R. v. Birtch, 2025 ONSC 1391

Court File No.: CR-23-63
Date: 2025-03-03
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Trevor Birtch

Appearances:
A. Orlov, for the Crown
J. Battin, for the Defendant

Heard: November 12 & December 16, 2024, January 28, 2025

Judgment on the Scope of the Mistrial Declaration

M. B. Carnegie

Introduction

[1] After the completion of a judge alone trial and findings of guilt on August 8, 2024, I found that the Applicant’s s. 7 Charter right to full and complete disclosure was breached. [See 2024 ONSC 7125.] As a result, pursuant to s. 24(1), on December 16, 2024, I declared that a mistrial was the appropriate remedy.

[2] However, the Applicant had sought a mistrial only respecting the two counts for which he was convicted. The third count, the subject of an acquittal at trial, remained at issue and I invited the parties to make further submissions respecting the appropriate scope of this Charter breach remedy.

[3] The Crown contends that a mistrial should apply across the entire Indictment. That, regardless of the acquittal on the third count, the introduction of new evidence from the identified witness whose evidence was not adequately disclosed prior to the first trial, could remedy the complainant’s evidentiary deficiencies found by this court during the first trial. In essence, with this new evidence in play, the fairest approach would be to permit a re-trial on all counts as the Applicant could not be legally prejudiced and a more fulsome search for the truth would result.

[4] For the reasons that follow, the Applicant’s specifically requested relief will be granted. A mistrial is declared with respect to counts 1 and 2 of Indictment CR-23-63. Count 3, wherein an acquittal was entered, will not be disturbed.

Factual Background

[5] On February 2, 2022, the Applicant was arrested and charged with two counts of sexual assault and one count of common assault with respect to T.P.’s complaints. The trial of these allegations occurred before me on May 27th – May 30th, 2024. As noted, my trial judgment was rendered on August 8, 2024, wherein the Applicant was found guilty of two of three counts, namely a sexual assault and common assault. He was acquitted of the second allegation of sexual assault.

[6] On April 26, 2022, Mr. Birtch was arrested respecting the complaints of a different complainant, M.P. He was charged with three counts of sexual assault. On January 15, 2025, that judge alone trial before another jurist resulted in findings of guilt on two counts of sexual assault. The Applicant is pending sentencing on those matters.

[7] These two separate prosecutions were the product of two separate police investigations, involving two different investigative teams. The Applicant was prosecuted on two separate Indictments with two separate Crown counsel involved. Further, disclosure respecting each of these sets of allegations was separated. The Crown established two different files on their electronic disclosure ‘hub’ for which the Applicant’s counsel was granted access. He had the same defence counsel for both sets of charges.

[8] As part of the M.P. investigation, witness T.W.S. was audio interviewed on June 25, 2023. T.W.S. had been a long-time friend of the Applicant. As this statement revealed, she was also known to both complainants and discussed their relative allegations with each of them. With respect to complainant T.P., T.W.S. revealed what she knew about her relationship with the Applicant, as told to her by the Applicant. When speaking to T.P., she revealed the Applicant’s disparaging commentary about her, his acknowledged sexual violence, that he was cheating on her throughout, that he posed a risk to her daughter, and that she needed to get away from him. While T.P. responded by defending the Applicant, days later she nonetheless came forward and made her complaint to police. T.W.S. believed that T.P. was only intending to seek a restraining order from the police but, when the Applicant was charged, she now had to “play the victim”.

[9] T.W.S.’s police audio statement was not disclosed to the defence until March 13, 2024, approximately 2 ½ months before the commencement of the T.P. related trial. No explanation for this delayed disclosure was provided by the Crown. This statement was electronically disclosed in audio format. However, the T.W.S. statement was disclosed as part of the M.P. prosecution file only. Despite references to T.W.S.’s communications with complainant T.P., this file was not disclosed as part of the T.P. prosecution file. No evidence was provided for why this statement was not disclosed as part of the T.P. prosecution file. The suggestion was merely that it was disclosed in a manner consistent with its receipt as part of separated police investigations and Crown prosecutions.

[10] During the Applicant’s trial involving complainant T.P.’s allegations, witness T.W.S. was not called as a witness.

[11] On August 8, 2024, as noted, I found the Applicant guilty of two counts on the T.P. related trial. I rejected his evidence in its entirety, finding that it could not raise a reasonable doubt. However, upon my review of the totality of the remaining evidence that I did accept, contrasting T.P.’s evidence with that of the Applicant’s son’s evidence at trial, I found that a reasonable doubt was present on the third count and, therefore, acquitted the Applicant of the second allegation of sexual assault.

[12] On June 13, 2024, defence counsel “accessed” the T.W.S. audio statement from the Digital Disclosure Hub for the M.P. prosecution file for the first time. This was fifteen days after the completion of the T.P. trial. Counsel, however, did not review that statement at that time.

[13] On August 23, 2024, the M.P. prosecution Crown disclosed a transcript of the June 25, 2023, T.W.S. statement in anticipation of calling her as a witness in the M.P. related trial. The Applicant advised that only then, sixteen days after the T.P. related trial judgment on August 8, 2024 was rendered, was this statement reviewed in preparation for the M.P. related trial commencing on September 3, 2024.

[14] When that trial was completed, and before the date set for sentencing respecting the T.P. trial findings, the Applicant brought this mistrial application.

[15] On December 16, 2024, I found that regardless of counsel’s lack of expected thorough disclosure review prior to the T.P. trial matters, the Crown failed in its obligation to provide adequate and complete disclosure with respect to that matter. T.W.S.’s statement was clearly relevant to the T.P. prosecution on a Stinchcombe basis and without adequate disclosure he was deprived of the opportunity to make full answer and defence. As a result, he was deprived of the reasonable and expected opportunity to question T.P.’s motivation for her complaint and/or to raise improper collusion between T.W.S. and the complainant(s).

Analysis

[16] The remaining issue simply relates to the proper scope for the mistrial relief that I found to be appropriate. Naturally, the Applicant seeks a mistrial only on the counts for which he was found guilty. The Crown contends that the fairest approach is to declare a mistrial across the board, so that the fresh evidence can proceed allowing for a fulsome assessment of T.P.’s allegations.

Jurisdiction Respecting a Mistrial Declaration

[17] A mistrial is a discretionary remedy in common law and it is also available, as used here, as a s. 24(1) Charter breach remedy. Until sentencing has been imposed and endorsed, a trial judge is not functus officio, even in the face of an acquittal. [See R. v. C.D.H., 2015 ONCA 102; R. v. Haryard, [1993] OJ No 2939 (CA); R. v. Savage, 2008 NBQB 61.] As a result, I am satisfied that I have the jurisdiction to grant a mistrial on all or merely some of these trial counts.

The Proper Use of Discretion for this Mistrial Declaration

[18] The Crown submits that my credibility and reliability findings at trial, which informed my W.(D.) analysis on reasonable doubt, are “no longer final and dispositive, in light of new disclosure”. Fundamental fairness to both the Applicant and the Crown requires a global mistrial declaration.

[19] To make this argument, the Crown must rely upon the prospect that T.W.S. could provide evidence which might advance T.P.’s credibility and reliability respecting the third count, which in my trial judgment reasons was referred to as the “bedroom incident”. From an evidentiary and substantive basis, this argument is untenable for the following reasons:

1. T.W.S. was not present during the bedroom incident. As a result, if called she could not provide admissible evidence respecting those events;
2. T.W.S. did not provide any details about the bedroom incident in her police statement, sourced either from T.P. or the Applicant. Indeed, her police statement did not address the particulars of T.P.’s ultimate complaints. It only touched upon her exhortation that T.P. needed to wake up to the risks posed to her, as a victim, by a continued relationship with the Applicant;
3. My adverse credibility findings respecting Count 3 focused upon the inconsistencies between T.P.’s description of the bedroom event and the evidence I accepted from the Applicant’s son, who heard his father yell out for T.P. to “get out”. These narratives could not reasonably co-exist. Further, my concern over the complainant’s text messaging, as demonstrative of her jealousy on that specific evening, was also a noted credibility concern respecting her bedroom incident account. As noted, neither of these issues were addressed by T.W.S. in her police statement; and
4. Even if there were undisclosed communications with T.P. about the bedroom incident, no prior consistent statement from T.P. would be admissible through T.W.S. And there is no evidence to suggest that the Applicant made any particular admission against interest respecting the bedroom incident.

[20] Overall, it is difficult to conceive of a circumstance whereby T.W.S.’s evidence could do anything to reform or buttress T.P.’s credibility and reliability in relation to Count 3. On the face of her police statement, if T.W.S. provided any probative evidence at trial it would be focused upon the complainant’s motivation for making the complaint, or whether she was subjected to undue influence by T.W.S. herself. In any new trial, T.W.S.’s evidence would predominantly be a centre piece of T.P.’s cross-examination respecting her complaint motivations and possible collusion.

[21] During argument I specifically queried of the Crown how T.W.S.’s evidence, as it is known by way of the now available disclosure, could reform T.P. from third stage W.(D.) perspective relating particularly to the ‘bedroom incident’. No particular salutary evidentiary details were provided. Instead, I was asked to consider the unpredictability of the trial process, an uncertainty that is difficult to particularize in the hypothetical but has the potential to materialize at trial.

[22] Unfortunately, while I concede that trials are unpredictable, my primary task is to redress the harm occasioned by the breach of the Applicant’s fair trial interests, not the potential tactical advantage to the Crown occasioned by their own misconduct. The prospect that the Crown should be permitted a second opportunity to secure a conviction on Count 3, when their conduct caused harm to the fair trial interests of the Applicant and, where the additional evidence suppressed by that Charter breach is not apparently advantageous to the Crown on its face, unduly lessens the effectiveness of this Charter based mistrial remedy. Further, because the Count 3 allegations are relatively more serious than those of the first two counts, the cost of raising a Charter complaint should not, in these circumstances, come with the risk that a mistrial application may ultimately result in a completely new trial with an inconsistent verdict on that more serious count. Here, the benefit of finality, an avoidance of the risk of unnecessary inconsistent verdicts and judicial economy all support to the Applicant’s requested relief.

[23] In the totality of these circumstances, I believe that the only appropriate remedy to redress this Charter breach is to grant the Applicant’s requested relief. This disposition represents a fit and meaningful redress to this Charter disclosure-based breach. I believe the principles of fundamental justice are best reflected by a new trial that best enables the right to make full answer without, at best, needlessly prolonging the trial or, at worst, permitting a potential unwarranted Crown advantage.

Conclusion

[24] This regrettable confluence of events has resulted in a breach of the Applicant’s s. 7 Charter rights which, as I found previously, can only meaningfully be addressed by a mistrial declaration.

[25] Giving proper effect to this Charter remedy requires an appropriate balancing of the parties’ respective interests in the context of the misconduct occasioned. Here, I believe that a proper balancing yields to the Applicant. The Crown’s disclosure breach created the necessity for a retrial. It should not also create a second opportunity at conviction where this court’s reasons could not, on the face of this evidentiary record, have been reasonably disturbed by the introduction of T.W.S.’s evidence.

[26] The Applicant’s application, in its totality, is therefore granted. A mistrial is granted with respect to Counts 1 and 2, alone.

M. B. Carnegie
Released: March 3, 2025

References

[1] See 2024 ONSC 7125
[2] See R. v. C.D.H., 2015 ONCA 102; R. v. Haryard, [1993] OJ No 2939 (CA); R. v. Savage, 2008 NBQB 61