R. v. M.
Ontario Court of Justice – General Division
Whitby, Ontario
Murphy J.
February 22, 1994.
R. v. M. is one of my earliest reported decisions but still illustrates well the use that must be made of the Canadian Charter of Rights and Freedoms to protect you when the Crown fails to disclose the evidence you need to properly answer the charges against you.
Application for an order for a stay of proceedings. The applicant was charged with two counts of indecent assault and two counts of unlawfully having sexual intercourse with the complainant without her consent. Four years after the commission of the alleged offences, the complainant gave a statement to the police in Toronto which was both recorded in writing and on video. Subsequently, she gave a statement to a Justice of the Peace and a further eight-page statement to the police in New Brunswick. At the preliminary inquiry, the statement the complainant gave to the police in N.B. was produced. But the statements she gave to the Justice of the Peace and the police in Toronto were not produced on the ground that they were unavailable. The applicant argued that the unavailability of the prior statements of the complainant seriously affected the ability of the defence to make full answer and defence thereby violating the applicant’s right to a fair trial. There was evidence before the court that there were some inconsistencies between the complainant’s statement given to the RCMP in N.B. and the evidence given at the preliminary inquiry.
HELD: Application allowed. The accused had satisfied the onus on him on an application for a stay of proceedings. Since there were some inconsistencies in the complainant’s statement made to the RCMP in N.B. and the evidence given at the preliminary inquiry, there might well have been inconsistencies between all three statements and the evidence at the preliminary inquiry. The fact that the complainant not only gave statements to the police but also to a Justice of the Peace, gave an air of reality to the complaint of the defence.
STATUTES, REGULATIONS AND RULES CITED:
Canadian Charter of Rights and Freedoms, 1982, ss. 7, 11(d).
Counsel:
R. Evans, for the Crown.
R. Rusonik, for the Accused.
1 MURPHY J. (orally):– This is an application brought by the accused to stay counts three and four of the indictment. The grounds of the application – the applicant’s right to a trial in accordance with the principles of fundamental justice including the right to make full answer and defence, as protected by s. 7 of the Canadian Charter of Rights and Freedoms and his right to a fair trial as protected by s. 11(d) of the Canadian Charter of Rights and Freedoms have been violated by the crown’s failure to preserve the initial two statements of the complainant M.H…
3 It is agreed that M.H. gave a written and video statement to the Metro Toronto Police Force at 41 Division in Scarborough when she was 21, and that would date the statements somewhere between January the 8th, 1990 and January the 7th, 1991. M.H. gave a statement to a justice of the peace at 1911 Eglinton Avenue, Scarborough, shortly after she gave the video and written statement to the Metro Police. She gave a further eight page statement to the R.C.M.P. in New Brunswick in 1992. The statement she gave to the R.C.M.P. is available and has been produced. The written and video statement she gave to the Metro Police and any statement that she may have given to the justice of the peace is not available.
4 At the preliminary inquiry M.H. testified that after she had given the various statements she was called by 41 Division and told that it was out of their jurisdiction and it was a matter for the Durham Region Police. The Durham Police did call and she went to Oshawa where she attended at the police station. She did not give a further statement to the Durham Police. She did testify that the Durham Police told her that a video tape of her had been sent to them.
THE DEFENCE POSITION:
5 The unavailability of the prior statement affects the defence ability to give full answer and defence. The unavailability of those statements undermine the defence’s ability to cross-examine the complainant to explore any inconsistencies that there might be in those statements with the complainant’s evidence at trial and at the preliminary inquiry, or the statement that she gave to the R.C.M.P. The missing statements are one and a half years earlier to the alleged events than the 1992 New Brunswick statement.
6 The credibility of the complainant is an issue of great importance in this trial. The defence argues that the failure to have those statements undermines its ability to properly cross-examine the complainant, and it therefore impinges upon the defence’s ability to attack the credibility of the complainant.
7 In summary, the lack of the statement seriously affects the defence’s ability to give full answer and defence; the missing statements are a live issue…
23 Instead it could have well supported the crown’s case against the accused. The crown argues there must be an air of reality that the missing evidence would in fact assist in a material way.
24 It is the crown’s position that that is what we have here is speculation that the missing statements might be of assistance to the defence, that there is no factual foundation for an air of reality. Without the contents of the missing documents it would be pure speculation to suggest the statements could assist the defence…
27 The principles of Stinchcombe required the crown to preserve and disclose their relevant witness statements.
28 An accused’s right to cross-examine is protected under s. 7 and 11(d) of the Charter. It is fundamental to providing a fair trial to an accused…
32 There is evidence before the court that there are some inconsistencies between the statements given to the R.C.M.P. in New Brunswick and the evidence given at the preliminary hearing.
33 As defence counsel has pointed out there is one rather unusual twist. In the evidence at the preliminary inquiry the complainant testified that after she gave the written statement to the police and a video statement, she then went to the justice of the peace on her own and gave a written statement. She had to come back later to sign that statement. The court cannot take any judicial notice of the effect of that procedure though it is unusual in this day and age the instructions from the Attorney General – it is unusual that the police would not lay the charges or arrange to have those charges laid rather than having the complainant attend at the justice of the peace. It may be because they had concluded that they did not have jurisdiction, but one would have thought they would have done that at the time that they took the actual statements and not have sent the complainant to the justice of the peace.
34 I therefore find that because there are some inconsistencies between the one statement that we have and the preliminary, there might well be inconsistencies with the other statement, the fact that the complainant not only gave statements to the police but to the justice of the peace, I find there is some factual foundation there is an air of reality to the complaint of the defence. There has been a violation of their right under s. 7 and 11(d) that would prevent full answer and defence…