R v. Keanik, 2022 NUCJ 21

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R v. Keanik, 2022 NUCJ 21 Date: 2022-05-25 Docket: 15-18-132 Registry: Iqaluit Applicant: Sam Keanik -and- Respondent: Her Majesty the Queen __________________________________________________________________ Before: Chief Justice Sharkey Counsel (Applicant): P. Smith Counsel (Respondent): E. Baasch Location Heard: Iqaluit, Nunavut Date Heard: April 8, 2022 Matters: Voir Dire ruling respecting lost evidence REASONS FOR DECISION (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”

I. INTRODUCTION [ 1 ] This is a case of lost evidence. The applicant, Sam Keanik, is charged with sexual interference by inappropriately touching a person under the age of 16 years contrary to

section 151 of the Criminal Code , R.S., c.C-34, s.1 ( Criminal Code ). [ 2 ] The complainant in the case gave an audio-taped statement to the police which cannot be retrieved. The applicant says his rights under

section 7 and 11 (

d) of the Charter of Rights and Freedoms have been violated. He says the loss of the statement violates his right to disclosure which in turn undermines the presumption of innocence by depriving him of the ability to defend himself at trial. [ 3 ] The applicant says his right to a fair trial has been compromised and asks for a remedy under section 24 (1) of the Charter – namely, the entry of a judicial stay of proceedings. II. THE LOST AUDIO STATEMENT & THE NEW OR SECOND STATEMENT [ 4 ] The investigating officer in this case took an audio statement [the “audio statement”] using a hand-held digital recorder.

Subsequently the statement was put on a USB memory stick. The officer then recorded other unrelated material onto this same memory stick, and in so doing inadvertently wiped out the complainant’s statement. [ 5 ] Prior to this erasure the hand-held recorder itself was lent to another officer who lost or misplaced it. No back-up of the audio statement was ever made, and so it is lost.

The mechanics of the loss are not important; the loss itself is. [ 6 ] The investigating officer then took a second statement [the “second statement”] from the complainant. [ 7 ] The officer had made notes while taking the audio statement and these notes were typed up into a General Report. Thus, even though the audio itself is lost, the General Report shows what the complainant said to the officer during the taking of the audio statement. Similarly, the officer transcribed the contents of the second statement into a Supplementary Report.

Both these reports, together with a copy of the second statement, were entered as exhibits in the proceedings. III. THE CONTENTS OF THE STATEMENT [ 8 ] Both statements – the audio and the second statement – contain little detail of the incident itself. A. The Lost Audio Statement [ 9 ] We know the content of the initial audio statement only from the investigating officer’s General Report. It shows that in the audio statement the complainant says she had Facebook conversations (which have since been deleted) with the applicant and agreed to visit him at the house where he was staying. [ 10 ] This was in May 2017.

She said when she arrived the applicant asked her if she wanted to have sex with him; she said no, and he tried to take her clothes off but she pushed him and hit him so he wouldn’t; he held her arm but she ran out of the house so fast she almost forgot her boots. B. The Second Statement [ 11 ] In the second statement the complainant says she cannot remember what she said in the audio statement but that she remembers the incident.

[12] She also talks about the Facebook conversations with the applicant and going to visit him at the house where he was staying.

Thiswas near summertime, but she remembers wearing her Team Nunavut jacket. [13] She says she remembers sitting and talking and the applicant “touching my …Down there parts with his hands.” She says she thentried to go out but that he held on to her; she was so scared that she ran out almost forgetting her boots. [14] She says the applicant wasn’t saying anything until she was trying to go home and he wanted her to stay by holding her and tellingher to stay longer, but she was scared and ran out. [15] She says she told her mother about the incident almost a year after it happened.

She also says that she had forgotten about theincident in the sense she had put it behind her until the police came around for this second time to take a statement. IV. THE DIFFERENCE BEWTWEEN THE TWO STATEMENTS [16] It is clear that the main difference – and potential point of contention - between the initial audio statement and the second statementis that in the second statement the complaint talks about the applicant touching her “down there.” This detail respecting such touching ismissing from the initial audio statement.

The other point of note is that in the second statement the complainant says she forgot what shehad told the investigating officer in the first statement. V.

SECTION 7 OF THE CHARTER & THE RIGHT TO DISCLOSURE [17] It is well settled law that the right to disclosure is subsumed in

section 7 of the Charter and as such is a component of aconstitutionally protected right. And further that the duty to disclose evidence to a Defendant carries an obligation to take reasonablesteps to preserve evidence. What constitutes reasonable steps in an individual case will vary and depend in large part on the relevanceand importance of the evidence. The more critical the evidence the greater is the duty to preserve it. [18] It follows therefore that if unacceptable negligence led to the loss of the evidence, then there is a breach of

section 7 of theCharter. See R.v.La, (SCC). [19] In two other cases involving lost statements, R. v. Inuktaluk, 2010 NUCJ 20 CanLII, and R. v. Ukkalianuk, 2014 NUCJ 18 CanLII,this Court has found that the failure to create back-up copies of audio statements constitutes unacceptable negligence and a breach of theaccused’s

section 7 Charter right to disclosure. [20] The reasoning in those cases applies equally here. I find that the failure of the investigating officer to make or provide for back-upcopies of such critical evidence as a complainant’s statement in a sex assault investigation constitutes unacceptable negligence.Accordingly, the applicant’s

section 7 right to disclosure has been infringed. [21] The question then becomes, what to do about it? VI. THE REMEDY OF A JUDICIAL STAY OF PROCEEDINGS PURSUANT TO SECTION 24 (1) OF THE CHARTER [22] In order for the applicant to secure a stay of proceedings he must demonstrate that the breach will manifest itself in the trial itselfby prejudicing him in the sense he is unable to properly mount or put forth a defence. [23] This question of when a stay of proceedings should be determined was also addressed by the Supreme Court in R. v. La, supra,

where Sopinka J. suggested that the alleged prejudice is best assessed after the trial judge has heard some or all of the evidence: The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence.

Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application.

This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit . [ 24 ] The point here is that the measurement of the extent of any prejudice cannot usually be done without hearing the evidence, the nature of which would make it clear whether the prejudice was real or minimal. [ 25 ] Cases where stays of proceedings have been granted in cases of the negligent loss of evidence (as opposed to the destruction of video tapes for policy reasons) are rare. However, the case of R. v. Grabowski

(2009) OJ No. 5497 [and cited by Johnson J., at paras 63 & 64 in R. v. Inuktaluk, supra ] is such an example. [ 26 ] In Grabowski the complainant’s statement (interview) was lost when the video machine malfunctioned; the investigating officer made notes of the interview but did not take a second statement. During the trial the complainant was confronted with inconsistencies between her trial testimony and the officer’s notes of her interview.

She disputed these inconsistencies claiming that the lost video would confirm her trial testimony that no such inconsistencies existed. [ 27 ] Lane J. held that the loss of the video caused actual prejudice to the accused which made it impossible for him to put forth his defence – and that this right of the accused to make full answer and defence could not be remedied except by a stay of proceedings.

Lane J. made the observation that irreparable harm would be caused to the integrity of the system if the prosecution was allowed to continue. [ 28 ] It is worthy of note that Grabowski was a case where the judicial stay was entered once the remedy was clear to the judge after hearing the testimony at trial. VII. HAS THE APPLICANT SHOWN PREJUDICE AT THIS STAGE? [ 29 ] The Court in R. v. Grimes 1998 ABCA 9 CanLii [and cited by Johnson J., at para 26 in R. v.

Inuktaluk , supra ] makes note that the right of the accused [applicant] was not to a perfect trial, but to a fair one. [ 30 ] At this stage it is not clear to me that Mr. Keanik’s defence is prejudiced by the loss of the statement, and if it is prejudiced, the degree to which it is prejudiced. [ 31 ] This case may well turn on the reliability and credibility of the complainant. The applicant will not be able to put the audio statement to the complainant during cross-examination.

That said, it will be admitted by the Crown and accepted by the Court that the lost audio statement does not contain the specific critical detail of the alleged touching which appears in the second statement. [ 32 ] Presumably, the complainant will provide such detail in her testimony in which case the supposed inconsistency may play into the judge’s assessment of her reliability and/or credibility. [ 33 ] Similarly, if the complainant maintains in testimony that she cannot remember what she said in the audio statement, then this may (or may not) be critical to her reliability and/or credibility. [ 34 ] But these are all matters for the trial judge to assess, as is the question respecting any prejudice to the applicant.

[ 35 ] The application may be renewed during or at the conclusion of the trial, at which time the trial judge will have sufficient context to assess the impact the loss of the statement has had on the fairness of the trial and the right of the accused to make full answer and defence. Dated at the City of Iqaluit this 25th day of May 2022, ___________________ Chief Justice N. Sharkey Nunavut Court of Justice