R. v. T.G.S., 2009 ABQB 187

• Judge: Binder, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 24, 2009
• Citations: 2009 ABQB 187;(2009), 471 A.R. 51 (QB)

R. v. T.G.S. (2009), 471 A.R. 51 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AP.013

Her Majesty the Queen (Crown) v. T.G.S. (accused)

(070757091Q1; 2009 ABQB 187)

Indexed As: R. v. T.G.S.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Binder, J.

March 26, 2009.

Summary:

The accused was charged with sexual assault and touching a person under 14 years of age for a sexual purpose. The accused applied for a stay of the charges on the basis of lost and destroyed disclosure.

The Alberta Court of Queen's Bench dismissed the application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In 1996, P.L. complained to police that she had been sexually assaulted by the accused - The complaint was investigated by the Edmonton Police Service (EPS), but charges were never laid - In 2006, the accused was charged with two counts of second degree murder in relation to the death of two prostitutes - The RCMP decided to recommence the investigation into P.L.'s 1996 complaint and the accused was charged in 2007 with sexual assault and touching a person under 14 years of age for a sexual purpose - The accused applied for a stay of the charges on the basis of lost and destroyed disclosure - The lost or destroyed evidence included videotaped statements, handwritten statements and certain officers' handwritten notes and audio recordings of statements - The Alberta Court of Queen's Bench, per Binder, J., held that "there is no possible explanation as to what happened to the missing material which would not be properly characterized as unacceptable negligence. The materials were clearly very relevant to an investigation of sexual assault on a child, and it was entirely foreseeable that the investigation may well have been revived at some point in the future. There is no suggestion in the evidence of the EPS officers that there was no duty to preserve the material. Even assuming that Det. Dealy was justified in holding on to the materials for some portion of time, he had an obligation to ensure that the materials arrived at the appropriate repository. I am satisfied that if they had, that fact would have been recorded. There is no satisfactory explanation for the loss. Consequently, I am satisfied that a breach of s. 7 occurred" - See paragraph 45.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Alberta Court of Queen's Bench reiterated the factors that had emerged from the cases in deciding whether to grant a stay on account of lost evidence including: (1) whether the investigating officers who took the statement were available for questioning; (2) whether the complainant made other statements prior to trial that the defence could use to attack her credibility; (3) whether the Crown conceded that proposed substitute evidence was a statement of the complainant and might be used for the purposes of cross-examination of the complainant; (4) whether the statements that did exist appear to contain the same amount of detail as the lost statement; (5) the extent of the complainant's present ability to recall the contents of the earlier statements; (6) the complainant's present ability to recall the details surrounding the various alleged incidents of abuse; (7) any apparent or potential inconsistencies in the complainant's trial testimony or between her other statements and her evidence at the preliminary hearing; (8) whether the accused was made aware of the contents of the lost evidence before its destruction or disappearance; (9) whether the Crown gave any undertaking to the accused at the time that matters would not proceed with the result that the accused did not retain his own records; and (10) what other witnesses had to say at the time in support or contradiction of the complainant's allegations - See paragraph 43.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - In 1996, P.L. complained to police that she had been sexually assaulted by the accused - The complaint was investigated by the Edmonton Police Service (EPS), but charges were never laid - In 2006, the accused was charged with two counts of second degree murder in relation to the death of two prostitutes - The RCMP decided to recommence the investigation into P.L.'s 1996 complaint and the accused was charged in 2007 with sexual assault and touching a person under 14 years of age for a sexual purpose - The accused applied for a stay of the charges on the basis of lost and destroyed disclosure - The lost or destroyed evidence included videotaped statements, handwritten statements and certain officers' handwritten notes and audio recordings of statements - The Alberta Court of Queen's Bench held that the accused's s. 7 Charter right to disclosure had been violated - However, while the task of the defence might be made more difficult because of the missing notes, the audio/videotape and other material, the administration of justice was better served in this case by permitting the trial to continue rather than by staying the proceedings and thereby effectively acquitting the accused - Such a stay would in fact override the manifest societal interest in the effective prosecution of criminal charges - See paragraphs 46 to 56.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Queen's Bench reiterated the basic principles when considering whether the Crown was relieved of the duty of disclosure when it had relevant evidence in its possession but then lost it: (1) the Crown's duty to disclose all relevant information in its possession gave rise to an obligation to preserve relevant evidence; (2) when the prosecution had lost evidence that should have been disclosed, the Crown had a duty to explain what happened to it; (3) if the explanation satisfied the trial judge that the evidence had not been destroyed or lost owing to unacceptable negligence, the duty to disclose had not been breached; (4) if the Crown was unable to satisfy the judge, then the Crown failed to meet its disclosure obligations and s. 7 of the Charter was breached; and (5) such a failure might also suggest that an abuse of process had occurred, but an accused need not establish abuse of process in order to establish that the Crown failed to meet its s. 7 obligation to disclose - See paragraph 37.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Queen's Bench stated that "The Court, in determining whether the Crown's explanation [for lost evidence] is satisfactory, should analyze the circumstances surrounding the loss of the evidence to determine whether the police or the Crown took reasonable steps to preserve the evidence for disclosure. In this regard, the court must consider: the relevance that the evidence was perceived to have at the time; the fact that the police cannot be expected to preserve everything on the chance that it will be relevant in the future; whether or not the conduct of the police was reasonable; that as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police." - See paragraph 38.

Cases Noticed:

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 22].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 22].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 31].

R. v. J.G.B. (2001), 139 O.A.C. 341; 52 O.R.(3d) 257 (C.A.), leave to appeal denied [2001] S.C.C.A. No. 131, refd to. [para. 35].

R. v. Haug (D.W.) (2008), 307 Sask.R. 1; 417 W.A.C. 1; 229 C.C.C.(3d) 132; 2008 SKCA 23, refd to. [para. 35].

R. v. F.C.B. (2000), 182 N.S.R.(2d) 215; 563 A.P.R. 215; 142 C.C.C.(3d) 540; 2000 NSCA 35, refd to. [para. 35].

R. v. Knox (K.L.) (2006), 211 O.A.C. 164; 2006 CarswellOnt 3042 (C.A.), refd to. [para. 35].

R. v. Traub (R.E.) (2008), 458 A.R. 197; 2008 CarswellAlta 1365; 2008 ABQB 604, refd to. [para. 35].

R. v. Grimes (D.W.) (1998), 209 A.R. 360; 160 W.A.C. 360; 1998 ABCA 9, refd to. [para. 35].

R. v. Thomas (A.F.) (2002), 177 B.C.A.C. 183; 291 W.A.C. 183; 2002 BCCA 612, refd to. [para. 35].

R. v. Sobieh (E.I.), [2006] A.R. Uned. 57; 2006 CarswellAlta 523; 2006 ABCA 140, refd to. [para. 35].

R. v. Buyck (R.K.) (2007), 245 B.C.A.C. 253; 405 W.A.C. 253; 2007 YKCA 11, refd to. [para. 35].

R. v. Bero (C.) (2000), 137 O.A.C. 336; 151 C.C.C.(3d) 545 (C.A.), refd to. [para. 35].

R. v. Nero (N.), [2007] O.T.C. Uned. 228; 2007 CanLII 17039 (Sup. Ct.), refd to. [para. 35].

R. v. R.A.D. (1993), 25 B.C.A.C. 206; 43 W.A.C. 206; 1993 CarswellBC 1146 (C.A.), refd to. [para. 35].

R. v. Leduc (J.) (2003), 174 O.A.C. 242; 176 C.C.C.(3d) 321 (C.A.), leave to appeal denied [2003] S.C.C.A. No. 411, refd to. [para. 40].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 41].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 49].

Counsel:

Marilena Carminati, for the Crown;

Robert Shaigec, for the accused.

This application was heard on March 24, 2009, by Binder, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for ruling on March 26, 2009.