His Majesty the King v. S.M.

COURT FILE NO.: CR-22-10000552-0000 DATE: August 19, 2024 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

S.M. Defendant

Counsel:

Daniel Santoro and Julia DeVuono, for the Crown

Cole Perry and Mary Cremer, for the Defendant

HEARD: April 12 and August 9, 2024

PUBLICATION BAN There is a publication ban under s.486.4 of the Criminal Code in relation to any information that could identify a victim or a witness.

Reasons for Judgment

DINEEN J.

[1] S.M. was convicted by a jury of a single count of sexual interference committed against his nine-year-old stepdaughter. A previous trial ended in a mistrial before the close of the Crown’s case.

[2] The Crown alleged a single incident of sexual abuse that the complainant disclosed to her mother some weeks after it took place. When the complainant disclosed her allegation, she did so by giving her mother a diary in which she had written “My Dad raped me. I hate myself” on a page titled “My biggest secrets.” The complainant’s mother contacted the police and they attended her residence and photographed pages in the diary with visible writing. They did not seize the diary. By the time of trial, it had been lost.

[3] The defence brought an application for a stay of proceedings on the basis that the loss of the diary violated the defendant’s right under s. 7 of the Canadian Charter of Rights and Freedoms. The resolution of this application was deferred to the conclusion of the trial.

[4] At the outset of argument on the application, defence counsel advised that new disclosure had been made of additional information from the police officer who had photographed the diary, and that the scope of the application would be broadened to incorporate an allegation that this information had been in the possession of the Crown but deliberately withheld before trial.

[5] During the course of argument on this application, I informed counsel that I was concerned that I may have become functus officio and without jurisdiction to grant the sought remedy following the delivery of the jury’s verdict. The following reasons address both bases on which the defence seeks a stay of proceedings as well as my jurisdiction to grant this remedy after the jury’s verdict.

The procedural history and evidence at trial

Pre-trial events

[6] The defence filed its application for a stay of proceedings based on the loss of the physical diary on April 14, 2023, in advance of the first trial date. This application had not been contemplated at the time of the first judicial pre-trial when disclosure on the subject was ongoing. Rhinelander J. presided over the first trial and the argument on the application was deferred. She ultimately declared a mistrial and discharged the jury during the Crown’s case for unrelated reasons.

[7] Following the mistrial, she convened a further judicial pre-trial to discuss how the re-trial should proceed. The pre-trial form reflects that counsel agreed that the lost evidence application should be heard “at conclusion of trial” and this was noted by Rhinelander J. with a time estimate of half a day.

[8] The trial before me began on January 8, 2024. On the first day of trial defence counsel asked if I had access to the materials filed on the lost evidence application and I confirmed that I did. I asked if counsel’s intention was still to litigate the issue at the conclusion of trial. A lengthy discussion ensued.

[9] Defence counsel said that the caselaw suggested that the application should be decided at the conclusion of the evidence so that there was context for an assessment of prejudice.

[10] I asked whether there was a factual dispute about the police position that all of the visible writing in the book had been photographed, and defence counsel took the position that this was not established and noted that the diary had an invisible ink pen.

[11] I asked whether, if counsel anticipated calling evidence on the application itself in addition to the evidence at trial, it could be argued at the conclusion of the trial in the event of a guilty verdict to avoid sending the jury away and keeping them waiting at the conclusion of evidence, given that the application would become moot with an acquittal. Crown counsel agreed. Defence counsel noted that he was seeking, as an alternative remedy, the exclusion of the evidence of the complainant. I asked whether this was meaningfully different as a remedy since it would have the same effect of terminating the prosecution and whether, if this remedy was sought, the argument needed to be made at the outset of trial. Counsel also discussed whether the exclusion of the diary would be a potential remedy and if so whether this needed to be litigated before jury selection.

[12] Following a break to review the materials, I suggested to counsel that exclusion of the diary seemed to me to be an unworkable and unhelpful remedy and that the obvious potential remedies were a jury instruction or a stay. Defence counsel said that he would be pursuing the issue of the loss of the diary before the jury as a potential source of reasonable doubt. I proposed that we address what should be said to the jury about the diary at the conclusion of the evidence and then, if required, set aside time after the verdict for argument of the stay application. Counsel ultimately agreed. Neither I nor the parties adverted to any potential jurisdictional problem with this way of proceeding.

The evidence at trial

[13] At trial, there were two sources of evidence about the diary, the first being the complainant herself. Her videotaped police statement was played as part of her evidence pursuant to s. 715. In her statement, she described writing the statements on the page of her diary including “my dad raped me.” When asked if she had written anything else in the diary, she said no, but then acknowledged writing other unrelated statements that the police had photographed on a different page.

[14] In her trial evidence, she identified the diary and her writing in it on the page saying “my dad raped me.” She did not remember writing anything else in the diary beyond the photographed pages.

[15] The complainant refused to continue testifying before she concluded her examination in chief and her cross-examination from the previous trial was admitted pursuant to s. 715(1). When asked about the diary during her evidence at the previous trial, she agreed that it came with an invisible ink pen but testified that she did not remember whether the invisible ink function worked. When asked if she had tried it, she replied “maybe” and then seemingly agreed that the writing made with the invisible ink would only be visible when a particular light was used on it. She testified that she did not remember if she had written anything else in the diary.

[16] At the second trial, the complainant’s mother was asked about the diary and why it was not available. She agreed that it had come with a light meant to reveal invisible ink. She further said she had returned it to the complainant after the police had finished photographing it and had never seen it again. Defence counsel asked why she had not preserved such important evidence and she replied that her daughter had wanted her diary back.

[17] There was no evidence led before the jury by either party from the police about their decision not to seize the diary. At the conclusion of the evidence, the defence did not request a special instruction on the subject and I saw no basis on the record to give such an instruction.

Events following the jury’s verdict

[18] The jury found S.M. guilty as charged on January 18, 2024. The defence’s still-outstanding stay application was then scheduled to be argued on February 23. On that date, defence counsel gave notice that he intended to broaden the scope of the application in light of new disclosure he had received after the jury’s verdict. The new disclosure involved an email exchange between Crown counsel and Officer Shortt, the police officer who had photographed the diary. This exchange had taken place before trial but only part of the officer’s email to Crown counsel had been disclosed at that time.

[19] Before trial, the Crown[^1] had sent the defence by email the following extract of an email from Officer Shortt, cut-and-pasted into an email to defence counsel:

Just wanted to touch base again regarding this as I'm back at work now. In answer to your questions:

1. The diary was provided to me by the child's mother .

2. I took the photographs in the apartment at the table we were talking around.

3. I took photos of the pages that had writing on them . That turned out to be only the first couple pages.

4. I looked through the diary and did not see anything else written.

[20] After the trial, in the course of correspondence about the lost evidence application, Crown counsel emailed this extract again and reproduced an additional portion of this email that reads as follows:

5. I instructed the mother to bring the diary with her to the CYAC[^2] if/when they attended there to provide statements. I’m not sure why I decided to do this instead of seizing it, looking back on it I probably should have seized it.

[21] Defence counsel submitted that he had previously been unaware that the officer recalled telling the complainant’s mother to bring the diary to the complainant’s police interview and that the officer had expressed the opinion that he should have seized it. He argued that had this disclosure been made in a timely way it would have meaningfully changed the defence’s conduct of the trial. The defence argued that I should infer that this disclosure was deliberately withheld for strategic reasons. In light of this position, after the defence completed its argument on the stay application, different Crown counsel took carriage of the application and I granted the Crown additional time to respond.

[22] When the matter returned for further argument on June 6, I had become concerned that I no longer had jurisdiction to entertain the defence’s applications after the discharge of the jury and I raised this issue with counsel and asked for submissions about the Court of Appeal’s decision in R. v. Henderson (2004), 189 C.C.C. (3d) 447. Counsel asked for time to consider this issue and their positions and the case was adjourned to August 9, 2024.

[23] On that date, I was confronted with an unusual situation: the defence, who had brought the stay application, argued that I lacked jurisdiction to decide it, while the Crown respondent argued that I had jurisdiction. I asked the defence if it wished to withdraw its application in view of its position that the trial court was the wrong venue for it, but defence counsel declined, presumably out of concern that doing so might prejudice S.M.’s ability to seek a remedy on appeal. The defence took the position that I should resolve the question of jurisdiction before any further steps were taken, but I decided to hear the parties’ submissions on jurisdiction and the Crown’s argument on the merits and reserved on both issues.

Issues

My jurisdiction to consider an application for a stay of proceedings following a conviction by a jury

[24] In Henderson, Feldman J.A. for the court cautioned that that trial judges have very limited jurisdiction to interfere with a jury verdict. She explained:

A trial judge’s jurisdiction to alter a jury’s verdict, order a stay or declare a mistrial after a jury verdict is extremely limited. The normal rule is that following the delivery and recording of a verdict by the jury, the trial judge is functus in respect of that verdict, which cannot be altered, except on appeal. The rule is somewhat different in a judge-alone trial. In that case, where the trial judge has entered a verdict of acquittal, the verdict is final and cannot be subsequently altered by the trial judge. However, where a trial judge convicts an accused but has not yet sentenced him or her, the trial judge is not functus in respect of that charge, and can, in exceptional circumstances, vacate the adjudication of guilt before sentencing: R. v. Lessard (1976), 30 C.C.C. (2d) 70 at 73-75. (Ont. C.A.); R. v. Benns, [2004] O.J. No. 182 (C.A.).

The sacrosanct nature of the jury verdict is subject to some narrow exceptions. One is where the jury does not render the verdict it intended. In that case (a) where the mistake becomes known before the jury is discharged, the judge retains jurisdiction to record the verdict the jury did intend; (b) where the mistake becomes known after the jury is discharged, the judge may recall the jury to determine whether there is a reasonable apprehension of bias because of the dispersal of the jury…

The second exception is where the accused wants to raise the defence of entrapment. Because entrapment is a defence that does not vitiate the culpability of the accused but involves unlawful conduct in the procurement of the offence by the state, the defence is determined by the trial judge only after the jury has found the accused guilty. That verdict is not impugned by the stay application.

The respondent argues that the categories of cases where an abuse of process argument can be raised on a stay application following a jury verdict of guilt are not limited to entrapment, and that the procedure in Mack can apply more broadly. He cites cases from lower courts where that has been done: R. v. Lalich, [1989] B.C.J. No. 2386 (Co. Ct.); R. v. Robinson (1999), 1999 ABCA 367, 142 C.C.C. (3d) 303 (the Alberta Court of Appeal overruled the trial court on the merits without commenting on the procedure employed by the trial judge); R. v. Rogers, [1995] O.J. No. 3114 (Gen. Div.); R. v. White, [1997] A.J. No. 255 (Q.B.); R. v. G.G.M., 2003 NSSC 258

We do not need to decide in this case whether there are any circumstances when the stay procedure in Mack might be extended. The issue here is whether, as a remedy for a Charter breach or for an abuse of process, the trial judge had jurisdiction to declare a mistrial following the recording of a jury’s verdict of guilt for pre-trial non-disclosure by the Crown which was known to the defence. In my view, the decisions of the Supreme Court of Canada in Burke and of this court in Gostick make it clear that he did not.

Furthermore, when the alleged abuse of process or breach of s. 7 of the Charter is an alleged failure by the Crown to carry out its disclosure obligations, the proper procedure for the court to address that concern is found in the Supreme Court’s decision in R. v. La (1997), 116 C.C.C. (3d) 97 and in this court’s decision in R. v. Bero. In Bero, Doherty J.A. set out the procedure to be followed on a motion for a stay based on the Crown’s failure to produce lost or destroyed potentially relevant evidence. The procedure is for the accused to move, normally at the opening of the trial, for a stay based on the Crown’s failure. Unless the need for a stay is clear, the trial judge is not to rule on the motion at the opening of trial, but rather must reserve the decision until all of the evidence has been heard and when the court is in a position to assess the degree of prejudice caused to the accused. This is in accordance with the Supreme Court’s earlier decision in La at paras. 27 and 28.

Therefore, the ruling on the stay motion is to be made before the case goes to the jury. In that way, any accommodations in the trial process and in the admission of evidence, and appropriate informational instructions to the jury about the Crown’s responsibility to preserve and produce all relevant evidence in its possession may be implemented during the trial, thereby providing a remedy short of a stay. It avoids any potential need for a mistrial and leaves as the sole issue whether a stay is the only remedy that will cure the breach, subject, of course, to an appeal. This procedure is consistent with the jurisdictional restrictions on a trial judge once the jury’s verdict has been registered.

[25] I was referred to many other cases where this issue has arisen. In a minority of those cases the Court proceeded to consider an application for a mistrial or stay of proceedings following a jury verdict. These include the cases noted by Feldman J.A. as well as R. v. Nehass [2017] Y.J. No. 319 (S.C.), R. v. Robinson (unreported Ontario Superior Court of Justice decision dated March 11, 2024) and R. v. Toole 2023 ONSC 7243. However, most cases have found an absence of jurisdiction and deferred the issue to the Court of Appeal.

[26] The defence submits that the application in this case falls squarely within the parameters of Henderson’s holding that “…where there is an alleged abuse of process that occurs during the trial, the motion for a remedy must be brought before the jury’s verdict is registered. Otherwise, the matter can only be addressed on an appeal.”

[27] Crown counsel observes that, while the cases frame this issue as one of “jurisdiction,” there is no question that I have the legal power to grant the remedy of a stay of proceedings for an abuse of process after a jury verdict has been returned. Rather, the question is in what circumstances it is appropriate to exercise this power. This permits greater flexibility than situations where there is a more traditional jurisdictional impediment.

[28] Accepting that the jurisprudence establishes that there are only very limited circumstances where a stay application should be considered after a jury verdict, Crown counsel points to two features of this case that he submits support the appropriateness of doing so here.

[29] First, this is not a case like Henderson where the defence failed to bring its application before the jury’s verdict despite being aware of the alleged abuse of process, nor is it one where the relevant facts did not come to light until later. Rather, the defence brought its application in a timely way and I asserted jurisdiction over it before the jury’s verdict and deferred it until after the trial for legitimate trial management reasons.

[30] The Crown submits that Henderson and the other leading decisions do not hold that proceeding in this fashion is impermissible, and notes other cases where it has been done such as Robinson and Toole.

[31] Second, the Crown relies on the distinction drawn by Forestell J. in R. v. Datta 2021 ONSC 2763, between stay applications based on allegations of trial unfairness on the one hand and applications alleging conduct that falls in the “residual” category of abuse of process on the other:

In my view, there is a distinction which must be drawn between the procedure to be followed in cases impacting on trial fairness — or ‘main category’ cases and cases that fall only in the ‘residual’ category. Post-verdict applications may be entertained in cases that fall only in the residual category. Entrapment is one type of case that falls in the residual category. An application for a stay for entrapment must be brought post-verdict. Entrapment is not the only type of case within the residual category and it is not the only type of state conduct that may be properly dealt with post-verdict.

In R. v. Bellusci, the Supreme Court of Canada reinstated the stay of proceedings entered by the trial judge after the accused was found guilty but before the conviction was entered. The accused had been found guilty in a judge alone trial of intimidating a justice participant. The trial judge entered a stay of proceedings under s. 24(1) after finding that the accused had been grievously assaulted while chained, shackled, handcuffed and defenceless.

I recognize that Bellusci was a judge alone trial. However, the principles remain the same. The stay application was not based on unfairness to the trial process, but solely on the residual category. I am of the view that where the abuse alleged falls within the main category in that it potentially impacts on the fairness of the trial process, it should be brought before the jury verdict. However, as with entrapment, if the alleged abuse does not engage trial fairness concerns the application may be brought post-verdict.

[32] In this case, the defence stakes its claim for a stay of proceedings on the cumulative effect of the loss of the diary and of the trial Crown’s non-disclosure of relevant communications with Officer Shortt. The defence’s submissions about the latter went beyond alleging trial unfairness and made claims that the Crown’s conduct undermined the integrity of the process, engaging the residual category. The Crown submits that the application can accordingly be considered at this stage under the approach set out by Forestell J.

[33] I find the Crown’s submissions persuasive and believe that as a matter of policy it would be preferable for trial judges to have some flexibility to defer a stay application that was brought in a timely way. In any case, I have concluded that I need not finally decide the jurisdictional question. Assuming without deciding that the application is properly decided at this stage, I am of the view that this is not among the “clearest of cases” where a stay of proceedings is appropriate.

Is a stay of proceedings warranted?

[34] While I appreciate that the defence relied on the cumulative effect of the lost evidence and undisclosed email, I will consider them individually.

The lost evidence allegation

[35] The Crown’s duty to disclose all relevant information in its possession includes an obligation to preserve evidence that it knows to be relevant. Sopinka J. explained the relevant principles in the leading case of La:

The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.

In order to determine whether the explanation of the Crown is satisfactory, 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.

[36] I accept that the police’s temporary possession of the diary for the purpose of photographing it means that its loss could engage s. 7 given that the police likely could have seized it pursuant to s. 489(2)(c) of the Criminal Code. However, I find that Officer Shortt’s decision not to seize the diary was reasonable and that it was not lost due to unacceptable negligence on the part of the state.

[37] Looked at from the officer’s perspective at the relevant time, his actions in photographing the visible writing in the diary – and particularly the page containing the allegation of sexual assault – would have appeared to have preserved everything that might be of evidentiary value. It seems unsurprising that he may not have contemplated that there might later be a need to examine the physical diary itself to look for the use of invisible ink or for any other reason, and that he may not have believed that there was a significant risk the diary would go missing if left with the complainant. Any later disclosure of the diary would likely have required a s. 278 application whether or not it came into possession of the authorities in any case.

[38] I appreciate that the officer himself said in his email to Crown counsel that, looking back, he believes that he probably should have seized the diary. This was however a hindsight judgment made with the knowledge that the diary had been lost and that the defence was pursuing this as an issue at trial. It is not surprising that he would express that opinion given what had happened, but that hindsight perspective is not the one that I must adopt to decide whether or not the police’s conduct breached s. 7. I find that the police conduct was reasonable given the apparent relevance of the diary at the time they interacted with it.

[39] In any case, even assessing the situation on the basis of the entire trial record, I see no reasonable possibility that the diary contained anything of any evidentiary significance whatsoever beyond what can be seen in the police photographs. The idea that something else was written, whether in invisible ink or otherwise, that might have assisted the defence in some way strikes me as entirely unrealistic speculation. The use of invisible ink to write something sensitive seems particularly unlikely given that the complainant used normal ink to write down what she identified as her “biggest secrets.”

[40] I find that it was not unacceptable negligence for the police to leave the diary with the complainant and her mother. I also conclude that the physical diary was not so important that its loss undermined the fairness of the trial.

The failure to disclose Officer Shortt’s complete email

[41] In my view, it is beyond doubt that the late-disclosed portion of Officer Shortt’s email contained relevant information that fell within the scope of the Crown’s disclosure obligation and this should have been readily apparent to Crown counsel.

[42] The complainant’s mother was an important Crown witness at trial, arguably as important to its proof of guilt as the complainant herself. In his cross-examination, Mr. Perry challenged her on her failure to preserve the diary. It should have been obvious to Crown counsel that Officer Shortt’s recollection that he asked her to bring the diary to her daughter’s police interview could affect the defence’s conduct of the trial.

[43] It was also clear at the time of the email that the defence was making an issue of the loss of the diary and that Officer Shortt could be a witness about this, either before the jury or on an application. His statement that he did not recall why he did not seize it and felt that he probably should have was also something that needed to be disclosed.

[44] In view of what was said in R. v. Leduc (2003), 176 C.C.C. (3d) 321 (Ont. C.A.), I repeatedly adjourned this application to permit the Crown to tender some evidence explaining the failure to disclose this portion of the email until after trial. No such explanation has ever been forthcoming, nor has any reason been offered for its absence.

[45] I am inclined to draw an adverse inference against the Crown for its failure to explain the non-disclosure. At the very least, I infer that there is no evidence that could have been offered that this was a simple innocent mistake such as an inadvertent failure to cut and paste the entire email from Officer Shortt into an email to defence counsel.

[46] I accept that there is a legitimate evidentiary foundation for the defence’s argument that the non-disclosure was a deliberate and strategic one aimed at withholding this evidence from the defence for fear that it would add fuel to the lost evidence argument. However, I have concluded that I cannot draw that inference even in the absence of an explanation from the Crown.

[47] The undisclosed portion of the email does not strike me as something that a Crown would likely be motivated to hide for strategic reasons, even assuming a Crown who is prepared to act unethically. There is no doubt that the defence doggedly pursued the issue of the lost diary and that the contents of the email likely would have been used in the cross-examination of the complainant’s mother and on the lost evidence application. Nonetheless, I have difficulty imagining the Crown seeing this information as something likely to significantly harm its position at trial. Viewed objectively, the possibility of the defence obtaining a meaningful remedy or raising a reasonable doubt based on the lost diary seems to me to have always been a longshot. The undisclosed portion of the email does not seem to me to give the argument much more traction.

[48] I am reinforced in this view by the way in which the evidence ultimately came to light: it was directly disclosed by the same Crown counsel who is alleged to have deliberately hid it before trial. While it is not impossible that she made a deliberate strategic decision to unethically hide this evidence for fear of its effect at trial only to clumsily reveal this by later disclosing it in advance of the post-trial stay application, it strikes me as highly unlikely that this is what happened.

[49] I find that the only reasonable inference I can draw on this record is that the failure to make timely disclosure was a serious error in judgment. It breached S.M.’s right to make full answer and defence pursuant to s. 7 of the Charter. However, I cannot find that it was a deliberate attempt to undermine M.’s rights.

[50] In considering the effect of the breach, I note what Laskin J.A. said in Leduc:

But the Crown's breach of its obligation to disclose does not automatically entitle an accused to a stay of proceedings under s. 24(1) of the Charter. A stay is a drastic remedy, a remedy of last resort, to be granted only in the "clearest of cases". It should be granted only in the rare cases where compelling an accused to stand trial would violate those fundamental principles of justice that underly the community's sense of fair play and decency. Or, in the words of L'Heureux-Dubé J. in R. v. O'Connor, [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, at p. 468 S.C.R.: a stay should be granted only "where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued."

[51] Having considered the seriousness of the Crown’s error in judgment and the relative significance of the undisclosed evidence, taking into account there was an earlier mistrial whose primary cause was inadmissible evidence led by the Crown, as well as my finding that the non-disclosure was not a deliberate attempt to undermine the fairness of the trial, I find that this is not a case where the drastic remedy of a stay of proceedings is appropriate.

[52] The issue of whether or not another remedy might be appropriate at this stage is not before me. The defence did not seek a mistrial or any other alternative remedy. The parties both submit, and I agree, that the authorities establish that at this stage it is for the Court of Appeal to decide whether the non-disclosure rendered the trial unfair such that a new trial is necessary.

Disposition

[53] The application for a stay of proceedings is dismissed.

Dineen J.

Released: August 19, 2024

COURT FILE NO.: CR-22-10000552-0000 DATE: August 19, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING – and – S.M.

REASONS FOR JUDGMENT

Dineen J.

Released: August 19, 2024

[^1]: Not Mr. Santoro or Ms. DeVuono [^2]: Child and Youth Advocacy Centre