CITATION: R. v. Galloway, 2022 ONSC 878

COURT FILE NO.: CR-20-273

DATE: 20220207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBERT GALLOWAY

Defendant

Heather Donkers, for the Crown

Stephen Whitzman, for the Defendant

HEARD: November 15, 2021

TRANQUILLI J.

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS ON LOST EVIDENCE AND 3^rd PARTY SUSPECT APPLICATIONS

Introduction

1Robert Galloway is charged with one count of sexual interference, one count of invitation to sexual touching and one count of sexual assault contrary to sections 151, 152 and 271 of the Criminal Code.

2The charges arise from alleged incidents between Mr. Galloway and his former friend’s young daughter, S.P. between January 1, 2014, and June 1, 2019. S.P. would have been between six and 11 years of age at the time of the alleged unlawful acts. Police first interviewed S.P. about the allegations on June 7, 2019. Police did not charge the accused. The complainant then made a second statement four months later in October 2019, after which police arrested Mr. Galloway.

3Mr. Galloway claims the police failed to preserve evidence that would have tended to disprove the complainant’s allegations. The lost evidence is best described as sex toys, which the child said the accused used on her and kept in his recreational vehicle, which was the scene of the assaults. Police did not search the RV at the time of the child’s initial complaint in June 2019. The accused submits the failure to search his RV so as to reveal the absence of sex toys deprives him of the right to make full answer and defence and is a breach of his s. 7 Charter rights. He applies for a stay of proceedings or other remedy to the breach.

4Mr. Galloway also applies to lead evidence of an alleged third-party suspect. He submits there is relevant and probative evidence that demonstrates S.P.’s father committed the offences in issue.

Issues

5The following questions arise on these applications:

1. Did the police take reasonable steps to preserve the evidence in its investigation?

2. Is there a sufficient connection between the third party and the crime as to make the evidence relevant or probative?

6The parties acknowledged that a determination of the appropriate remedy for a s. 7 Charter breach due to lost evidence is best assessed after a trial, where the impact of the lost evidence can be measured on the whole of the record. However, the parties agree that it would be helpful for the court to determine whether there is a Charter breach on this pre-trial application as it will assist in the conduct of the judge-alone trial set to commence on March 14, 2022.

Overview of Evidence

7The following chronology highlights the key evidence in respect of both applications. The evidence comes from witness statements gathered in the course of the investigation and the testimony of officer Trevor Pool at the hearing of the applications.

8S.P. made a disclosure to a lunch supervisor at her school in early 2019. The supervisor reported the child’s declaration to the school principal many weeks later. CAS and police then started an investigation in June 2019. Police interviewed the supervisor. The supervisor stated S.P. told her that S.P.’s father “touches her inappropriately.” The supervisor did not ask the child any further questions about her allegation.

9A CAS worker attended the child’s home on June 5, 2019, where she lived with her father. The worker was told S.P. was not feeling well and did not want to speak with her. The worker booked a meeting for June 7, 2019. The complainant’s father, J.P., spoke with the complainant about the CAS visit. He brought the child to the police station the next day as a result of what she told him. They each gave statements to the police. In his police statement of June 6, 2019, J.P. reported that his daughter told him the accused had been touching her vagina and anus over the past four years either with his fingers or sex toys. She told him it happened in the accused’s RV which was parked in the driveway of the accused’s home. He stated that S.P. told him the accused kept the sex toys inside a plastic grocery bag that he placed the bag in a storage bin in the RV. J.P. advised that the accused had given him a key to the trailer. He gave the key to a police officer for the investigation. He described a recent incident when he arrived at the accused’s home and found the accused and S.P. inside the locked RV. He did not have the key with him and banged on the door. It took the accused a while to open the door. There were sheets covering the windows and the child was in the bathroom.

10Officer Pool of the London Police Service interviewed S.P. on June 7, 2019. S.P. denied her father had assaulted her. She said she made it up because she was not in a good mood. She claimed that her babysitter, the accused, had penetrated her vagina with his finger and used sex toys to also penetrate her vagina and anus. She said this happened in the accused’s RV over the past four years.

11Officer Pool called the accused later that same day. He asked the accused if they could speak about an investigation. The officer did not disclose any details of the investigation. The accused agreed to a meeting on June 10, 2019; however, his lawyer called police that day to advise Mr. Galloway would not speak with police but that he would present himself if he were going to be arrested.

12Officer Pool testified that he discussed the file with colleagues. The officer concluded something had happened; however, in his view, the child did not provide the necessary disclosure for him to form reasonable grounds that the offences had been committed. In his experience, the trial system is difficult for a child witness in sexual offence cases. He wanted to be clear about her evidence before putting her through such a process. He also concluded it was unlikely that a search warrant for the RV would be granted given his questions about the child’s statement. He left the investigation open in the event the child might eventually be able to give more disclosure that would allow for charges to be laid.

13Four months later, in late September 2019, S.P.’s father told police his daughter had more information she wanted to share with police. On October 7, 2019, S.P. gave a further statement to a different police officer, with more details of her allegations about the assaults by the accused. Officer Pool reviewed the video statement and consulted with the interviewing officer. The accused was arrested for the offences later that same day.

14Officer Pool conceded the child’s evidence had not significantly changed as between the two statements. However, in his view she was “fairly consistent” in her description of the offences and was able to supply a bit more detail. The RV was never searched, and sex toys are not in evidence. The officer acknowledged a search of the RV in June 2019 may have yielded evidence relevant to the allegations. However, officer Pool contended that the sex toys could easily have been removed from the RV before a search at that time. They did not consider searching the RV at the time of the applicant’s arrest four months later since so much time had passed.

Analysis

1. Did the police take reasonable steps to preserve the evidence in its investigation?

15Mr. Galloway submits that a police search of his RV at the time of the initial complaint in June 2019 would have yielded powerful evidence of his innocence. The lost evidence arises from the police failure to conduct a search and “preserve” the fact that there were, in fact, no sex toys in the RV. The police had reasonable grounds to search the RV in June 2019 and failed to do so. This is demonstrated by the fact that police opted to lay charges four months later in circumstances where the complainant’s allegations had not materially changed; there was no “aha” moment. While the applicant could testify there were no sex toys in the RV, this would not be an adequate substitute for the fact that none were found by the police in a search before he had an opportunity to dispose of them. The loss of this “evidence” should result in a stay of proceedings pursuant to s. 7 and s. 24 of the Charter.

16The Crown submits there has been no s. 7 Charter breach depriving the applicant of his right to make full answer and defence and that a stay is not warranted. Had the police sought a search warrant for the RV in June 2019, and had the application been granted, it is possible that police either would or would not have found evidence supporting the Crown’s case. If no sex toys had been found on such a search, the court may nevertheless have been in a position to draw any number of inferences as to why the items were not there.

17The Crown and police have a duty to preserve the fruits of an investigation. However, the Crown can only produce what is in its possession or control: R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680 at paras. 18-20. The main consideration is whether the Crown or police 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: La, supra at para 21.

18The court has a threshold difficulty with this application: the existence or non-existence of this evidence had the RV been searched is entirely speculative and hypothetical. I am of the view that this application is a misuse of the “lost evidence” doctrine. We do not know if the evidence was in the RV had it been searched, and it was never in the possession of the Crown or police. Further, the relevance of the assumed absence of sex toys had the RV been searched in June 2019 is open to debate. The accused submits the search could have been conducted before he would have had a chance to remove the items and that this would have supported his innocence. The record might equally support other inferences, such as that the items were removed before the search.

19Even accepting the argument that the assumed absence of the sex toys qualifies as “lost evidence”, the court finds that this situation did not arise because of unacceptable negligence on the part of the police. I accept Officer Pool’s assessment that he did not have reasonable probable grounds to lay charges in June 2019, and that he thought it therefore unlikely that he would be successful in obtaining a search warrant. The officer is allowed some discretion in his reasons for not proceeding with charges at the time. Excluding the benefit of hindsight, his assessment appears reasonable in the circumstances. He explained the complainant’s account lacked particulars at the time. I am in no better position to question his assessment on this pre-trial record. The complainant’s credibility and reliability remain to be determined at trial.

20I also acknowledge the officer’s experience in investigating alleged child sex abuse, the toll it can take upon child witnesses, and how this informed his decision to not proceed with charges in June 2019. His explanation that he did not want to lay charges unless he had reasonable confidence in the child’s account is reasonable in the circumstances. It is all too easy to conclude what could have been done with the benefit of hindsight. I therefore conclude that any alleged failure to “preserve” the assumed “non-existence” of evidence is not a breach of the applicant’s s. 7 Charter rights.

21The fact the RV was not searched and that the items allegedly used on the complainant were never located remain to be considered on the whole of the evidence at trial and whether the Crown has proven the case beyond a reasonable doubt.

2. Is there a sufficient connection between the third party and the crime as to make the evidence relevant or probative?

22The applicant submits that if the complainant is a victim of sexual assault, it was not committed by him but the complainant’s father. The school supervisor states that the complainant made a spontaneous declaration that the complainant’s father “inappropriately touches” her. The complainant later denied the allegation in her statement to police. At the preliminary hearing, she reportedly denied having made the statement to the supervisor at all. The applicant can put her reported disclosure to the complainant as a prior inconsistent statement. However, the applicant seeks to have the statement admitted for its truth. He contends it would be admissible as a principled exception to the hearsay rule as evidence that her father was, in fact, the perpetrator of the assaults between 2014 and 2019. The applicant submits there is ample evidence that sufficiently connects the father to the commission of the crimes such that the applicant should be given leave to adduce such evidence. The father is clearly identified and had ample opportunity to have assaulted the complainant. He even had a key to the RV.

23The Crown submits there is no air of reality to the proposed third-party suspect evidence and that such evidence should not be admitted as it would distort the fact-finding process.

24Evidence of the potential involvement of a third party in the commission of an offence is admissible. However, such evidence must be relevant and have sufficient probative value to justify its admission. Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime to give the proffered evidence some probative value: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 at para 46.

25I am not persuaded that applicant has demonstrated a sufficient connection between the alleged third-party suspect and the crimes in issue. The child’s alleged statement to the lunch supervisor is inadmissible hearsay and lacks probative value. It is vague, with a lack of particulars as to the manner of inappropriate touching and where and when the touching took place. The alleged declaration also has no connection with the specific crimes for which the accused is charged. Even if it were accepted that the child had been assaulted by her father, this would not exclude the possibility she was also assaulted by the applicant in the specific manners alleged – with sex toys in his RV.

26The application for admission of this third-party suspect evidence is therefore also dismissed.

K. A. Tranquilli

Justice K. Tranquilli

Released: February 7, 2022

CITATION: R. v. Galloway, 2022 ONSC 878

COURT FILE NO.: CR-20-273

DATE: 20220207