COURT FILE NO.: 22-4000000061-000
DATE: 20250211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: ) HIS MAJESTY THE KING ) A. Ingvaldsen for the Crown – and – ) R.T.L. ) A. Lobel for the Defendant
Defendant ) ) HEARD: January 30, 2025
REASONS FOR DECISION

RESTRICTION ON PUBLICATION
By court order made under subsection 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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.

LEIPER, J.

I. Introduction

[ 1 ] The Crown has applied to summarily dismiss R.T.L.’s Charter application which he brought post-conviction for a stay of the proceedings against him. The Crown submits that the Charter application is manifestly frivolous and will inevitably fail, applying the law in R. v. Haevischer, 2023 SCC 11, [2023] S.C.J No. 11, at paras. 68-69; 71-72.

II. Background to the Crown Application to Dismiss

[ 2 ] For reasons delivered on April 18, 2024, I convicted R.T.L. on four counts involving historical sexual offences committed against the complainant, A., who was R.T.L’s stepdaughter.

[ 3 ] The evidence at trial consisted of two witnesses: the complainant, A. and her mother, P. R.T.L did not call evidence at trial. Upon conviction, I ordered a presentence report and fixed a date for sentencing submissions.

[ 4 ] Prior to the date set for sentencing, counsel for R.T.L gave notice to the Crown for the first time that he would be bringing an application for a stay of proceedings based on s.7 of the Charter of Rights and Freedoms, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter”).

[ 5 ] The factual underpinning for the defence s.7 application arises from the lack of any video or audio recording made of the interviews with A. in 2004 when she denied any sexual abuse from R.T.L, and the routine deletion of detailed comments in A.’s school records in accordance with the school board document retention policy.

[ 6 ] This prosecution arose from A.’s complaint to the Toronto Police Services (“TPS”) on July 8, 2020 when she was an adult. The events of which she complained took place during her teen years, between 2004-2007.

[ 7 ] In 2004, there were brief investigations done by the Toronto Children’s Aid Society (CAS) and the TPS after a conversation between A. and her former stepsister. Both CAS and TPS interviewed A. where she denied sexual activity with R.T.L. The available notes of those contacts were disclosed to R.T.L. Neither the CAS nor the TPS recorded their 2004 interviews with A. other than in the form of notes.

[ 8 ] A. testified at trial about her reasons for lying to the authorities in 2004 about any sexual contact initiated by R.T.L. She testified that he had threatened to harm himself if she revealed what was happening, which caused her to “make it all go away” by denying anything was happening at the time. I accepted her evidence and concluded that A. was telling the truth at trial, and had explained her reasons for lying to the authorities when she was younger.

[ 9 ] Prior to trial, counsel to R.T.L sought and obtained the available records from the CAS, the TPS and available school records, and all material within the possession of the Crown.

[ 10 ] R.T.L seeks a Charter remedy on the basis that the failure of the CAS and the TPS to record their 2004 interviews with A. where she exonerated him, has denied him of his ability to make full answer and defence at trial and the proceedings should thus be stayed. He seeks to argue that this is essentially a failure to investigate and is a “lost evidence” case. Had the interviews with A. been recorded, he could have had access to additional inconsistencies in her account about their relationship which he might have used to his advantage in a case that was decided on the strength of the complainant’s credibility.

[ 11 ] In support of his application, counsel for R.T.L has summonsed both the CAS and the TPS to obtain policy evidence about their obligations to record interviews during investigations in 2004. The CAS and TPS representatives have signalled their intention to seek to quash the summonses served on them by R.T.L.

[ 12 ] In the material filed on the Charter application, R.T.L has provided a factum, copies of the historical records produced by the CAS, the TPS and by A.’s former school.

[ 13 ] R.T.L takes no issue with the recordings or the investigation done in 2023 which accused him of the conduct for which he has been convicted.

III. The Applicable Legal Frameworks

A. The Availability of Charter Remedies for Lost/Destroyed Evidence

[ 14 ] In R. v. Bero, [2000] O.J. No. 4199, the Court of Appeal for Ontario reviewed the approach to motions for Charter relief based on the failure of the authorities to preserve relevant evidence. Doherty, J for the court described the legal framework in R. v. La, 1997 S.C.J. No. 30, [1997] 2 S.C.R. 680 which Roscoe J.A. summarized in R. v. F.C.B., 2000 NSCA 35, 142 C.C.C. (3d) 540 at pp. 547-48 (N.S. C.A.):

(1) The Crown has an obligation to disclose all relevant information in its possession.
(2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.
(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.
(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.
(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor.
(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.
(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

[ 15 ] Where as here, the s.7 application alleges that the police failed to create a recording of an event, this does not constitute lost evidence: See R. v. Sherif, 2024 ONSC 4098, at para. 86; R. v. Virk, 2021 ONSC 3750, 83 M.V.R. (7th) 267, at paras. 22 and 30; R. v. Khan, 2010 ONSC 3818.

[ 16 ] Neither the Charter nor the common law require the police to record all interactions with individuals: R. v. Moulton, 2023 ONCJ 140, 524 C.R.R. (2d) 168, at para. 158.

[ 17 ] The Court of Appeal has declined to find a “free-standing constitutional right to an adequate investigation of the charge.” While an inadequate investigation might lead to the failure to prove the charge, a specific breach of a Charter right or a civil remedy, investigative inadequacies per se are not a Charter breach: R. v. Darwish, 2010 ONCA 124, 252 C.C.C. (3d) at para. 29.

B. The Test for Summary Dismissal of a Charter Application

[ 18 ] The Supreme Court of Canada recently clarified the test for summary dismissal of a Charter application: R. v. Haevischer at para. 43. For the unanimous court, Martin, J. discussed the principles enunciated by the Court of Appeal for Ontario in R. v. Kutynec (1992), 70 C.C.C. (3d) 289 at p. 302. The Court of Appeal in Kutynec decided that a “trial judge can weed out the applications which have no basis in fact or law, and can decide how and when those with potential merit should be resolved.” This principle and variations on it, have been applied across Canada for years.

[ 19 ] The restated test for summary dismissal requires a rigorous standard for summary dismissal of a Charter application. This protects the constitutional fair trial rights of those accused of criminal offences, while also ensuring efficient court proceedings and avoiding undue delay. The standard requires that only those applications found to be “manifestly frivolous” should be summarily dismissed: Haevischer at para. 3.

[ 20 ] In applying the test to the circumstances, the trial judge must assume the facts asserted by the accused, and take his arguments at their highest. The applicant’s underlying application should explain its factual foundation and point towards anticipated evidence that could establish the facts alleged in support. Only where the applicant cannot point towards any anticipated evidence that could establish a necessary fact, should the judge reject the factual allegation as manifestly frivolous: Haevischer at para. 83.

[ 21 ] Alternatively, a Charter application is vulnerable to dismissal where it relies on legal foundations which are clearly at odds with settled and unchallenged law: Haevischer at para. 86.

[ 22 ] The burden rests on the party seeking dismissal: Haevischer at para. 90.

IV. Applying the Test

[ 23 ] There are two sets of records at issue in R.T.L’s Charter application: the first are the detailed comment sections from A.’s school report cards, which are no longer in existence as a result of the school board’s document retention policy. The records that were available were produced. While R.T.L speculates that these comments might have aided in showing that A. had a habit of lying during the relevant years, there is nothing in the record that moves this suggestion beyond the realm of speculation. Further, even if there was reference to lying in 2004, which I am prepared to assume for the purposes of this application, that would not have added appreciably to the evidence before me in which A. admitted to lying at the time in the context of her relationship with her mother and what she experienced from R.T.L.

[ 24 ] Also, given that the school records were not lost or destroyed owing to unacceptable negligence, but rather in accordance with school policy, one of the necessary factual preconditions to find a breach of the duty to disclose is absent: R. v. Bero at para. 30.

[ 25 ] I turn next to the CAS and TPS investigative notes and the absence of any audio or video records. At its highest, the evidence which R.T.L would be able to tender on his Charter application would be that the CAS and TPS policies in 2004 required such recordings. For the purposes of this analysis, I take the facts at their highest and assume that the TPS and the CAS had policies in 2004 that would have required the interview with A. to have been audio or video recorded, and this was not done.

[ 26 ] To obtain a remedy, R.T.L would have to establish that he had a Charter right to a recorded investigation in 2004 which did not result in any legal jeopardy to him. I observe that because there was no complaint about sexual activity, those recordings, would at most have provided additional detail around the core “lie”, that is, A.’s denial that R.T.L was not sexually assaulting her in the home. The fact that A. lied to the authorities in 2004 was not a fact in dispute. A. admitted it in her evidence at trial.

[ 27 ] R.T.L relies on a line of case law that does not support his proposed application for Charter relief. The facts assumed, even at their highest, do not establish that the Crown has failed to disclose relevant material that was lost or destroyed as a result of unacceptable state negligence. R.T.L’s factum cites R. v. La and R. v. Bero. His factum quotes at length from the trial decision of Sosna, J. in R. v C.M.W., 2013 ONSC 4713 at paras. 20-23.

[ 28 ] In C.M.W., police had misplaced a video recorded statement of the victim of spousal abuse describing what had happened to her. There was no satisfactory explanation provided for its loss, and in the circumstances there, which included recantations after the video was made, Sosna J. stayed the proceedings applying the law of lost evidence. That is not the case here.

[ 29 ] In contrast, R.T.L seeks a remedy for material that has never existed. It is well-settled law that there is no remedy for a failure by the police to record an investigation: R. v. Sherif; R. v. Virk; R. v. Khan.

[ 30 ] As McDonnell J. noted in Khan:

The Crown’s disclosure obligation does not extend to material that is not in its possession or control and does not require the Crown to bring evidence into existence. For example, both the Ontario Court of Appeal and the Supreme Court of Canada have declined to impose either a constitutional or common law requirement that the police record videotape or audiotape custodial interrogations: R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493, at paragraph 61-65 (Ont. C.A.); R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321, at paragraph 46 (S.C.C.). Consistent with those authorities, the law in Ontario is clear that the police are not obliged to make a videotape of the breath testing process. In the leading case of R. v. Piko (2000), 6 M.V.R. (4th) 117 (Ont. Sup. Ct.), the video equipment in the breath room had broken down about ten days before the appellant was charged with failing to provide a sample of breath. The trial judge rejected the argument that the failure to videotape what occurred in the breath room breached the appellant’s rights under ss. 7 and 11(d) of the Charter. On appeal, Durno J. affirmed the decision of the trial judge:

This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the appellant’s condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available there was no Charter breach.

[ 31 ] I conclude that the legal foundation cannot support the Charter relief sought by R.T.L. The Crown has established that the application is manifestly frivolous in accordance with the test from R. v. Haevischer.

V. Conclusion

[ 32 ] The Crown application for summary dismissal of the defence Charter application is granted. The Charter application by R.T.L is dismissed.

Leiper, J.
Released: February 11, 2025

COURT FILE NO.: 22-4000000061-000
DATE: 20250211
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and –
R.T.L
REASONS FOR DECISION
Leiper J.
Released: February 11, 2025