R. v. D.A., 2020 NUCJ 42

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. D.A., 2020 NUCJ 42 Date: 2020-12-11 Docket: 18-19-200 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: D.A. ________________________________________________________________________ Before: Mr. Justice Lyons Counsel (Crown): E. Baasch Counsel (Accused): P. Smith Location Heard: Iqaluit, Nunavut Date Heard: October 2, 2020 Matters: Pre-trial decision on application for stay of proceedings pursuant to ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] D.A. is charged with sexual assault. The complainant gave an audio-taped statement to the police regarding the alleged assault which was later lost by police and cannot be retrieved. [ 2 ] D.A. makes a pre-trial application for a stay of proceedings pursuant to

section 7 and 24(1) of the Charter on grounds that the loss of the statement violates his right to disclosure and unfairly undermines his ability to defend himself at trial. He asserts that the evidence was lost as the result of unacceptable negligence, and that the prejudice to his fair trial rights is serious enough to require a stay of proceedings. II. THE FACTS AROUND THE TAKING OF THE STATEMENT AND ITS LOSS [ 3 ] On July 9th, 2016, Cst.

Drouin took an audio-recorded statement from a complainant who alleged she may have been sexually assaulted the previous day by an unknown assailant. [ 4 ] While taking the statement, Cst. Drouin took contemporaneous notes of what was said. After the statement, the recording was saved on a USB memory stick. No backup copies of the recording were made to any other devices or computer servers. The next day, Cst.

Drouin listened to the recording and summarized it in a general report. [ 5 ] As a result of a technical problem, the audio recording was later irretrievably erased when the memory stick was plugged into a printer. [ 6 ] At the time there were no RCMP policies requiring officers back up audio statements on a hard drive or server, and Cst. Drouin was not trained to do so. In fact, Cst.

Drouin had been told not to save statements to the detachment computers as the detachment computers lacked sufficient storage space at the time. [ 7 ] After the loss of the statement the police added a server to allow back-up copies of statements to be saved, and Cst. Drouin changed her practice and now makes back-up copies of all audio statements to servers and DVD’s. III. ANALYSIS [ 8 ] The state’s failure to preserve relevant evidence amounts to a s.7 Charter breach when the loss of the evidence is the result of unacceptable negligence. [ 9 ] The Crown has conceded that Cst.

Drouin’s failure to make a back-up copy of the statement constituted unacceptable negligence and that D.A.’ s. 7 Charter right to disclosure was breached as a result. I agree. [ 10 ] An audio statement taken from a sexual assault complainant the day after the alleged assault is highly relevant evidence. The credibility of the complainant is almost always a central issue at trial, especially in cases where there are no other witnesses to the alleged incident, as appears to be the situation in this case.

Complainants’ out-of-court statements assist in assessing reliability and credibility at trial and provide a means for triers of fact to decide cases justly. Accordingly, police are required to exercise a high degree

of care to ensure preservation of such evidence. [11] By failing to create a backup copy of the statement, the police did not exercise this required degree of care.

USB memory sticks areeasily lost, and as is made evident in this case, their data can be corrupted and erased due to technical problems. [12] In two other cases involving lost statements, R v Inuktaluk, 2010 NUCJ 20, and R v Ukkalianuk, 2014 NUCJ 18, this court hasfound that failure to create back-up copies of audio statements constitutes unacceptable negligence and a breach of the right to disclosure.The reasoning applied in those cases applies equally here. IV.

REMEDY [13] Having found that D.A.’s s. 7 Charter right has been breached, I now turn to the issue of the appropriate remedy. [14] D.A. urges the court to determine that he is unable to have a fair trial given the lost statement, and that the charge against himshould be stayed.

He asserts that given the loss of the statement, he is unable to bring his defence, and that a stay is the only remedy thatis reasonably capable of removing the prejudice. [15] He further asserts that the charge should be stayed prior to trial, as the prejudice caused by the loss of the statement would bemanifested or perpetuated through the conduct of the trial or its outcome. [16] The Crown’s position is that a determination on the appropriate remedy is premature and cannot be made until the Crown’sevidence has been heard at trial, or at the end of the trial. [17] The question of when the request for a stay of proceedings for a s. 7 Charter breach should be determined was addressed by theSupreme Court of Canada in R v La, (SCC), [1997] 2 SCR 680, 213 NR 1: The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudiceon 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 discretionas 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 othercourse of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserveon the application.

This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimizethe prejudice have borne fruit. (at para 27) [18] This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidence cases.

In R v B (DJ), [1993] OJ No1662, 16 CRR (2d) 381 the court said at p. 382: The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevantevidence, the nature of which would make it clear whether the prejudice was real or minimal. [19] This was also the approach taken by this court in the Inuktaluk and Ukkalianuk cases. [20] At this point, it is not clear to me that D.A.’s defence is prejudiced by the loss of the statement, and if it is prejudiced, the degree towhich it is prejudiced.

The defence appears to be that the complainant is not credible or reliable, which is a position that appearsavailable on the evidence and may be made apparent after the hearing of the evidence at trial. [21] According to Cst. Drouin’s notes, general report, and recollection of the statement, the complainant was highly intoxicated withlimited memory of events prior to the alleged incident, and no memory of the alleged assault.

[22] The report states that the complainant said she met an unidentified male on a red ATV near the health centre, and then woke upsometime later in a cabin alone with her pants and panties off. She said she thought she had been raped, but wasn’t sure. [23] The complainant appears to provide sparse detail, does not provide any evidence of the alleged sexual contact, and apparentlycould not identify the perpetrator.

The charge was only laid against D.A. in 2019, some three years after the statement was taken, whenthe results of the sexual assault kit taken the day after the alleged assault showed D.A.’s sperm to be on the complainant’s person. Atthis point, the police took a second statement from the complainant. [24] Although Cst. Drouin’s notes and report are not direct evidence of what the complainant said in the first statement, they provideinformation she may have reported. This information can be put to her at trial, and she may agree that she said what Cst.

Drouin said shesaid, and potential inconsistencies with her 2019 statement and trial evidence can be explored. Cst. Drouin may also testify about whatthe complainant said to her. [25] In the event that the complainant disagrees with what she was reported to have said in the first statement, the Crown is prepared toconcede that Cst.

Drouin’s notes and general report are an accurate reflection of what she said, as a means of ameliorating potentialprejudice to the accused. [26] In addition to attacking the credibility and reliability of the complainant, perhaps a further argument will be made by Defence attrial that the complainant consented to the sexual activity in question, or that if she did not, that the accused had an honest belief that shedid.

Again, it is unclear to me at this point that D.A. will be unable to bring these defences as a result of the lost statement, as they mayarise from the Crown evidence, and/or D.A. may testify at trial to raise them. [27] As stated by the Ontario Court of Appeal in the case R v Bradford, (ON CA), [2001] OJ No 107, [2001] 52OR (3d) 257, actual prejudice to the accused occurs when an accused is unable to put forward his defence due to the lost evidence andnot simply that the loss of the evidence makes putting forward the position more difficult. [28] A judicial stay is the most drastic remedy a criminal court can order and only appropriate in the clearest of cases.

It is appropriateprior to trial where the prejudice caused would be manifested or perpetuated through the conduct of the trial or its outcome and no otherremedy is reasonably capable of removing the prejudice.

I am not satisfied that this standard is made out in this case. [29] Although I am concerned about the loss of the evidence and the potential for prejudice, I find that I am unable at this juncture todetermine if there is any actual prejudice to the Defence because of the loss of the statement. [30] Considering the societal interest in having serious sex assault cases tried on their merits, and that absent demonstrated prejudice, Ifind that this is not the clearest of cases warranting a stay, I deny the Defence application at this time. [31] The application may be renewed during or at the conclusion of the trial, at which time the court will have sufficient evidence toassess 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 anddefence.

Dated at the City of Iqaluit this 18th day of January, 2021. ___________________ Justice C. Lyons Nunavut Court of Justice