosable evidence (an early statement made by the complainant in 2002) was destroyed by the police. The application was heard at the conclusion of the trial, just prior to the closing submissions.

Factual Overview

[4] The complainant makes serious allegations, and all were denied by the accused. As a result, when deciding this matter, the court’s assessment of the credibility and reliability of the witnesses will be important.

[5] The indictment covers events between August 1, 1998, when the parties moved to the Beaverbrook residence, and September 18, 2001, the day before the complainant’s 18th birthday.

[6] As the alleged events go back 20 years, it is understandable that the complainant occasionally had difficulty remembering dates and details that occurred when he was a teenager. However, the complainant agreed that if dates were difficult, he would be better able to relate events based on what happened before or after a significant event or based on the location where the event occurred.

[7] The complainant testified relatively well during his examination in-chief, but on occasion his memory needed to be refreshed. This was understandable when dealing with dates and details but was occasionally less understandable when dealing with key events and the specific of material allegations. The complainant was challenged during his cross-examination and occasionally became hostile to defence counsel. As well, he was occasionally contradicted, and at times, it was apparent that he tried to paint the accused in the worse possible light.

[8] The accused testified, denying all allegations and did so relatively clearly. He was cross-examined at length but steadfastly denied all allegations.

[9] The complainant testified that he was introduced to the accused and his spouse when he was placed in their group home in August 1997. He stayed there for one year. Thereafter, he moved with the accused and his spouse to a property on Beaverbrook. He was happy to move to that property with them and to become their foster child. It is there, he alleges, that the sexual abuse started. He lived with them at that property until October 2000. In October 2000, the complainant and the accused were involved in a physical altercation over the complainant smoking marihuana in the home, and the Children’s Aid Society (“CAS”) terminated their foster child relationship. The complainant, nonetheless, occasionally continued to reside with the accused until the complainant was about 23 years old.

[10] The complainant agreed that moving in with the accused and his spouse at Beaverbrook to be their foster child was a mutual decision and that he wanted this at the time. However, during his cross-examination, the complainant agreed that, in earlier statements, he had indicated that he had been persuaded or pushed into doing this. He testified that his earlier statements that he had been persuaded or pushed were a bit much because he too had wanted it, and he denied that he had said that he was pushed in order to support his claims. He testified that this suggestion that he had said this to support his claims was ridiculous because he had probably been persuaded or pushed since he was only 13 at the time.

[11] The complainant testified that the first incident with the accused occurred at the Beaverbrook property and involved fellatio. He said that while playing a video game in the basement, the accused suggested “that the loser would suck the dick of the other”. He said that the accused had previously mentioned that his friends had made a similar bet for a game of tennis. The complainant said that he and the accused were probably drinking and smoking marihuana at the time. He said that he intentionally lost that video game and agreed to perform fellatio on the accused in the accused’s bedroom.

[12] The complainant said that he was frequently sexually abused by the accused at the Beaverbrook property, during camping trips, and when they travelled to visit the accused’s family. He said that these events involved groping. During his cross-examination, he recalled little specifics, saying “that the stuff in the middle all blurs together”.

[13] The complainant said that they went camping approximately 7 to 11 times. He recalled that the accused’s spouse came on one of those camping trips and that most were in the province of Quebec. After having his memory refreshed by the Crown by looking at the records of the CAS, he recalled a camping trip with the accused and his spouse in Ontario during the summer 1998. During his examination in-chief, he said that this camping trip happened after the fellatio incident. He said that it was during this trip that the accused’s spouse observed the accused groping him and that she had confronted the accused about it. He said that the accused had rubbed his backside, while the three were trying to sleep in the same tent. He said that he complained to the accused’s spouse and that the accused stopped, claiming that he had been sleeping at the time. During his cross-examination, the complainant agreed that, in an earlier statement to the police, he had said that this camping trip occurred in the province of Quebec. As well, the timing of this event is unclear as it appears that this camping trip might have happened in July 1998 before the parties had moved to the Beaverbrook residence on August 1, 1998, yet the complainant testified that the fellatio incident occurred at the Beaverbrook residence before this camping trip.

[14] The complainant said that he was sexually abused by the accused while at the Beaverbrook residence. He said that the abuse consisted of groping. The accused would buy him cigarettes, give him marihuana, and that they would frequently get high together while playing video games. He said that the accused would then ask him to sleep it off, and while he slept, he would wake up to the accused groping him or lying in bed with him. He said that the accused would then touch him over or under his clothing and that this occurred at least 20 times and usually while the complainant was trying to sleep. He said that this abuse continued after October 2000, at the Downpatrick residence, when the accused was no longer his foster father.

[15] The complainant agreed that he used marihuana before meeting the accused but said that his consumption was infrequent. He said that his consumption of marihuana increased while with the accused, and that he was often under the influence of alcohol which was provided by the accused. He testified that the accused frequently got him high and then told him to sleep it off before the accused’s spouse returned so that she would not notice. He said that this is when some of the groping occurred. However, the accused’s spouse then worked at a group home where she slept and only returned home on day three. When confronted with this during his cross-examination, the complainant said that the accused also asked him to sleep it off to make sure that the complainant would not experience an adverse reaction to the marihuana and alcohol. However, the complainant agreed that he had been using for some time and that he had never experienced a bad reaction. When challenged about this, the complainant became angry and responded by saying that this is what he remembers.

[16] The complainant said that when they visited the accused’s family, the accused made some excuse or found a way that they would end up sharing a bed. He said that if alcohol was involved the accused would be groping him over his clothing during the night and that he would have to push him off.

[17] The complainant said that the last time that he was sexually abused by the accused was at the Downpatrick residence. He said that, during this time, the accused frequently ended up in his bed during the middle of the night. He said that on one such occasion, he woke up to the accused trying to push his penis into his anus. He said that he pushed off the accused and threatened him never to try this again; he said that the accused claimed that he had been sleeping. During his examination in-chief, the complainant said that this probably happened before he went to the police; he said “a few months before, that it would have been a couple of months before” he went to the police - he went to the police in October 2002, and said that he was dating his girlfriend, S, when he went to the police. However, at the preliminary enquiry, the complainant testified that he did not report this incident to the police when he spoke to them in 2002 because it had not happened yet, which contradicts his evidence at trial.

[18] The complainant testified that he first reported his allegations to his then girlfriend, S. She testified that this verbal report did not include any details about the alleged sexual abuse.

[19] The complainant also testified that he next reported his allegations to his former neighbour, Carol. No evidence was presented at trial as to whether this report included any details about the alleged sexual abuse.

[20] On October 7, 2002, the complainant verbally reported to the Ottawa Police Service that the accused had sexually abused him. According to the duty book notes of the attending police officer, the complainant “… advised he had been abused by his foster father, G.C. since he was 13 years old up until approx. 6 months ago. G.C. ran a CAS home on Harcourt when victim began living there. The home closed about one year later and victim began living with G.C. on Downpatrick, south end. Abuse began shortly after. A written statement was taken detailing events.”

[21] It is agreed, on this application, that the written statement referenced above was a two or three-page statement written by the complainant detailing his allegations. This is the statement that has been destroyed by the police (hereinafter “the lost 2002 statement”).

[22] As a result of being informed of the above, the police opened a general occurrence file, marked as “sex assault interference”, described as “complainant advises of historical sexual abuse by foster father”, and cleared with the remarks, “Report taken to be investigated by the sex assault and child abuse unit”.

[23] A detective was assigned to investigate this matter. On October 10, 2002, this detective disclosed the complainant’s allegations to the CAS. The notes of the CAS indicate that the detective called “to inquire as to whether G.C. has kids in his care because the complainant is making historical allegations of sexual touching and fellatio. Apparently, G.C. was his foster father up until recently when he got kicked out. The complainant said that the abuse commenced when he was 13 and ended 6 months ago. No other kids implicated.”

[24] At some point, the detective contacted the complainant in order to schedule a video interview. The complainant declined to be interviewed and the investigation did not proceed any further.

[25] In 2017, the complainant renewed his complaints against the accused and made other statements which led to the trial of this matter.

[26] To summarize, the complainant made the following statements regarding his allegations against the accused:

• The complainant said that he told the spouse of the accused back then, when he was 15 or 16 years old.

• He reported the alleged abuse to S, a lady who was his girlfriend from about 2001 to early 2003. S testified and said that this verbal report to her by the complainant did not include any details about the allegations of sexual abuse. She was not certain but said that the complainant possibly told her late in 2001 that he had been abused by the accused.

• He reported to his former neighbour, Carol, that he had been sexually abused by the accused. The complainant testified that he told Carol, that Carol and a friend of hers confronted the accused, that the accused denied the allegations, and that the complainant felt that they had not believed him. The accused testified that about September 2002, his neighbour Carol approached him to say that the complainant had told her that he had been sexually assaulted by the accused. The accused testified that no details were then provided to him by Carol.

• October 7, 2002: the complainant made a verbal report to the Ottawa police – see paragraph 20 above.

• October 7, 2002, or thereabouts: the missing/destroyed two to three-page written statement of the complainant to the Ottawa police was prepared – see paragraph 21 above – the lost 2002 statement.

• October 18, 2017: the complainant called 911. The complainant mentioned being sexually abused over 18 years ago, starting when he was 14. He said that he was being groomed, that he was given cigarettes and alcohol, and that “when he would basically get me high and make me go to sleep and then sexually assault me”.

• October 19, 2017: the complainant spoke with a CAS worker. That statement was marked Exhibit G at trial, and the portions of the CAS file ordered produced were marked exhibit D. In Exhibit G, dated October 19, 2017, the complainant provides a description of what he alleges against the accused.

• Between October 18 and 20, 2017: the complainant prepared a typed statement. In that statement, the complainant describes the allegations against the accused.

• November 27, 2017: the complainant was interviewed by a detective of the Ottawa police and gave a full account of his allegations.

• June 28, 2018: the complainant was interviewed by another detective of the Ottawa police. The complainant was asked clarifying questions and went over his allegations.

• September 5, 2019: the complainant testified at the preliminary inquiry.

• December 9 – 15, 2020: the complainant testified at the trial of this matter.

[27] The detective who was assigned to this matter in October 2002, and who contacted the CAS, as indicated above, has no recollection of speaking with the complainant. In a statement admitted on consent for purposes of this application, the detective explains that when she worked in the sexual assault and child abuse unit of the Ottawa Police, she kept a book in which she entered each case that she worked on. She cannot be certain that she would have entered her meeting with the complainant in that book, and in fact, she believes that it is unlikely because a case number was not generated. However, the detective is confident that she did not destroy this book and says that when she left the unit, she sent this book to the filing unit at the Ottawa Police. She tried to locate that book and has been unsuccessful. She spoke with the person responsible for the storage of such books and he advised her that he could not find that book.

[28] In another statement admitted on consent for purposes of this application, the person responsible for the archive and file storage at the Ottawa Police indicates:

• In 2002, handwritten statements that were submitted to the records department were placed inside the general occurrence report file folder. The file folders were labelled, filed in numerical order, and retained on shelving units in the filing room.

• She supervised the searches made for the missing handwritten statement of the complainant, without success; the missing statement could not be found. They also looked for the detectives’ missing notebook assigned to this matter in 2002, and it also could not be found.

• A record of destruction indicates that the hard copy and digital contents of general occurrence reports for 2002 were destroyed in 2010.

[29] The Ottawa Police Service policies dictate that the contents of police files can be purged and destroyed after a prescribed retention period. The nature of the file dictates the length of the retention period. Files are marked with a code that identifies the nature of the file and the corresponding retention period. For sexual assault reports, the retention period is 35 years.

[30] In 2002, the date the report in question was submitted, report coding for historical sexual assault was initially classified as information general with a 36-month retention period. During that 36-month time period, if the victim wished to proceed further with an investigation, the report would then be reclassified to a sexual assault code, and then benefit from a 35 years retention period. This was the process in place in 2002. As a result, if the information report was not reclassified to a sexual assault code or somehow cross-referenced to another file, the report would eventually be eligible for purging and destruction after the prescribed 36-month period applicable to material coded as information general.

[31] Consequently, the content of the general occurrence file assigned to the missing statement in 2002, including the missing or lost 2002 statement, were eligible for purging in February 2006, and it is agreed, were in fact destroyed in 2010.

[32] In 2014, a new internal code was created by the Ottawa Police for the initial classification of historical sexual assault with a retention period of 35 years to match other sexual assault type reports.

[33] By way of comparison, in 2002, the Ottawa Police retained simple assault files for 35 years.

[34] The accused argues that it is probable that the lost 2002 statement of the complainant contained assertions that are inconsistent with what the complainant said in his subsequent statements. He says that this is probable because in his other statements, the complainant made inconsistent allegations. For example, the accused alleges that the complainant made inconsistent statements about the location of the alleged camping incidents where A.S. was present, about the accused’s alleged failure to enroll him in sports, and about the nature of the final incident at the Downpatrick residence. The accused asserts that, from this pattern of inconsistencies within the complainant’s subsequent statements, it can be inferred that the lost 2002 statement probably included assertions that were inconsistent with the complainant’s subsequent statements. The accused also argues that the above is probable because the two second-hand descriptions of the lost 2002 statement found in the officer’s notes and in the other officer’s report to the CAS contain assertions that are inconsistent with the complainant’s later statements. Both refer to the sexual abuse starting when the complainant was 13 years old, when according to the timeline, the complainant would have been 14 or 15 years old when it allegedly started. As well, the notes of one of those officers indicate that the abuse began when they were living on Downpatrick which contradicts subsequent statements and the evidence of the complainant at trial that it began at the Beaverbrook residence. The accused alleges that, from these apparent inconsistencies, it can be inferred that the lost 2002 statement probably included material inconsistencies.

[35] The accused argues that the Ottawa Police were negligent in failing to preserve the lost statement and that the appropriate remedy is a stay of these proceedings because his ability to make full answer and defence was prejudice, as indicated above.

[36] The Crown argues that the destruction of the lost statement was not the result of unacceptable negligence. The Crown says that there is a satisfactory explanation of the circumstances surrounding the destruction of the lost statement, including that in 2010, this occurrence report was not perceived as relevant (a follow-up report was not made by the complainant to the police until 2017). The Crown argues that a stay of proceedings is the most significant remedy a court can issue and that one is not warranted in this case.

[37] The parties filed an Agreed Statement of Facts, which is summarized above and reproduced below:

Agreed Statement of Facts

[38] The Applicant and the Respondent agree that the evidence adduced at trial is admissible in the Application regarding lost or destroyed evidence.

[39] The Applicant and the Respondent further agree to the following facts for the purpose of the Application regarding lost or destroyed evidence:

Existence of the 7 October 2002 Statement

1. On 7 October 2002, the complainant verbally reported to Ottawa Police Service Constable Urquhart that the Applicant had sexually abused him. According to Constable Urquhart’s duty book notes:

… advised he had been abused by his foster father, G.C. since he was 13yrs up until approx. 6mo ago. G.C. ran a CAS home on Harcourt when victim began living there. The home closed about 1yr later and the complainant began living with G.C. on Downpatrick, south end. Abuse began shortly after.

At this time, the complainant also wrote a two- or three- page statement detailing his allegations (hereinafter referred to as “the destroyed statement”).

2. As a result of this report, the Ottawa Police Service opened general occurrence file #02-223964. This file was marked as “sex assault interference,” described as “compl[ainant] advises of historical sexual abuse by foster father,” and cleared with the remarks “report taken to be investigated by [the Sexual Assault and Child Abuse unit].”

3. Detective Kelm was assigned to investigate this matter. On 10 October 2002, Detective Kelm disclosed the complainant’s allegations to the Children’s Aid Society, reporting that:

Complainant is making historical allegations of sexual touching + fellatio. Apparently, G.C. was his foster father up until recently when he got kicked out. Complainant said that the abuse commenced when he was 13 + ended 6 months ago.

At some point, Detective Kelm contacted the complainant in order to schedule a video interview, but the complainant declined to provide that interview.

Destruction of the 7 October 2002 Written Statement

4. The Ottawa Police Service’s policies dictate that the contents of police files can be purged and destroyed after a prescribed retention period. The nature of the file dictates the length of the retention period. Files are marked with a “code” that identifies the nature of the file and the corresponding retention period. For sexual assault reports, the retention period is thirty-five years. Purging and destruction involve shredding the hard copy of the file and deleting the digital copy of the file.

5. In 2002, the date the report in question was submitted, report coding for historical sexual assault was classified at Information (General) with a 36-month retention period. This Uniform Crime Reporting (UCR) code is an internal code not reportable to Stats Canada’s Canadian Center for Justice Statistics (CCJS). During that 3-year time period, if the victim wished to proceed further with an investigation, the report would be reclassified to a sexual assault UCR code and reported to CCJS and a Violent Crime Linkage Analysis System report submitted. This was the process in place in 2002 as directed by SACA. If the Information report was not reclassified or cross-referenced to another file, the report would be eligible for purging after a 36-month period. The contents of general occurrence file #02-223964 – including the impugned statement – were eligible for purging in February 2006 and were in fact destroyed on 13 July 2010.

6. In 2014, a new internal UCR code was created for Historical Sexual Assault with a retention period of 35 years to match other sexual assault type reports. This UCR code was also not reportable to CCJS and was used for internal reporting purposes until such time as an investigation was further initiated. This process change was at the request of SACA. In 2016, new direction was received from SACA that all sexual assault reports regardless whether historical in nature should be classified as a criminal code sexual assault and reported to CCJS. This process is currently still in place.

7. The Ottawa Police Service has exhausted all possible efforts to locate a hard or digital copy of the impugned statement or any other incidental records about that statement.

Existence and non-destruction of 18 October 2000 reports

8. On 18 October 2000, the complainant had reported to the Ottawa Police Service that he had been physically assaulted by the Applicant. As a result of this report, the Ottawa Police Service opened general occurrence file #00-207015. This file was marked as “assault level 1.” The retention period for an “assault level 1” is 420 months. The General Occurrence Hardcopy of this report – including the typed reports of two responding officers, Constable Hall and Constable Livingstone – were not purged and destroyed. This report was disclosed to the Applicant in these proceedings.

Applicable Law and Analysis

[40] The lost 2002 statement is a document that the accused was entitled to receive as part of the Crown’s disclosure (see R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at paras. 11, 12, 17, and 29 and R. v. McNeil, 2009 SCC 3, 1 S.C.R. 66, at paras. 17 - 24). The duty to disclose imposes a corresponding obligation upon the Crown to preserve relevant evidence.

[41] If a document that should have been disclosed to the accused is lost or destroyed, then the accused’s rights under s. 7 of the Charter may have been violated, and the accused may be entitled to a stay of proceedings under ss. 24 (1) of the Charter, as this is one of the components of the right to make full answer and defence protected by s. 7 (see R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80).

[42] A stay of proceedings is a discretionary remedy and the applicable analysis is summarized in R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 71:

71 …The legal principles for determining if there is a section 7 Charter breach in the context of lost information and the guidelines for determining the appropriate remedy can be briefly stated. When evidence is lost or destroyed the Crown must satisfy the trial judge that the evidence has not been destroyed or lost due to unacceptable negligence. Section 7 has been breached if the trial judge finds that the evidence was lost due to unacceptable negligence. If the trial judge finds that there was no unacceptable negligence, then the Crown has not breached the duty to disclose. The onus then shifts to the accused. If the evidence was not lost due to unacceptable negligence then, in order to establish a breach of section 7, the accused must demonstrate that actual prejudice resulted from the loss of the evidence. If the trial judge determines that there has been a breach of section 7 (either through unacceptable negligence by the Crown or actual prejudice’s being caused by the loss of the evidence), the trial judge must then determine the most appropriate remedy under section 24(1). A stay of proceedings is only appropriate in the “clearest of cases” when the following conditions are met: (a) the prejudice caused will be manifested or perpetuated through the conduct of the trial or its outcome; and (b) no other remedy is reasonably capable of removing the prejudice.

[43] The jurisprudence recognizes that despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. Thus, even if evidence was relevant and requested, a Charter breach is only established on this ground where relevant evidence is lost because of the Crown’s unacceptable negligence (see: R. v. La (appeal by Vu), 1997 309 (SCC), [1997] 2 S.C.R. 680 at paras. 20-21).

[44] As indicated in La, at para. 21, to determine if the explanation of the Crown is satisfactory:

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

[45] The Crown argued that the system in place at the time, by the Ottawa Police, was adequate and not unacceptably negligent because the retention period would have been the longer 35 years if a follow up report had been made by the complainant and because in 2010, this occurrence report was not perceived as relevant since a follow-up report had not been made by the complainant to the police until 2017.

[46] However, excepting the information admitted on consent, described above, the Crown presented no evidence that such a system was then reasonable, and no evidence in support of its argument that the lost statement was not destroyed as a result of unacceptable negligence. More specifically, the Crown presented no evidence why it should not have been apparent to the Ottawa Police in 2002 and prior to its destruction in 2010, that a 2 - 3 page statement made in 2002 about allegations of sexual abuse occurring since 1998 and ending six months ago would have a relatively high degree of relevance.

[47] The Crown argued that in historical sexual assault prosecutions, police do not need to preserve, for a reasonable period of time, a statement if they believe that there is no prospect that an investigation will be reopened 5, 10 or 15 years later. However, the Crown presented no evidence to establish that the Ottawa Police formulated that belief in 2002 or in 2010 prior to the destruction of the 2002 lost statement, and no evidence that such a belief would then have been reasonable.

[48] The onus to disprove unacceptable negligence is on the Crown, and without evidence to the contrary, I assume that it should have been known by the Ottawa Police prior to July 2010 that “these types of cases have a habit of resurfacing 10, 20 or 30 years or more, down the road” (see: R. v. B.E., 2016 ABPC 91, 35 Alta. L.R. (6th) 284 at para. 133). Moreover, this argument of the Crown also runs contrary to what the Court of Appeal stated in R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at paras. 30, 32, 33, and 34. What matters is whether the information is relevant in the broadest terms. As indicated by the Court of Appeal:

30 The phrase “unacceptable negligence” suggests conduct which is more than merely negligent. However, my review of the cases indicates that the reasonableness of the police conduct resulting in the loss or destruction of the evidence is a touchstone of the inquiry. The more obvious the importance of the evidence, the higher will be the degree of care expected of reasonable police officers”.

32 The trial judge’s finding that the destruction of the text messages was not unacceptable negligence was predicated on the UC’s evidence that the messages contained only discussions about plans to meet and other social chitchat. It is, however, no part of the police function when considering whether material should be preserved for disclosure purposes to assess the potential significance beyond a consideration of relevance in the broadest sense. In my view, it is unacceptable that, almost 30 years after Stinchcombe, the UC could operate under the belief that he need save only relevant material that he viewed as significant. [Emphasis added]

33 I think a reasonable officer in the position of the UC would have appreciated that the prosecution would ultimately turn largely on the communications between himself and the appellant, and that it was therefore important to preserve all communications between them. Indeed, the UC seemed to appreciate the need to preserve the content of the text messages since he went to the trouble of making verbatim handwritten copies of the contents before destroying the actual text messages.

34 Given the nature of the investigation, the destruction of the text messages fell well below what should be expected of a reasonable police officer properly informed of the prosecution’s disclosure obligations. The Crown failed to show the absence of unacceptable negligence

[49] As indicated above, the lost 2002 statement was relevant. It therefore should have been preserved for a reasonable period of time. This is not a case of a relevant document being accidentally or unintentionally destroyed. In this case, a relevant document, the lost 2002 statement, was destroyed on July 13, 2010, as a result of the Ottawa Police applying the existing storage and retention system described in the Agreed Statement of Facts. The real questions therefore are, for how long was it then reasonable for the police to preserve the lost 2002 statement, and did its destruction in July 2010 constitute unacceptable negligence?

[50] In examining whether there was unacceptable negligence, it would have been helpful to have some comparison with what was reasonable at the time that the file was destroyed. As indicated above, other than what was filed on consent, the Crown presented no evidence to support its argument that the system then in place was reasonable.

[51] What the court has is evidence that, for an initial report of historical sexual assault made in October 2002, the Ottawa Police then coded the initial report as information general, which had a 36-month retention period. During that three-year period, if the victim wished to proceed further with an investigation, the report would be reclassified to a sexual assault, and would then be subject to the longer retention period of 35 years. However, as happened here, if no triggering event occurred during the applicable 36-month retention period, then that file or information could be destroyed at the end of the 36-month retention period.

[52] By comparison, it appears that information relating to a simple assault was retained for 35 years. As well, it appears that in 2002, the Ottawa Police recognized that sexual assault files should be retained for 35 years. Moreover, in 2014, the Ottawa Police implemented a new internal code for historical sexual assault with a retention period of 35 years, such that if this had happened thereafter, the lost 2002 statement would be available and would remain available for 35 years.

[53] Historical sexual assaults are matters involving allegations that date back in time. Such cases involve a complainant that, for whatever reasons, did not report the allegation shortly after it happened, but some time later. As indicated above, these cases seem to resurface in the future. It therefore seems foreseeable that in some such cases, a victim, who initially reports some time after the events, might then be reluctant to proceed expeditiously and might, after an initial report, wait further, sometime years, until he or she is ready to proceed with the matter. Although I have no evidence of what the Ottawa police knew in July 2010 when the lost 2002 statement was destroyed, I know that only four years later, in 2014, the Ottawa Police implemented a new internal code for historical sexual assaults with a 35 years retention period. I also know that the lost 2002 statement was a 2 – 3-page statement prepared by the complainant in October 2002, in which he detailed his allegations. From the Agreed Statement of Facts, I know that it probably detailed his allegations of sexual touching and fellatio. As a result, it seems reasonable to conclude, as I did above, that the lost 2002 statement had a high degree of relevance.

[54] Considering the above, I find that the Crown has not met its onus of showing that the lost 2002 statement was not destroyed due to unacceptable negligence. I therefore find that s. 7 of the Charter has been breached. However, it should be clear from the evidence and from the above, indeed it is not argued, that this is not a case involving any deliberate misconduct or bad faith on the part of the police or the Crown in how they dealt with the lost 2002 statement; the police simply applied the existing policy.

[55] The next question is, what is the appropriate remedy under s. 24(1)?

[56] Section 24(1) of the Charter “requires the court to impose the “appropriate and just” remedy in the circumstances. In making that judgment, the actual prejudice caused to the defence is a significant consideration” (Hersi, at para. 36). Indeed, a stay of proceedings is only appropriate in the “clearest of cases” or only in extraordinary circumstances (Hersi, at para. 25). A stay may be warranted when (a) there is prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (b) there is no other or alternative remedy capable of removing or redressing the prejudice. If after conducting this analysis there is still uncertainty over whether a stay is warranted, the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits (see: R. v. Babos, 2014 SCC 16, 1 S.C.R. 309).

[57] Applying the above, for reasons that follow, I find that the circumstances of this case are not extraordinary circumstances or that this is not the “clearest of cases” such that a stay of proceedings is not warranted because of the absence of substantial or material prejudice to the accused from the destruction of the lost 2002 statement.

[58] The cases relied upon by the accused are different from the circumstances of this case. For example, R. v. Daye, [1999] O.J. No. 1994 (Ont. C.A.) involved a case with serious inconsistencies between the missing statement and the complainant later evidence. Similarly, R. v. R.C.S., 2004 2004 NSSC 232, 227 N.S.R. (2d) 321 involved evidence of sufficient discrepancies between the missing portion of the interview and the account taken in the notes. This is even more apparent in the decision of R. v. Grabowski, 2009 O.J. No. 5497 (Ont. Ct.) where the court found significant inconsistencies. Here, there is no evidence of material prejudice to the accused and a theoretical probability of some prejudice is not sufficient.

[59] Indeed, the second-hand descriptions of the lost 2002 statement found in the detective’s notes and report following the reporting to the CAS are not materially inconsistent with the complainant’s later statement. The age difference of “13 years up” is not a material inconsistency in comparison to his later statements and evidence that would put his age at 14 or 15. Nor is the fact that the officer noted that the alleged sexual abuse began at the Downpatrick residence when later allegations are that it began at the Beaverbrook property, because it is clear from the notes that it began in the residence that immediately followed the Harcourt group home. As well, the notes of the officer who disclosed the allegations to the CAS make it clear that the allegations in the lost 2002 statement related to sexual touching and fellatio covering the relevant period of time and the accused had access to five other statements of the complainant, each containing some inconsistencies, and was able to conduct a thorough cross-examination of the complainant.

[60] A key consideration is whether there is other evidence available to attack a complainant’s credibility (see: R. v. Graham, 2019 ONSC 15 at paras. 39-41 and R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153.

[61] As indicated in Sheng, at paras. 46 – 48:

46 When evidence is lost, assessing prejudice is invariably problematic and, to some degree, speculative. However, the respondent was not entitled to a stay merely because he was deprived of relevant evidence. To justify a stay the respondent had to show that the lost evidence prejudiced him in a substantial or material way. The trial judge concluded that the lost evidence would assist the respondent in a material way:

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

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

48 In this case, records available from the two 1994 investigations, records from 2005-2006 when the investigation was reopened and charges were laid, and information from the complainants’ own evidence substantially diminished any prejudice to the respondent from the lost evidence, and cumulatively rendered a stay unreasonable.

[62] In this case, defence counsel had the following evidence which they used to challenge the complainant’s credibility:

• exhibit D, CAS records (including notes of the detective’s phone call reporting the accused to CAS in 2002);

• hockey photographs;

• disclosure of police occurrence reports related to the October 2000 assault investigation;

• notes taken by the officer from first sexual assault complaint to police in 2002;

• the complainant’s email statement;

• the complainant’s 911 call;

• two video statements (2017 and 2018); and,

• the preliminary hearing transcript, all of which were used during the accused’s cross-examination of the complainant.

[63] The accused has therefore not established actual prejudice to his right to make full answer and defence, and his request for a stay of proceedings is dismissed.

[64] The accused did not seek a remedy short of a stay. The Crown suggested, as an alternative to a stay, either an adjournment to allow the accused the opportunity to call the neighbour, Carol, over what was related to her by the complainant at the time or, alternatively, that I consider the breach with respect to sentence. The accused opposed both alternative remedies, explaining why each was not appropriate. I agree that calling the neighbour seems, at best, a long shot as any detail that Carol might remember about what the complainant told her at the time would likely have little probative value during a subsequent additional cross-examination of the complainant since the complainant could say that he did not say this or that or that Carol does not remember. In addition, such an adjournment could risk delaying the trial and risk bringing this matter into 11 (b) territory (I am informed that the date is March 4, 2021). With regards to the alternative remedy of sentencing, the Crown did not provide any case or expand on its suggestion.

[65] Considering the above, but being mindful of my finding that s. 7 of the Charter was breached, I conclude that an appropriate remedy is, when I ultimately decide whether the Crown has proven the guilt of the accused beyond a reasonable doubt, that (1) I infer that the lost 2002 statement would not have assisted the Crown, and (2) I take into account, during my assessment of the complainant’s credibility and reliability, the fact that the lost 2002 statement was not available to the accused as a further tool to cross-examine the complainant.

Mr. Justice Pierre E. Roger

Date: February 04, 2021

COURT FILE NO.: 18-RA19548

DATE: 20210204

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

G.C.

REASONS FOR decision on lost evidence

Roger J.

Released: February 04, 2021