Court File and Parties

COURT FILE NO.: CR-23-14-00 DATE: 2024-05-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King L. Taylor for the Crown

- and -

Brayden Lawson A. Seib, for the Accused Accused

HEARD: By Zoom, April 29, 2024, at Kenora, Ontario

Mr. Justice J.S. Fregeau

Endorsement on Application

INTRODUCTION

1Brayden Lawson (the “applicant”) is charged with eight offences, all alleged to have occurred on or about October 24, 2021, in Dryden, Ontario and involving two complainants, S.C. and K.C. His trial on these charges, as set out below, is scheduled to begin June 3, 2024:

1. Did administer to S.C. a destructive or noxious thing, to wit MDMA with intent to aggrieve or annoy S.C. contrary to section 245(1)(b) of the Criminal Code;
2. Did Administer to K.C. a destructive or noxious thing, to wit MDMA with intent to aggrieve of annoy K.C. contrary to section 245(1)(b) of the Criminal Code;
3. Did for a sexual purpose counsel S.C. a person under the age of 16 years to touch directly with a part of her body, the body of Brayden Lawson contrary to section 152 of the Criminal Code;
4. Did for a sexual purpose counsel K.C. a person under the age of 16 years to touch directly with a part of her body, the body of Brayden Lawson contrary to section 152 of the Criminal Code;
5. Did for a sexual purpose touch S.C., a person under the age of 16 years directly with a part of his body, contrary to section 151 of the Criminal Code;
6. Did for a sexual purpose touch K.C., a person under the age of 16 years directly with a part of his body, contrary to section 151 of the Criminal Code;
7. Did commit a sexual assault on S.C., contrary to section 271 of the Criminal Code; and
8. Did commit a sexual assault on K.C. contrary to section 271 of the Criminal Code.

2The applicant has brought an application pursuant to Section 7 of the Canadian Charter of Rights and Freedoms seeking a declaration that due to the loss of relevant evidence, his right to make full answer and defence has been breached, in violation of s. 7 of the Charter. The applicant further applies for a judicial stay of proceedings pursuant to s. 24(1) of the Charter, as a remedy for the s. 7 breach.

3The Crown concedes a s. 7 breach in regard to counts 1 and 2 set out above and consents to a judicial stay being entered on those counts, pursuant to s. 24(1) of the Charter. The Crown opposes the application as it relates to all additional counts in the indictment.

BACKGROUND

4On Sunday October 24, 2021, at approximately 9:50 pm, M.C. contacted the Dryden Police Service and reported that she had just picked up her 14-year-old daughter, S.C., from the Comfort Inn Motel in Dryden, Ontario. M.C. told police that her daughter, S.C., and another young girl, K.C., who was with S.C. were both intoxicated and that they had been given “Molly”, a street name for MDMA or ecstasy. Medical examination confirmed that S.C. tested positive for both alcohol and MDMA. K.C. tested positive for only alcohol.

5On October 24, 2021, police attended the hotel room of the applicant at the Comfort Inn in Dryden. Police spoke with a housekeeper who was just finishing cleaning the applicant’s room. The housekeeper provided the police with two water bottles that had been removed from the hotel room fridge, each of which had a small amount of liquid left in the bottom.

6The water bottles seized from the applicant’s room at the Comfort Inn, and which allegedly contain MDMA, were forwarded to Health Canada for testing. Health Canada has nothing in their computer system relating to these water bottles. This evidence has been lost.

7The applicant’s preliminary inquiry on all charges took place between October 24 and December 2, 2022. The applicant was committed for trial in the Superior Court on the 8 charges set out above.

THE POSITION OF THE APPLICANT

8The applicant submits that the water bottles from the fridge of his room at the Comfort Inn, which the Crown alleged contained MDMA, are relevant evidence in relation to the charges he is facing and would, in the normal course, be required to be disclosed in accordance with sections 7 and 11(d) of the Charter.

9The applicant contends that these water bottles are likely the best evidence as to whether he administered the MDMA to the complainants and that there is clearly a duty on the police and Crown to preserve this evidence. The applicant submits that the failure to preserve and disclose the water bottles has compromised his right to the disclosure of relevant evidence and impaired his ability to make full answer and defence.

10The applicant suggests that the credibility of S.C. and K.C. and the reliability of their evidence will be the central issues at trial. Specifically, the applicant contends that the complainants’ assertion that he administered MDMA to them via the water bottles is highly relevant to their credibility on all charges. The applicant submits that loss of the water bottles precludes him from cross-examining the complainants on this portion of their evidence.

11The applicant submits that there is no existing evidence that could provide an adequate substitute for the lost water bottles. The applicant contends that his ability to make full answer and defence has been irreparably damaged and that a stay of proceedings is the only appropriate remedy.

THE CROWN

12The Crown acknowledges that relevant evidence has been lost in regard to the two charges alleging that the applicant administered MDMA to S.C. and K.C. while they were in his room at the Comfort Inn on October 24, 2021.

13The Crown concedes that this results in the applicant’s s. 7 Charter rights having been breached in regard to the related counts (counts 1 and 2) in the indictment. The Crown therefore does not oppose the applicant’s request that a judicial stay be entered in relation to counts 1 and 2.

14However, the Crown submits that the lost evidence is not materially relevant to the remaining charges on the indictment. The Crown contends that the loss of this evidence therefore does not amount to a breach of the applicant’s s. 7 rights and that s. 24(1) is therefore not engaged.

15In the event this court finds that the applicant’s s. 7 rights have been breached in relation to all charges on the indictment as a result of the lost water bottles, the Crown submits that a stay of proceedings pursuant to s. 24(1) is not an appropriate remedy. The Crown submits that the applicant’s ability to cross-examine both complainants, and to challenge their credibility and the reliability of their evidence as it relates to all other charges, has not been materially impacted by the loss of the water bottles.

16The Crown submits that the applicant is entitled to a trial that is fundamentally fair but that he is not entitled to a perfectly fair trial. The Crown submits that the other means available to challenge the credibility of the complainants and the reliability of their evidence provides the accused with the ability to make full answer and defence and provide him with a fundamentally fair trial regardless of the lost evidence.

17The Crown submits that a fair consideration of the lost evidence in the context of the rest of the evidence leads to the conclusion that this is not one of those “clearest of cases” in which a stay of proceedings is necessary in the interests of justice.

DISCUSSION

18The lost water bottles are clearly relevant to counts 1 and 2 on the indictment. The Crown has provided no evidence as to how that evidence was lost. The only conclusion to be drawn is that this evidence was lost due to unacceptable negligence on the part of the state.

19The Crown has conceded the s. 7 breach in regard to counts 1 and 2 and has conceded that a judicial stay of proceedings is the appropriate and necessary remedy for the s. 7 breach in regard to counts 1 and 2.

20The applicant’s ability to make full order and defence has been impaired in relation to counts 1 and 2. It follows that his s. 7 Charter rights have been breached in relation to these counts. Pursuant to s. 24(1) of the Charter, I order that counts 1 and 2 are stayed.

21I accept the submission of the applicant that the lost evidence is not plainly irrelevant to the remaining charges. While the lost evidence is not directly relevant to the remaining counts in the indictment, I accept the submission of the applicant that if the evidence had not been lost and if it had tested negative for the presence of MDMA, it could have been one means available at trial to challenge the credibility and reliability of the complainants, who as I understand it, both allege that the applicant administered MDMA to them, via the water bottles, without their knowledge.

22The applicant has therefore established that his s. 7 Charter rights have been breached as a result of the lost evidence. However, I reject the applicant’s submission that his ability to make full answer and defence on the remaining counts has been impaired to the extent that he cannot have a fundamentally fair trial such that a judicial stay of proceedings should issue as a remedy pursuant to s. 24(1) of the Charter.

23In my view, the s. 7 breach having been established, the question becomes whether the lost evidence, in the context of all the circumstances of the case and when considered in conjunction with all other evidence and disclosure, prejudices the applicant to the extent that he would be denied a fundamentally fair trial.

24It is imperative, when considering trial fairness in the context of lost evidence, that the lost evidence not be considered in a vacuum. The lost evidence must be considered in the context of the rest of the evidence and the position taken by the defence. See R. v. Bradford, [2001] O.J. No. 107, at para. 38.

25As noted above, the lost evidence may have been of use to defence counsel in the cross-examination of the complainants generally. If the water bottles had not been lost, and if they tested negative for MDMA, the complainants could have been cross-examined and impeached on the assertion that the applicant administered MDMA to them. Looked at in isolation, the lost evidence impacts defence counsel’s ability to challenge the credibility of the complainants. However, the lost evidence must be considered in the context of all the evidence to determine the degree of prejudice to the applicant’s ability to make full answer and defence.

26M.C., the mother of the complainant S.C., picked up S.C. and K.C. at the Comfort Inn at approximately 9:50 pm October 24, 2021. M.C. called the police because she believed that her daughter and K.C. had been given MDMA. M.C. obviously was told this by S.C. or K.C. or both. I assume that M.C. gave a statement to the police. M.C. testified at the preliminary inquiry and is available to testify at trial at which time she can be cross-examined on what S.C. and K.C. told her.

27I further assume that both S.C. and K.C. gave separate statements to the police, written or audio/video or possibly both. S.C. and K.C. also testified at the preliminary inquiry. At trial, S.C. and K.C. will testify and can be cross-examined on their statements to M.C., on their statements to the police and on the evidence they gave at the preliminary inquiry. Should their statements differ from one another, or should their respective trial evidence differ from one another, they can be cross-examined on those differences.

28Viewed in the context of all the evidence available to the applicant for the purposes of impeaching S.C. and K.C. at trial, I cannot conclude that the applicant’s ability to make full answer and defence has been damaged, as a result of the lost evidence, to the extent that a stay of proceedings on all remaining counts in the indictment is appropriate.

29It is well-established that the Charter does not guarantee the fairest of all possible trials. The Charter guarantees an accused person a trial which is fundamentally fair. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of our system of justice, and the lawful interests of others involved in the process, such as complainants. What the law demands is not perfect justice, but fundamentally fair justice. See R. v. O’Connor, [1995] 4 S.C.R. 411.

30The application is granted in regard to counts 1 and 2 of the indictment. Those counts are stayed. The application is otherwise dismissed.