R v Girou, 2016 ABQB 607

Court of Queen’s Bench of Alberta Citation: R v Girou, 2016 ABQB 607 Date: 20161027 Docket: 150442952Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Shai Cameron Girou Accused (Applicant) _______________________________________________________ Decision on Stay Application of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Table of Contents I. Introduction . 2 II. Factual background . 2 III. Issue . 3 IV. The Law .. 4 V. Preliminary issue: appropriateness of ruling on a stay application ahead of trial 5 VI. Analysis . 7

A. Prejudice . 7 B. Mitigation of prejudice . 10 1. Record of the Preliminary Hearing . 10 2. First Statement 11 3. Constable B’s handwritten notes and typed report (Ex VD 1-2) 11 4. Third party witness statements . 13 5. Has the defence established its right to full and defence is blocked? . 13 VII. Conclusion . 14 I. Introduction [ 1 ] This is my decision on an application by the Accused to have a stay of proceedings entered based on the unexplained loss by the RCMP of an audio statement which had been obtained from a complainant in a sexual assault investigation.

The Applicant asserts this unexplained loss of key evidence is so prejudicial to his right to make full answer and defence that the disappearance of this data impairs his right to receive a fair trial. The Crown concedes that the unexplained loss of the audio statement constitutes a breach of the Canadian Charter of Rights and Freedoms,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c 11 [the “ Charter ”], s 7. That concession was made during argument in the voir dire hearing held to deal with the now admitted s 7 breach. What remains is to determine the appropriate Charter , s 24(1) remedy, if any. II. Factual background [ 2 ] On March 8, 2015 an RCMP detachment in a small town in Alberta received a report of an alleged sexual assault committed on Ms. X (the “Complainant”).

At approximately 5:30 a.m. on that day two members of the RCMP attended her residence to commence their investigation. [ 3 ] Constable L observed the Complainant was emotional, crying, and appeared to be very intoxicated. He confirmed that observation again in the voir dire hearing. At that time Constable L agreed with defence counsel that on a drunkenness scale of 1 – 10, the Complainant presented as an “8”; she was “quite intoxicated” he said. [ 4 ] One of the investigators spoke with the Complainant and a female friend, Ms. Y. Both gave brief statements about the circumstances of the incident.

The police seized the Complainant’s clothing and drove her to a local healthcare centre. [ 5 ] At approximately 5:55 a.m. on March 8 the Complainant was admitted to an emergency room. An audio recorded statement was obtained from Ms. Y and has been disclosed (Ex VD1-4). [ 6 ] At approximately 6:13 a.m. Constable L conducted an 8 minute “preliminary interview” of the Complainant, which was audio recorded and provided to defence counsel (Ex VD1-1) (“First Statement”). At the voir dire hearing this officer confirmed that the Complainant was “still intoxicated” and “very, very emotional ...”.

Constable L agreed with defence counsel that as an investigator it was important for him to obtain a further statement from the Complainant. [ 7 ] Between 6:53 a.m. and 8:30 a.m. a sexual assault examination was conducted on the Complainant by a physician. All the evidence produced was seized by the police. [ 8 ] At approximately 2:00 p.m. on March 8, 2015 then Constable B (now a Corporal) of the RCMP attended the residence of the Complainant’s mother to obtain a detailed statement from Ms. X. This longer interview of the Complainant was audio recorded on a handheld digital recorder (the “Second Statement”).

Constable B also made handwritten notes (part of VD1-2) during the course of this interview. Constable B reviewed those handwritten notes and listened to the Second Statement audio recording as she prepared her typed report for disclosure purposes (also part of VD1-2). [ 9 ] The Second Statement audio file was lost by the RCMP sometime between March and October 2015. Crown counsel conceded in the course of argument in the voir dire that the loss of the Second Statement audio file is unexplained.

No transcript of the content of audio file was prepared prior to its disappearance. [ 10 ] Before the preliminary hearing on the sexual assault charge, defence counsel became aware that the Second Statement was not in the disclosure package provided to the defence and requested that it be produced.

Inquiries were made by the Crown, but the Second Statement audio file could not be located. [ 11 ] A preliminary hearing was held on October 5, 2015 in the Provincial Court of Alberta, but the Second Statement was not available for use by the defence counsel when he cross-examined the Complainant on her version of the alleged sexual assault. The Complainant had been given a transcript of the First Statement for review prior to giving her evidence. The Accused was committed for trial.

[12] Defence counsel brought an application to stay the charge based on lost evidence. The Crown and defence counsel agreed todeal with the Charter motion in advance of the trial, including the issue of remedy should a Charter breach be found. The applicationwas heard on July 28-29, 2016 in a voir dire and judgment was reserved. [13] It is common ground that the members of the RCMP investigating this incident and who had custody of the Second Statementacted in good faith at all times. III.

Issue [14] The Crown has conceded that the loss of the Second Statement cannot be explained and that the Crown has not met itsdisclosure obligation. That breaches the Charter s 7 rights of the Accused. [15] The issue that remains is whether the Accused has established prejudice to his right to make full answer and defence such thata stay should be granted? [16] Clearly, evidence has been lost, and it is logically important evidence. However, is there other evidence available to thedefence which could mitigate the prejudice to the Accused such that a stay should not be granted? IV.

The Law [17] The Accused has asked the Court to enter a stay of proceedings remedy under s 24(1) of the Charter. In R v Grimes, 1998ABCA 9 at para 25, 209 AR 360 the Court indicates that a stay is a rare, last resort remedy, and only issued in the “clearest of cases”. Anaccused person must establish on a balance of probabilities that

a) lost evidence is of “major importance to the defence case” and “a fairtrial cannot be had without it,” or

b) the lost evidence deprives the accused of the opportunity to make a full answer and defence. [18] The procedure and legal test which is applied when evidence is lost was more recently reviewed by the Alberta Court ofAppeal in R v Svekla, 2010 ABCA 390, 493 AR 346. That decision has strong similarities to the present matter, since in R v Sveklapolice lost a recording of a post-offence interview with a complainant, though the interviewing RCMP officer took notes and prepared areport.

The decision reviews the appropriate considerations and test for a stay: 24 A stay of proceedings is only appropriate when: (1) the prejudice caused by the abuse in question will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing thatprejudice ...

A stay should only be granted 'in the clearest of cases', where the prejudice to the accused's right to make full answer anddefence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution werecontinued... 25 ... the Supreme Court added that most cases of abuse of process will cause prejudice by rendering the trial unfair.

The degree ofprejudice resulting from a Charter breach is to be considered at the remedy stage ... 26 The Court also noted that there may be cases where there is uncertainty about whether the abuse is sufficient to warrant thedrastic remedy of a stay ... In those cases ...

"it will be appropriate to balance the interests that would be served by the granting of a stayof proceedings against the interest that society has in having a final decision on the merits" and "a compelling societal interest in having afull hearing could tip the scales in favour of proceeding". 27 In JGB, the issue was the effect of the loss of a written statement given by the complainant to the police a few days after heroriginal oral statement. Her oral statement, three subsequent statements and her preliminary inquiry evidence were available for thepurposes of cross-examination.

The Court stated that the mere fact of missing evidence would not establish irreparable harm to the rightto make full answer and defence ... "Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lostevidence and not simply that the loss of the evidence makes putting forward the position more difficult": ibid. In making this assessment,the existence of other evidence containing essentially the same information is "an essential consideration": ibid.

The Court listed twelvefactors that courts have taken into account in making the "very fact specific" determination of whether to grant a stay in the face of lostevidence ... [Emphasis added, citations omitted.] [19] The Ontario case of R v Bradford (2001), (ON CA), 52 OR (3d) 257, 139 OAC 341 (Ont CA) identifiesfactors that are potentially relevant to whether a stay is or is not appropriate: • the emotional or psychological status of the complainant at the time the allegations were made ... • the time when the complaints were made in relation to when the allegations occurred, i.e. before or after therapy ... • whether the investigating officers who took the statement were available for questioning ... • whether the complainant made other statements prior to trial that the defence can use to attack her credibility ... • whether the Crown concedes that proposed substitute evidence is a statement of the complainant and may be used for the purposesof cross-examination of the complainant ... • whether the statements that do exist appear to contain the same amount of detail as the lost statement ...

• the extent of the complainant's present ability to recall the contents of the earlier statements ... • the complainant's present ability to recall the details surrounding the various alleged incidents of abuse ... • any apparent or potential inconsistencies in the complainant's trial testimony or between her other statements and her evidence atthe preliminary hearing ... • whether the accused was made aware of the contents of the lost evidence before its destruction or disappearance ... • whether the Crown gave any undertaking to the accused at the time that matters would not proceed with the result that the accuseddid not retain his own records ... • what other witnesses had to say at the time in support or contradiction of the complainant's allegations ... [Citations omitted.] [20] R v Bradford at para 8 stresses that actual prejudice is evaluated on whether other available evidence contains essentially thesame information as the lost evidence.

In other words, this is a substantive investigation, rather than one that focuses only on formalities. V. Preliminary issue: appropriateness of ruling on a stayapplication ahead of trial [21] The Ontario Court of Appeal in R v Bero (2000), (ON CA), 137 OAC 336 at para 18, 151 CCC (3d) 545(Ont CA) indicates that typically a stay application of this kind is considered only after all relevant evidence has been obtained. ... The trial judge should not have ruled on the motion at the outset of the trial.

This Court has repeatedly indicated that except where theappropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought inthis case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice causedto an accused by the destruction of evidence at the end of the trial ...

In keeping with that approach, I will consider the appellant's claimthat a stay should have been granted in the light of the evidence which was adduced at the trial. [Emphasis added.] [22] I have not followed this recommended practice of going ahead with a trial and deciding a stay application after all theevidence has been heard by the jury. I believe that approach is not necessary here for a number of reasons [23] First, the voir dire provided me an opportunity to see all of the evidence available for the prosecution of the Accused. Indeed,I have seen more than a jury would ever see.

I am satisfied that if the trial proceeded in a court composed of a judge and jury, that Iwould end up staying the charge at the end of the evidence phase, and discharge the jury. [24] Secondly, the Crown and defence agreed to resolve the Charter breach and ensuing remedy through a pretrial hearing. That iswhat I take from statements of the Crown counsel where she said at p 88, ll 8-9 of the transcript of argument: ... the reason we brought this before the Court is because if we can save a jury trial, we would. ...

And again at p 91, ll 15-16: ...we’re at this point and we really were trying to be efficient with court time and resources because there’s a jury ... [25] I think the approach taken by counsel for both sides is completely reasonable and laudable. The Crown in particular submittedto this pretrial process. The granting of a stay was a remedy which the Crown must have understood could result from this defenceapplication. [26] In R v Jordan, 2016 SCC 27 the majority stressed the Crown, defence, and court “changing court culture” to meet a newcollaborative approach to criminal litigation.

The parties have here met their obligation that “[b]oth parties should focus on makingreasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance.” (para 138). R v Jordaninstructs trial courts to adopt efficient procedures: para 139. “Ultimately, all participants in the justice system must work in concert toachieve speedier trials.” (para 116). [27] Strictly following the instruction in R v Bero would be nothing more than a victory of formality over function.

It provides nobenefit, incurs unnecessary expenditure of court and litigant resources, and worse, requires Canadian citizens fulfill their obligations asjurors for no useful purpose. Combined, these factors are a strong basis to depart from the instruction in R v Bero. To be clear, I am notrejecting the principle that a stay is best tested against the complete body of relevant evidence.

Rather, where a court can proceed withsatisfaction that the intention of the R v Bero rule is met, then a pre-trial hearing is an acceptable alternative, and will in most instancesbe the preferred route. [28] I now move to conduct my analysis as to whether this is one of the “clearest of cases” where a stay should be granted. VI. Analysis [29] I deal first with the question of whether prejudice has been established by the Accused and will then go on to review whetherthere are any other acceptable means to mitigate the effect of that prejudice.

[30] This is a useful point at which to return to R v Svekla because its facts and legal analysis provide a useful comparatorscenario. As I previously noted, there are strong parallels between R v Svekla and the current application. In R v Svekla the sexualassault complainant was five years old at the time of the alleged abuse. She reported the abuse to relatives several months later, and thepolice interviewed the child and the relatives. The child’s statement was audio and video recorded, but not transcribed. The interviewingofficer took handwritten notes, and made a final report. No charges were laid.

The interview recordings were lost. A renewedinvestigation began over a decade later, and that led to the criminal proceeding and conviction reported in R v Svekla. [31] At trial the complainant, now 18, could provide only “scant” evidence with few details.

However, the trial judge had othercorroborating evidence, including that the accused had prepared a document while in therapy that indicated the abuse had happened, theaccused had later made statements to the complainant’s foster mother which implied sexual abuse had occurred, and that Svelka was bythis point already convicted of abusing another child in this household in essentially the same way; this was relevant similar factevidence. [32] Binder J at trial convicted Svekla.

The Court of Appeal confirmed that conviction, and rejected an appeal that a stay ought tohave been ordered because of the lost original statement. This was a “close case” (para 33). The trial judge recognized the issue (para31), but in this case the significant corroborating evidence meant society’s interests require “a final decision on the merits” (para 32),despite the fact the defence’s capacity to cross-examine was impeded by the Charter s 7 breach. A.

Prejudice [33] I begin my analysis on the prejudice issue by looking first at the importance of cross-examination in the criminal law context.In R v Osolin, (SCC), [1993] 4 SCR 595 at 663, 109 DLR (4th) 478, Cory J stressed the critical and fundamental roleserved by cross-examination in a criminal proceeding. 157 There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness iscredible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony.

Forexample, it can demonstrate a witness's weakness of sight or hearing. It can establish that the existing weather conditions may havelimited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing. Its importancecannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that anaccused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to anaccused.

This is an old and well established principle that is closely linked to the presumption of innocence. ... The importance of theright to cross-examine was well expressed by the Court in the reasons of Ritchie J. ... he wrote: I think it essential to stress the purpose for which the cross- examination is permitted, namely, in order that the defence may explore tothe full all factors which might expose the frailty of the evidence called by the prosecution.

That the accused as he stands in theprisoner's box on trial for murder is deemed to be innocent until proven guilty beyond a reasonable doubt is one of the fundamentalpresumptions inherent in the common law and as such the accused is entitled to employ every legitimate means of testing the evidencecalled by the Crown to negative that presumption and in my opinion this includes the right to explore all circumstances capable ofindicating that any of the prosecution witnesses had a motive for favouring the Crown. 158 In R. v.

Seaboyer, (SCC), [1991] 2 S.C.R. 577, it was once again emphasized that the right to cross-examineconstitutes a principle of fundamental justice that is critical to the fairness of the accused's trial. In that case, the right to cross-examinewas placed in the context of the right to make full answer and defence ... The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on beingable to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. ...

In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the lawsays one is entitled. The defence which the law gives with one hand, may be taken away with the other. Procedural limitations makepossible the conviction of persons who the criminal law says are innocent. 159 Cross-examination is all the more crucial to the accused's ability to make full answer and defence when credibility is the centralissue in the trial. ...

In a case where the guilt or innocence of the [accused] largely turned on credibility, it was a serious error to limit the [accused] of hissubstantial right to fully cross-examine the principal Crown witness. It would not be appropriate in the circumstances to invoke or applythe curative provisions of s. 613(1)(b)(iii). ...that the events about which counsel sought to cross-examine were relevant on the question of the credibility of the witness .... Theaccused in this case cannot be said to have had an opportunity for a fair answer and defence when he was not permitted to ask them.

Cross-examination is a most powerful weapon of the defence, particularly when the entire case turns on credibility of the witnesses. Anaccused in a criminal case has the right of cross-examination in the fullest and widest sense of the word as long as he does not abuse thatright. Any improper interference with the right is an error which will result in the conviction being quashed. 160 Thus it can be seen that the right to cross-examine has always been held to be of fundamental importance in a criminal trial. Thatright is now protected by ss. 7 and 11(

d) of the Charter. As a result it should be interpreted in the "broad and generous manner befittingits constitutional status" ... [Emphasis added, some citations removed.]

[34] I recognize that some of these statements deal with errors committed by trial judges in unduly restricting the scope of cross-examination.

However, these principles about the fundamental importance of cross-examination in a criminal trial also extend tosituations such as the one present here, where the original of a statement (the Second Statement audio file or a resulting transcript) is notavailable to the defence for the purpose of challenging the credibility of the Complainant and the reliability of her evidence. [35] It is admitted by the Crown and I find as a fact that the Second Statement made by the Complainant is not available for cross-examination purposes. [36] In this case, the Crown must prove all elements of the charge of sexual assault based on credible evidence.

The Crown has theobligation to prove its case beyond a reasonable doubt, based on witnesses who are truthful and who give reliable evidence. The defencemay respond by directly challenging the veracity of the Complainant’s account, leading to a R v W(D), (SCC), [1991] 1SCR 742, 63 CCC (3d) 397 analysis, and/or argue a defence of honest but mistaken belief: R v Ewanchuk, (SCC),[1999] 1 SCR 330, 169 DLR (4th) 193; R v Handy, 2002 SCC 56, [2002] 2 SCR 908.

All these issues involve witness credibility andreliability. [37] Challenges to the truthfulness of a witness and the reliability of their evidence are often based on a prior statement orstatements made by that witness.

Whether it is a judge in a judge alone trial, or in a court composed of a judge and a jury where the juryis the fact finder, a critical factor as to whether a witness is credible arises if the at-trial evidence is inconsistent with a prior statement,particularly a statement made closer in time to the offence. [38] Without a complete set of all statements made by a complainant, counsel for an accused person is at a disadvantage becausecounsel cannot be sure what the answer will be to a particular question.

Put another way, defence counsel do not have the complete set oftools to challenge the accuser and then contradict the witness if the answer is offside with the prior statement. [39] This is particularly true in the context of a sexual assault trial such as the case here which will turn primarily on the credibilityof a complainant. The jury will be evaluating two accounts of the same event, in isolation. [40] Furthermore, an audio recording of the Complainant offers a kind of information that is not available in any other form: thetone and demeanor of the complainant.

In R v Oickle, 2000 SCC 38 at para 46, [2000] 2 SCR 3 Iacobucci J observed the unique value ofrecorded police interviews (in that case an interrogation), because recordings of this kind not only provide the finder of fact with thewords used by the police and interviewee, but other contextual cues such as tone and demeanor. [41] Another sense in which an audio recording could be particularly relevant is to assist the finder of fact address a live questionin this matter - the degree to which the complainant was intoxicated or otherwise impaired at the time of the Second Statement.

It is wellestablished in Canada that a layperson has the expertise to evaluate that directly: R v Graat, (SCC), [1982] 2 SCR 819,144 DLR (3d) 267. [42] The potential implications of tone and demeanor, and intoxication and impairment are relevant to both the credibility of theComplainant and the reliability of her evidence. [43] Based on the fact that the Second Statement is lost and not available for a full cross-examination of the Complainant as to hercredibility, I am satisfied that the Accused has established prejudice in this case. B.

Mitigation of prejudice [44] I now examine whether the prejudice to the Accused can be sufficiently mitigated to still allow the Accused to make fullanswer and defence. [45] The Crown’s position on this point is that there are a number of other pieces of evidence which can be used by the defence tocross-examine the Complainant. That evidence is said to consist of the statements of third party witnesses, other ‘statements’ made bythe Complainant in the course of the investigation, and the transcript of the Preliminary Hearing.

All of these materials have beenpresented to me in the course of the voir dire and I have examined them. I have the following observations: 1. Record of the Preliminary Hearing [46] The evidence heard at the Preliminary Hearing was played for me on the second day of the voir dire (July 29, 2016) and theaudio file is found in Ex VD1-3.

Subsequently, a transcript of that audio file was provided to me by Crown counsel and I have referred toit in preparing this Decision. [47] The evidence at the Preliminary Hearing consists of the sworn testimony of the Complainant; her direct examination byCrown counsel and the subsequent cross-examination by defence counsel. [48] During her cross-examination by Mr. McIntyre, there were many things about the incident which the Complainant could notremember. None of her prior statements were put to her for the purpose of refreshing her memory either by the Crown or defencecounsel.

Apparently, she had been given her First Statement for review prior to being called. [49] The Second Statement was not put to her because, of course, it had been lost. It appears that counsel did have Constable C’styped

summary and her handwritten notes, but none of these materials were supplied to the Complainant to refresh her memory. As itturned out, the Complainant’s memory was not good and she testified she could not remember some of the key points of the incident,especially points which were put to her by the defence. The result is that the transcript of the Preliminary Hearing is of little use. TheComplainant had only a limited recollection of what had happened.

In the result, while I acknowledge that the defence could use theComplainant’s answers in the Preliminary Hearing transcript to cross-examine at trial, it is very limited and obviously her answers werenot based on questioning arising from the nonexistent Second Statement.

[ 50 ] Courts recognize that a person’s memory of an event typical fades or distorts as time passes. That is another limitation of the Preliminary Hearing transcript, and one that is obvious on the record. The Complainant indicates holes in her memory. These gaps cannot now be filled due to the loss of the Second Statement. This on its own is a significant impediment to the defence’s capacity to make a full answer and defence. 2. First Statement [ 51 ] The First Statement consists of the audio file and a transcript of that interview.

However, as I have noted above in the Factual Background portion of this Decision, the Complainant was “still intoxicated” and “very, very emotional” at the time this interview occurred. Obviously Constable L, the investigating officer taking the First Statement, did not consider the content of that statement to be reliable evidence. He requested that a further interview be conducted by then Constable B. [ 52 ] While the First Statement is available to the defence for cross-examination purposes, its utility appears to be somewhat limited.

At the Preliminary Hearing the Complainant was cross-examined about this interview with Constable L and admitted that she had difficulty remembering what had happened “between you and this man ...” (Transcript, p 13, ll 15 – 17). The content of the First Statement will not be of much use at a trial to refresh her memory, or for cross-examination purposes. Further, I do not see that the First Statement is a replacement for the lost Second Statement. In

summary, the First Statement exists, but it is essentially useless. 3.

Constable B’s handwritten notes and typed report (Ex VD 1-2) [ 53 ] As noted in the Factual Background portion of this Decision, Constable B made handwritten notes during the course of the interview of the Complainant and later used those handwritten notes and listened to the Second Statement audio recording as she completed her typed report for disclosure purposes (VD1-2). [ 54 ] At the Preliminary Hearing the transcript shows that the Complainant had virtually no recollection about what she had said to Constable B during the second recorded interview. [ 55 ] The fundamental problem with using these materials for cross-examination purposes is that they are not a verbatim reconstruction of what the Complainant said in that interview.

These are not her statements. They are hearsay, and as such are presumptively inadmissible: R v Khelawon , 2006 SCC 57 at para 42 , [2006] 2 SCR 787. The onus to prove hearsay is admissible falls to the party who seeks to admit that evidence: R v Khelawon , at para 47 .

One well-characterized exception to the hearsay rule is where testimony is not available from the witness because a witness indicates a loss of memory or recants an initial report: R v Napope , 2015 ABCA 27 at para 28 , 13 Alta LR (6th) 347. [ 56 ] The weight and ultimate admissibility of hearsay is affected by the reliability and probative value of the hearsay materials. Here, the probative value of the Second Statement is critical for both the Crown and defence, and so are materials derived from the Second Statement. [ 57 ] The question therefore is reliability.

For example, in a technical sense a professionally produced transcript of a police interview is hearsay - it is a second-generation record of original evidence. However, it has high reliability because of the manner in which it is produced. Unlike that hypothetical transcript, the ‘mitigating’ materials here have a number of problems. [ 58 ] First, the handwritten notes are often illegible and very sparse. These are the type of notes typically made by a police officer to assist in refreshing his or her memory.

They are of very limited use for cross-examination purposes, other than cross-examining the particular police officer who made them. Putting those to the Complainant leads to what are obviously problematic results. The cross- examination shifts from “why did you say [x]?” to “can you say why Constable B wrote [x] in her notes of your interview?” Any answer could be simply conjecture. [ 59 ] Further, there are inconsistencies between what is reflected in the handwritten notes and the typed report making up the balance of Exhibit VD 1 – 2. Some of these inconsistencies are very important.

One example is whether the Complainant had told the Accused to keep the door of her bedroom ‘open’ or ‘closed’. The handwritten notes reflect the words “Do you want door shut. I said open. He shut it.” This is to be compared to the typed report which states “He asked her if she wanted the door open or closed and she said “closed”. In the typed report the word “closed” is in quotation marks, which Constable B testified was meant to reflect a direct quote of what she had heard on the tape. [ 60 ] Another example involves the description of the assault.

The handwritten notes state “He flipped me around again, put penis in my butt”. This is to be compared to the typed report which substituted the word “anus” for the word “butt”. During cross-examination in the voir dire by defence counsel, Constable B acknowledged she had made this substitution. [ 61 ] Further, the sequence of the assaultive conduct of the Accused is also out of order. In the First Statement, the forced fellatio seems to follow acts of anal and vaginal intercourse. In the typed portion of VD 1 – 2, it appears that the forced fellatio comes first.

At the Preliminary Hearing, the actual sequence of the acts making up the sexual assault is unclear. [ 62 ] However, I am particularly concerned about the inconsistencies between the handwritten notes and the typed statement. In my view, the typed statement and the handwritten notes are not an accurate reflection of what the Complainant actually said when she was interviewed by Constable B at the time of recording the Second Statement. These materials are not an adequate substitute for the audio file portion of the Second Statement.

Returning to the question of whether this is admissible hearsay, the probative value of these records is high, but its reliability is questionable. [ 63 ] There are also procedural and process issues that arise because this matter would be heard by a jury. Here the defence would also be faced with tactical difficulties in using the typed statement and handwritten notes as a basis for cross-examining the Complainant.

While the jury could be told that the complete version of what the Complainant said to Constable B has been lost and that the typed report and handwritten notes made by Constable B may be used either to refresh the memory of the Complainant or for cross-

examination purposes, I fear the subtlety in that direction may be lost on a jury. [64] Cross-examination through this sort of filter would make a clear and succinct cross-examination very difficult. The awkwardapproach to cross-examination suggested by the Crown could be off-putting for the jury and further prejudice the Accused in making hisdefence. [65] For all of these reasons I am concerned that the availability of these materials for cross-examination purposes is not sufficientto overcome the prejudice caused by the loss of the audio file portion of the Second Statement.

Attempting a cross-examination usingthese resources may even compound the prejudice to the Accused. 4. Third party witness statements [66] Crown counsel made reference to the existence of third party statements provided by friends of the Complainant to the police(VD1-4 and 6). How these statements can be a useful source for cross-examining the Complainant eludes me. These too are hearsay. [67] They might be used to cross-examine the makers of those statements, but I do not see how they can be used in any way to putquestions to the Complainant by either the Crown or the defence.

These materials are also not useful. 5. Has the defence established its right to full and defence is blocked? [68] This analysis devolves to an easy to state but nuanced question: can the defence make a full answer and defence in the absenceof the Second Statement? I think it is useful to at this point return to R v Svekla, because that case makes an interesting and usefulcomparator. In many ways these two cases are very similar.

Both involve a complainant who alleges sexual misconduct, the complainantthen made a statement that was then lost, the complainants indicate little memory of the offense conduct or their post-offense statements.In both instances there is additional evidence that could buttress the Crown’s case and the complainants’ account. [69] There are, however, important distinctions. In R v Svekla, the conviction rested chiefly on a single question: did the sex actoccur? If it did, Svekla was guilty. The complainant was five years old. Consent was not an issue. The surrounding context of the offensewas of reduced relevance.

The opposite is true here. Consent, and the perception of consent, are critical questions in an alleged sexualassault scenario that involves two (or more) adults. The Complainant’s actions are a critical component of a defence of mistaken buthonest belief in consent. Here, the Accused’s ability to explore that avenue is significantly impeded. [70] Second, different standards and approaches apply between adult and child witnesses. This is particularly true for credibility: Rv B(G), (SCC), [1990] 2 SCR 30, 111 NR 31.

For example, at pp 54-55 of that decision Justice Wilson stressed thatrecollection of precise details is less relevant in assessing the reliability of a child witness. Yet, for adults, that kind of dissection iscritical to distinguish between credible and fabricated evidence. Confirmatory evidence is very different, for child and adultcomplainants: R v W(R), (SCC), [1992] 2 SCR 122 at 134-136, 137 NR 214 [71] Third, the ‘mitigating’ evidence in each case is quite different. Svekla all but confessed his misconduct.

In R v Svekla therewas also similar fact evidence on the key question: had the accused engaged in sexual activity with children. [72] Though R v Svekla and the current matter are, superficially, very similar, there are deeper and significant differences. TheCourt of Appeal in R v Svekla called that “a close case”. Here, I have a much stronger basis to conclude that the Accused’s right to fullanswer and defence is blocked. I conclude that there is neither a practical nor fair way to mitigate the prejudice caused by the loss of theSecond Statement. [73] The Accused has a right to make full answer and defence.

I put the emphasis on the word “full”. Reliance on other materialsto conduct a cross-examination of the Complainant in this serious sexual assault case is not optimal and for me does not equate toallowing the Accused to make ‘full’ answer and defence. I conclude that there are no other measures which could be used here toovercome the prejudice caused by the unexplained loss of the Second Statement. VII.

Conclusion [74] Balancing the societal interest of having a full trial on the merits of this charge before a jury and the right of the Accused tomake full answer and defence, I conclude that this is one of those “clearest of cases” where a stay should be granted to respect the rightsof the Accused. I exercise my discretion to grant a stay in these circumstances. In

summary, a judicial stay of the charge of sexual assaultagainst the Accused shall be entered. Heard on the 28th and 29th days of July, 2016 at the Law Courts in Edmonton, Alberta. Dated at the City of Edmonton, Alberta this 24th day of October, 2016.

D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Evan McIntyre (Pringle, Chivers, Sparks, Teskey) for the Accused (Applicant) Ms. Brandy L. Shaw (Crown Prosecutors Office) for the Crown (Respondent)