R. v. LeBlanc, 2020 NSSC 121

SUPREME COURT OF Nova Scotia Citation: R. v. LeBlanc , 2020 NSSC 121 Date: 20200403 Docket: CRH 468456 Registry: Halifax Between: Her Majesty the Queen v. Anthony Peter LeBlanc Restriction on Publication: Criminal Code ss. 486.4 , 486.5 Canadian Charter of Rights and Freedoms , s 7,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 . D E C I S I O N Judge: The Honourable Justice Glen G. McDougall Heard: February 28, 2020, in Halifax, Nova Scotia Written Decision: April 03, 2020 C ounsel: Eric G. Taylor, Provincial Crown Kathryn C. Piché, Defence By the Court: [ 1 ] An “Amended” Notice of Charter Application was filed on behalf of the accused – Anthony Peter LeBlanc – on January 29, 2020. [ 2 ] Counsel for Mr. LeBlanc asks for a Stay of Proceedings pursuant to s- s. 24(1) of the Canadian Charter of Rights and Freedoms alleging an infringement of her client’s

Section 7 rights. [ 3 ] Alternatively, if a Stay of Proceedings (which would effectively end the trial) is not granted, then the Court is asked to exclude the evidence captured in a covert recording made by the complainant of a conversation she and the accused had on August 9, 2013. Factual Narrative [ 4 ] The complainant recorded the conversation on her cell phone and provided it to the, then, lead investigator on the file – Detective Constable Patricia Snair. [ 5 ] Officer Snair was informed of the covert recording by the complainant’s mother on August 10, 2013.

Officer Snair then called the complainant on her cell phone and arranged to meet with her the following day to listen to the recorded conversation at the home of one of the complainant’s friends. [ 6 ] After listening to the recorded conversation that was stored on the cell phone used to capture it, Officer Snair then conducted a brief interview of the complainant which she audio-recorded on a hand-held digital device that she carried with her for that purpose.

Officer Snair estimated that the brief interview of the complainant would have only lasted approximately two minutes. She wanted the complainant to explain how she made the voice recording and to confirm that she had not been asked by the police nor had she been directed by them in any way to do so. [ 7 ] It is this brief recorded interview that has gone missing.

Notes of the interview were made by the Investigating Officer and included in the report she made of the various steps taken during the course of the investigation along with any other evidence that had been gathered. [ 8 ] Officer Snair was extensively questioned on direct examination by Crown counsel about her role in the investigation up until the time she was re-assigned to another criminal investitive

section of Halifax Regional Police. Even though she was transferred from the Sexual Assault Investigation Team (S.A.I.T.), Officer Snair maintained physical possession of the file and the digital audio-recording device she had used to record the interview with the complainant. A new hand-held audio-recording device was issued to the officer when she transferred out of the S.A.I.T.

Unit to take on her new responsibilities. [ 9 ] Officer Snair could not recall when she made her notes of the recorded interview with the complainant but based on her usual practice she believed she likely did it the same day or shortly thereafter. Regardless of when she made the notes, they were added to the running narrative of the investigation and up-loaded to the centralized computer system in use by Halifax Regional Police.

Officer Snair referred to it as the Versadex system. [ 10 ] Officer Snair did not immediately take possession of the complainant’s cell phone on which she had recorded the conversation with the accused. The complainant was reluctant to be without the cell phone as the weekend was approaching and the police officer would have need of it for several days in order to have Halifax Regional Police Tech Crime people make a copy of the recorded conversation.

Officer Snair was given possession of the cell phone several days later whereupon it was sent to Tech Crime to download the covertly recorded conversation that the complainant had with the accused. [ 11 ] Officer Snair compared the copy made with what she had initially listened to on the complainant’s cell phone. She was satisfied that the copy accurately captured the original recording. Notes of the covert recording were made by the officer and added to the running narrative she was maintaining on the Versadex system.

Officer Snair testified that she tried to accurately record in her notes what she had learned from the various interviews she conducted of the complainant, the complainant’s mother and other witnesses but acknowledged both on direct examination and on cross-examination by Defence counsel, that she was not always 100% accurate. [ 12 ] After Officer Snair was transferred from the S.A.I.T. Unit, the investigation of the matter was handed over to Constable Nancy Wagner.

On several occasions the decision to proceed with charges against the accused had to be put on hold when the complainant expressed reluctance to go ahead with the charges. Eventually the decision was made to proceed. That led to Cst. Wagner requesting that she be sent a copy of the audio-recorded interview that is now the focus of this hearing. [ 13 ] Officer Snair, although recovering from a recent surgery, attended at her office where she had kept the files pertaining to the investigation along with the hand-held digital recording device she used when she was a member of S.A.I.T.

Officer Snair testified that she listened to the first few seconds of what she thought was the recording that Cst. Wagner was looking for. It turned out to be another recording the officer made of a statement she received from the complainant in a totally unrelated matter. [ 14 ] After providing the incorrect recording, Officer Snair then deleted it from the digital recorder. It was not until the trial was underway that the brief audio-recorded interview was discovered missing. It was first flagged by Crown counsel – Mr. Taylor – during direct examination of the complainant on “Day 4” of the trial.

Unfortunately, what had been provided to the Crown and disclosed to the Defence was not what it was thought to be. By then the Court had heard from two other witnesses – Dr.

Sandhya Parkash – a medical geneticist with the IWK Hospital and Assistant Professor at Dalhousie Medical School, who had diagnosed the complainant with a genetic disorder known as 22q microdeletion syndrome; the other witness whose testimony had been completed was the complainant’s mother. [ 15 ] As soon as the problem was identified, an adjournment was requested by the Crown to attempt to track down the audio- recording so it could be provided to both the Crown and Defence counsel. Despite all efforts, the audio-recording could not be found.

The trial continued and upon completion of the complainant’s testimony she was cautioned not to speak to anyone about it, other than perhaps any counsellor or therapist she might be seeing. This was done to avoid the possibility of having her testimony tainted should she have to be recalled to the stand. This was thought to be important especially if the Defence decided to advance an application under the Charter as a result of the missing evidence. [ 16 ] The trial proceeded with the calling of the other three Halifax Regional Police officers who were directly involved with the investigation.

The three police officers were Constable Joseph Farrow, Detective Constable Patricia Snair and retired Constable Nancy Wagner. [ 17 ] Detective Constable Patricia Snair was extensively questioned in regard to her audio-recorded interview of the complainant – the one that is now missing and likely lost forever. The officer explained why she decided to conduct the interview. She testified that it was done in order to have the complainant explain how she went about covertly recording the conversation she had with the accused and to establish and confirm that she had not been instructed by police to do so.

Officer Snair knew from her training and experience that a warrant would have had to have been obtained in advance if the complainant was going to be used as an agent to aid the police in their investigation. [ 18 ] As stated previously, Officer Snair made notes of the rather brief interview upon listening to the audio-recording again after returning to her office. She could not remember if she made her notes later, on the day the recording was made, or shortly thereafter.

Regardless of when the notes were made and entered on the Versadex computer system, they were based on what the officer listened to from her hand-held digital recording device. They were not made from memory based on notes made while the interview was being conducted. [ 19 ] It was indicated during direct examination that Officer Snair did not capture verbatim what she heard during witness interviews

or when taking video/audio recorded statements. In updating her Investigator’s Report, she attempted to capture what she had learnedfrom speaking to persons involved in the investigation. She then added it to the narrative in such a way that it would make sense toanyone who might later need to read it. [20] During cross-examination, Defence counsel directed the officer to various notes she made during the course of theinvestigation that did not accurately reflect what was captured on the audio or video recording. The officer’s notes sometimes left thingsout entirely.

But, regardless of this, the original recordings were preserved and made available to the Defence with the one exception,that being the audio-recording of the interview made at the time the complainant first shared with Officer Snair, the covert recording shehad made of her conversation with the accused. All that remains of that brief interview are the notes the officer made sometime shortlyafter the event. [21] It should be made clear that no one is suggesting there was an intentional effort to suppress relevant evidence.

Indeed, Defencecounsel made it perfectly clear in her submissions to the Court that abuse of process was not being argued. What is being argued is: doesthe inadvertent loss of the audio-recorded statement of the complainant lead to a finding of unacceptable negligence which, in turn,prevents the accused from making full answer and defence.

Discussion [22] The fact that a single loss of evidence will not necessarily lead to a finding of unacceptable negligence is implied by themajority reasons in R v La, (SCC), [1997] 2 SCR 680, still the leading case on “lost evidence”: 20 This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right ofdisclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant.

Yet despite the bestefforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle inStinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown’s explanation satisfies the trial judge that the evidencehas not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unableto satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of theCharter.

Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that anaccused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose. 21 In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstancessurrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonablesteps in the circumstances to preserve the evidence for disclosure.

One circumstance that must be considered is the relevance that theevidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty todisclose if the conduct of the police is reasonable.

But as the relevance of the evidence increases, so does the degree of care for itspreservation that is expected of the police. [23] The principles governing “lost evidence” cases were summarized by the Court of Appeal in R v FCB, 2000 NSCA 35, [2000]NSJ No 53: 10 The basic principles applicable to the analysis of all three grounds of appeal raised in this case were summarized by Sopinka, J. inR. v. La, supra, commencing at para. 16. Those principles derived from R. v. Stinchcombe (No.1), (SCC), [1991] 3S.C.R. 326; R. v. Egger, (SCC), [1993] 2 S.C.R. 451; R. v. Stinchcombe (No. 2), supra; R. v.

Chapman, (SCC), [1995] 1 S.C.R. 727; R. v. O'Connor, supra; and, R. v. Carosella , supra, and further developed in La, are:

(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 itspossession, 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 todisclose has not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstancessurrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police actedreasonably 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 theaccused'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 forexample, the conduct leading to the destruction of 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 isone 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 extraordinarycase, 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 itimpairs 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 applicationafter hearing all of the evidence. [24] I would also note the Court of Appeal’s remarks in R v Boliver, 2014 NSCA 99, where the appellant alleged that the

SummaryConviction Appeal Court erred in not disturbing a trial judge’s decision on lost evidence: [32] Similarly, the “lost evidence” from the video that operates simultaneously with deployment of the taser did not materially affectMr. Boliver’s ability to defend the charges. There was ample other eye witness testimony available to the trial judge. As the ManitobaCourt of Appeal remarked in R. v. Kociuk (R.J.), 2011 MBCA 85, aff’d 2012 SCC 15: 21. The law with respect to a lost evidence motion is uncontroversial.

Not every loss of relevant evidence will necessarily infringe onan accused’s right to make full answer and defence. As recognized by the Supreme Court of Canada in La, “owing to the frailties ofhuman nature, evidence will occasionally be lost” (at para. 20). When evidence is lost or missing, the Crown has an obligation toexplain that loss and satisfy the trial judge that it was not due to unacceptable negligence or an abuse of process.

Where the Crown hassatisfactorily explained the loss, the onus shifts to the accused who, in order to be successful, “must establish actual prejudice to his orher right to make full answer and defence” (at para. 25). Sopinka J., for the majority, also explained in La that the principalconsideration, in relation to whether the explanation of the Crown is satisfactory, “is whether the Crown or the police (as the case maybe) took reasonable steps in the circumstances to preserve the evidence” (at para. 21). [Emphasis in Boliver] Also see: R. v. Bradford (2001), (ON CA), 139 O.A.C. 341 (Ont.

C.A.) at ¶ 8, leave to appeal ref’d, [2001]S.C.C.A. No. 131, and R. v. Dulude (2004), (ON CA), 189 O.A.C. 323 (Ont. C.A.), beginning at ¶ 25. [33] The trial judge recounted the efforts of the police to retrieve the taser-related video. He was satisfied with their efforts. Therewas no “unacceptable negligence” by police. The trial judge was also satisfied that Mr. Boliver was not prejudiced by the loss of thevideo – which may have been unhelpful to Mr. Boliver in any event. There were numerous witnesses present when Mr. Boliver wastasered. Mr.

Boliver was not prevented from making full answer and defence. [25] The lost video evidence was described by the trial judge (2012 NSPC 33, see paras. 69 - 88), who was satisfied that it arosefrom a technical error in the operation of the equipment and the downloading of the video capture. The trial judge had been “unable toconclude that this is indicative of any mala fides on the part of the Deputy Chief, or any members of the … force.

Nor am I persuadedthat the conduct or omission here rises to the level of recklessness, or unacceptable negligence in the sense intended by the SupremeCourt of Canada in La…), (see para. 82 of the trial judge’s decision in Boliver (2012 NSPC 33)) [26] In this case, the key question is whether the inadvertent loss of a single supplemental recording – in circumstances where thepolice and Crown mistakenly believed that the recording was still in their possession – amounted to unacceptable negligence.

JusticeCampbell discussed the concept of unacceptable negligence in R v JB, 2015 NSSC 126, where the accused was charged with historicsexual offences. He sought a stay of proceedings, arguing that his defence was prejudiced because the police could not locate a writtenstatement by the complainant from 1987, and a 1997 video-taped statement. Justice Campbell said: [92] Unacceptable negligence is an interest [sic] turn of phrase. The familiar legal term gross negligence is not used.

But, it wouldappear as though basic negligence, falling below the reasonable standard of a police force, will not be sufficient either. In R. v. Chaplin,the court provided some explanation. The first consideration is whether the Crown or the police took reasonable steps to preserve theevidence for disclosure. The relevance that the information was seen as having at the time has to be taken into account.

Obviously, thepolice are not required to preserve every piece of information that comes into their hands in every investigation that they do, on the offchance that it might at some future time be relevant to that matter or to something else. Even if the information is relevant the conduct ofthe police has to be assessed on the standard of reasonableness. As the relevance of the evidence increases, so does the degree of carethat is expected of the police with regard to its preservation. Unacceptable negligence involves a contextual sliding scale.

If the actions ofthe police violate the fundamental principles that underlie the community’s sense of decency and fair play, the conduct will amount to anabuse of process. [93] Even if there is no finding of negligence an abuse of process can be found when the loss of evidence was so prejudicial to theaccused person that his or her right to full answer and defence has been fundamentally impaired. That has been described by the SupremeCourt of Canada as an extraordinary situation.

But, even if the police actions are entirely reasonable a person should not be deprived ofthe right to a fundamentally fair trial because evidence has been lost or destroyed. [94] There are a number of factors that go into determining the degree of prejudice to the accused person’s right to make full answerand defense. The court in assessing those factors has to consider not just what’s missing but what evidence is actually there.

Where themissing information is a statement the relevant factors could include, whether a missing video-taped statement has been transcribedverbatim or otherwise, whether the officer who took the statement or made the recording is available, whether the complainant madeother statements that could be used to assess credibility, whether the complainant at the time of trial has an independent recollection ofthe events, and whether there are discrepancies in the evidence at trial and the complainant’s other statements. [95] The possibility of discrepancies which tend to support or accentuate inconsistencies falls “far short” of establishing a serousimpairment.

There is a potential that in any two statements there will be discrepancies in details that might assist the defence inestablishing a lack of credibility or reliability in the testimony. That isn’t enough. If it were, every lost statement would justify a stay. [96] The fact that lost evidence could have provided additional information relevant to the defense was not enough to justify a stay inR. v. Scott. The court has to assess the impact of the lost evidence in the context of all of the evidence and in the context of the positiontaken by the defence.

Actual prejudice occurs when the accused person in unable to put forward his or her defense due to the lostevidence not merely that putting forward the defense is made more difficult. [27] Justice Campbell concluded that the loss of materials was “unfortunate” but was not unacceptable negligence, and did not“reach a standard by which a stay should be granted to preserve the integrity of the system. Accused people have a right to fair trial not toa perfect one. The loss of material did not deprive J.B. of his right to a fundamentally fair trial” (J.B. at para 47). There was “no evidence

whatsoever here of intentional destruction of evidence to thwart disclosure. There wasn’t any evidence of a cavalier approach to the retention of evidence” ( J.B. at para. 98 ). He went on to review the evidence as to the circumstances in which the loss of evidence occurred. While the police had appropriate filing procedures in place, the file was erroneously purged eight years early due to human error. Justice Campbell said, “[a]s the Crown noted, this was not a case of a file just being thrown under someone’s desk and lost.

What happened here was an error but does not amount to unacceptable negligence” ( J.B. at paras. 99 – 105 ). [ 28 ] Based on the facts of the present case, the same can be said here. The evidence that was lost would certainly have been identified as relevant by the police and the Crown. But, the evidence indicates that the error was a one-time slip that was not discovered until later. The Crown believed that the second statement still existed and had been disclosed, and it was only when the electronic file was opened that it was discovered that the statement had been lost.

Absent any evidence of failure to comply with appropriate procedures, it seems to me that this cannot be called unacceptable negligence. Absent unacceptable negligence, the duty to disclose has not been breached. I am satisfied that reasonable efforts were made to preserve the evidence in this case. [ 29 ] In J.B. , Justice Campbell went on to consider the seriousness of the error, concluding that “[t]he impact on the ability to mount a defence was not such that it would amount to an abuse of process” (J.B. at para. 106 ).

He continued: [107] M.B. was asked to speculate on how similar his in court statement would have been to the 1997 interview. Unless he had a spectacularly good recollection of the 1997 interview to compare it to his in court testimony he wouldn’t really be capable of making a comparison that made much sense.

If he did have such a recollection, one might assume that the two statements would be extremely similar. [108] The argument on behalf of J.B. was that the defence was deprived of the opportunity to put to M.B. the inconsistencies between his testimony and the 1997 interview and between his testimony and the 1987 interview with Cst. Murray. As to the former, there are notes taken by Cst. Head.

Those notes are not complete but they did give counsel and opportunity to cross examine M.B. on the number of incidents he reported, the issue of whether oral sex took place in the first incident, the absence of any reference to the fishing trip incident, and the absence of any reference to the incident with the family dog. [109] As to the latter, it could be presumed that there might be some inconsistencies.

Counsel would not have had a chance to cross examine on those. [110] It is significant however that while the 1997 tape and the 1987 notes were lost, there was available the notes from 1997, M.B.’s interview given in this investigation in 2011, M.B.’s preliminary inquiry testimony and his evidence at trial. With regard to those various statements that are available, the inconsistencies that could be pointed out have been noted. There just aren’t that many significant ones. For purposes of the voir dire alone, that is a significant piece of information.

M.B. has not given substantially different stories that would suggest that his 1987 statement or the 1997 notes would open up a series of opportunities for the defence. [111] J.B. was able to put forward his defence. He has not been deprived of the full opportunity to do that. Ruling [ 30 ] The inadvertent loss of the audio-recorded interview of the complainant by Detective Constable Patricia Snair is unfortunate but is does not amount to unacceptable negligence. I accept the estimate of the length of that interview as testified to by Officer Snair.

It was brief – about two minutes in duration. [ 31 ] I am also satisfied based on the evidence of Officer Snair and that of the complainant that the purpose for the interview was to establish two basic elements: (

i) To have the complainant explain how she went about making the covert recording of her conversation with the accused; and (ii) To have the complainant confirm that she was acting on her own and was not following police instructions when the recording was made with the use of her cell phone. [ 32 ] I am satisfied with the explanation provided by the Crown as to the unfortunate circumstances leading to the loss of the complainant’s audio-recorded interview by the investigating officer. [ 33 ] The Defence had ample opportunity to cross-examine not only the officer, but also the complainant based on the notes made by the officer shortly after she listened to the recorded interview in her office.

Defence counsel was also given the opportunity to further cross-examine the complainant by having her recalled for that purpose. That was the reason the complainant was cautioned not to discuss her testimony with anyone save for any counsellor or therapist she might be seeing. This opportunity was not pursued. [ 34 ] The final result is that there is no breach of the defendant’s s. 7 Charter rights. Nor, has his ability to make full answer and defence been compromised. [ 35 ] The relief sought by the Defence is denied.

Neither, a Stay of Proceedings nor a declaration that the evidence contained in the covert recording of the conversation between the complainant and the accused be excluded is warranted. [ 36 ] It is now up to the Defence to decide if they wish to call evidence. Regardless what that decision might be, new dates will have to be set for the completion of the trial. Given the COVID-19 pandemic, the Nova Scotia Supreme Court has adopted an essential services model. Only emergency matters are being heard.

In order to retain jurisdiction and to guarantee the accused’s attendance in court, the new dates to continue the trial will have to be done by way of teleconference call, on the record, prior to April 14 th , 2020 (i.e., the first of three days previously scheduled for this purpose). [ 37 ] The Honourable Justice Patrick Duncan will be dealing with this and other criminal matters deemed urgent during the week of April 6 – 10, 2020. Expect to receive email communication from Law Courts staff to set the day and time for this appearance.

[ 38 ] In the meantime, my Judicial Assistant, Adrienne Kent, will, if she has not already done so, contact you by email with a list of my available dates to continue the trial. McDougall, J.