Imran's Case — Submissions — Lost Evidence

PART I — STATEMENT OF THE CASE

1. By a private information sworn 25 May 1998, the Applicant was charged with committing an assault against the complainant. That information was withdrawn by the Crown on 14 January 1999. By an information sworn 11 December 1998, the Applicant was charged with assault (5x) and threatening death (2x). He was committed to trial on 23 December 1999.
2. The Applicant seeks a stay of the proceedings before this Honourable Court pursuant to sections 7 and 24(1) of the Charter because the Applicant’s ability to make full answer and defence has been irreparably prejudiced by the loss of material disclosure

PART II — SUMMARY THE FACTS

3. The only witnesses to the alleged offences are the complainant and the Applicant. Credibility is the primary trial issue. Neither the Applicant nor the complainant have a criminal record.
Affidavit Re History of Matter, page 1
4. The following table, reproduced from the supporting affidavit, contains the facts material to this Application:

DATE	MATERIAL EVENT
3 September 1997	Auto Accident: The complainant and the Applicant were arguing inside a vehicle the Applicant was driving. The complainant jumps from the vehicle, and is run over by the vehicle. She suffers a broken pelvis, and spends approximately 21 days in the hospital. Police Investigate: A call is placed to 911 by an unknown person. P.C. Gille S** investigated the accident. Due to the seriousness of the injuries, he interviews the Applicant and the complainant. Attached as Exhibit "A" is a copy of Officer S’s accident field notes. These notes contain Officer S’s interview with the Applicant. Applicant’s statement: The Applicant informed Officer S (i) that the Applicant and the complainant were arguing about money, (ii) that the complainant punched the Applicant in the face, and (iii) that the complainant then jumped from the vehicle. Officer S** noted that the Applicant had dried blood on his shirt and in his right nostril.
3-13 September 1997	Complainant’s Statement: Officer S** subsequently interviewed the complainant about the accident and her injuries. He also questioned her about the information received from the Applicant. The complainant’s nephew, Mark A., acted as interpreter for the complainant. Investigation Concluded: Officer S received no information from the complainant that would justify a laying a charge against the Applicant. Officer S** concluded his investigation without laying any charges.
9 March 1998	Complainant leaves Applicant: The complainant leaves the Applicant with Police Constable Daniel C**** as an escort.
25 May 1998	Private Information Sworn: On 25 May 1998, the complainant attended at the Office of the Justice of the Peace. She swore an information alleging assault against her by the Applicant on 15 August 1997. A summons was issued compelling the Applicant to appear on 6 July 1998. Attached as Exhibit "B" is a copy of that private information.
17 June 1998	Officer Assigned: By 17 June 1998, Detective Constable Michael M**** had been assigned to the Applicant’s matter as the officer-in-charge. Attached as Exhibit "C" is a copy of the police synopsis regarding the assault, which was prepared on 17 June 1998.
29 June 1998	Disclosure Requested: The Applicant’s counsel requested disclosure.
6 July 1998	1st Court Date: The Applicant was waiting for initial disclosure. The Crown did not have a brief. The matter was adjourned to 13 August 1998.
13 August 1998	2nd Court Date: The Applicant was waiting for initial disclosure. The Crown did not have a brief. The matter was adjourned to 15 September 1998.
4 September 1998	Disclosure Received: The Applicant’s counsel received the initial disclosure from the Crown’s office. The disclosure does not include, however, any statement taken from the complainant by the police.
15 September 1998	3rd Court Date: A pre-trial had been scheduled for 21 September 1998. The matter was adjourned to 7 October 1998.
21 September 1998	First Pre-trial ─ Cancelled: The Crown could not locate its brief. The pre-trial was cancelled.
7 October 1998	4th Court Date: The Crown indicated that "the officer" is going to speak to the complainant and that further disclosure may be forthcoming. The matter was adjourned to 5 November 1998.
5 November 1998	5th Court Date: The Applicant is still waiting for further disclosure. The matter is adjourned to 8 December 1998.
5 December 1998	Complainant Interviewed: Officer M** video-tapes the complainant’s statement. As Officer M explained later ─ see Exhibit "E" ─ he was unable to take the statement earlier because he could not find an interpreter to provide services without remuneration. Further Offences Alleged: The complainant discloses that, in addition to the offence alleged regarding the 15-August-1997 incident, offences were also committed on 2 September 1997, on 3 September 1997, during October 1997, and on 9 March 1998, the day Officer C** escorted her out of the apartment. These allegations are summarized in the synopsis attached as Exhibit "D."
8 December 1998	6th Court Date: The Applicant was still waiting for disclosure regarding the complainant’s statement to the police. The matter was adjourned to 14 January 1999.
9 December 1998	Additional Charges: The Applicant was charged with assault (5x) and threatening (2x).
14 January 1999	7th Court Date: The original private information was withdrawn. The Applicant was still waiting for disclosure regarding the complainant’s statement to the police. The matter was adjourned to 12 February 1999.
11 February 1999	Further Disclosure Received: The Applicant’s counsel receives further disclosure. The disclosure does not include a copy of the video. The Crown subsequently agrees to provide a copy of the video.
12 February 1999	8th Court Date: The Applicant is still waiting for a copy of the video tape of the complainant’s statement to the police. The Crown indicates that the tape has not yet arrived. The matter is adjourned to 10 March 1999.
10 March 1999	9th Court Date: The Applicant is still waiting for a copy of the video tape of the complainant’s statement to the police. The Crown indicates that the tape has not yet arrived. The matter is adjourned to 26 March 1999.
26 March 1999	10th Court Date: The matter is adjourned to 16 April 1999.
13 April 1999	Pre-trial Conducted: The Applicant’s counsel requests, inter alia, the notes from the police officers who investigated the accident which occurred on 3 September 1997 (on 13 April 1999, the names of the police officers were not known). That request was confirmed in paragraph 3 of the 15-April-1999 letter from the Applicant’s counsel to the Crown. That letter is attached as Exhibit "E."
16 April 1999	11th Court Date: The trial is scheduled for 11 June 1999.
11 June 1999	12th Court Date ─ Trial: The trial is adjourned due to disclosure problems. The matter is adjourned to 9 July 1999. Officer S’s Notes: Officer M** informs the Applicant’s counsel that Officer S*’s notes are unavailable, as they were subject to an Freedom of Information Act* inquiry.
9 July 1999	13th Court Date: The Applicant’s counsel is still waiting, inter alia, for a copy of Officer S****’s notes regarding the 3-September-1999 incident. The matter is adjourned to 5 August 1999.
23 July 1999	Defence Letter to Crown: The Applicant’s counsel sends the assigned Crown a letter which requests, inter alia, the notes of Officer S****. Counsel also highlights the importance of this disclosure to the Applicant. That letter is attached as Exhibit "E."
3 August 1999	Disclosure Lost: Assistant Crown Attorney Ms Joanne M** informs the Applicant’s counsel that Officer S’s notes and Officer C**’s notes are lost.
5 August 1999	14th Court Date: The matter is adjourned to 21 September 1999 for a judicial pre-trial.
21 September 1999	15th Court Date: A preliminary hearing is scheduled for 16 and 17 December 1999.
17 December 1999	Preliminary Hearing: Officer S** testified that he did in fact interview the complainant on 3 September 1997, that his notes are lost, and that he cannot recall the specifics of the statement provided by the complainant. The complainant’s nephew also testified. He confirmed that he acted as interpreter between Officer S and the complainant, but that he cannot remember what was said. Officer C did not testify, but did inform the Applicant’s counsel, Craig Penney, and Officer M** that his notes were lost, and that he had no recollection of the events on 9 March 1999 involving the complainant and the Applicant.

PART III — ISSUES AND THE LAW

A. Legal Overview

(i) Duty to Disclose – Charter, s. 7

As a corollary to the right to make full answer and defence, the Applicant is entitled to full disclosure of any information or documentation in the possession or control of the Crown and the Police that is likely relevant to his outstanding charges. He is also entitled to disclosure of information in the hands of the Crown that, although not in furtherance of the Crown’s case, may be useful to the defence.

R. v. La (1997), 116 C.C.C. (3d) 97 at 106 (S.C.C.)

R. v. Carosella (1997), 112 C.C.C. (3d) 288 at 310-311 (S.C.C.)

The obligation on the Crown to disclose all information likely relevant to an accused’s case imposes a duty on the Crown and the Police to preserve relevant evidence.

R. v. Mattingly (1995), 40 C.R. (4^th) 376 (Ont.C.A.)

(ii) Failure to Disclose – Unacceptable Negligence (presumed prejudice)

Where the Crown is unable to comply with its disclosure obligations because evidence has been lost through unacceptable negligence, an accused’s rights under sections 7 and 11(d) of the Charter have been infringed. Actual prejudice as a result of the loss of the evidence need not be shown. Furthermore, the Crown has the onus of demonstrating that the loss of the disclosure did not amount to unacceptable negligence.

R. v. La, supra, at p.107

If the Court does not find that the evidence was lost through unacceptable negligence, the Court must still examine the following two issues: firstly, whether the accused can demonstrate actual prejudice to his ability to make full answer and defence, and, secondly, whether the accused can demonstrate an "air of reality" to that prejudice.

(ii) Failure to Disclose – Prejudicing Ability to Make Full Answer and Defence

If an accused establishes that there is an air of reality to the position that the missing evidence would in fact materially assist the accused, he has demonstrated that the loss of the evidence has "prejudiced" his right to make full answer and defence.

R. v. Macdonnell (1997), 114 C.C.C. (3d) 145 (S.C.C.) at 150

R. v. Mattingly (1995), 40 C.R. (4^th) 376 (Ont.C.A.)

R. v. Daye [1999] O.J. No. 1994 (Ont.C.A.)

The "air of reality" test is not a stringent one. It need only be met on a balance of probabilities. Where the missing evidence would be relevant to a crucial issue at trial (for example, credibility), the accused has established that there is an air of reality to his position that his ability to make full answer and defence has been prejudiced. Thereafter, the Court must consider the appropriate remedy to be accorded the accused whose Charter rights have been violated.

R. v. Mattingly, supra, aff’g (1994), 29 C.R. (4^th) 105 (Ont.G.D.) at 112

R. v. Daye, supra at 2

B. Application to the Present Case

(i) the lost police officer’s notes — unacceptable negligence

The Applicant concedes that neither the Crown nor the police were attempting to frustrate the ends of justice or to infringe upon the rights of the Applicant. However, the Crown must still establish to this Honourable Court’s satisfaction that Officer S****’s notes were not lost due to unacceptable negligence.

(ii) the lost police officer’s notes — assessing actual prejudice

The Applicant is prejudiced for the following reasons:
1. Due to the absence of the 3-September-1997 statement to Officer S****, the Applicant cannot fully and effectively cross-examine the complainant.
2. The Applicant will not be able to prove the prior inconsistent statement pursuant to section 11 of the Canada Evidence Act. (It is anticipated that the complainant will deny the version of events provided to Officer S**** by the Applicant.)
3. Credibility is the primary trial issue. The complainant and the Applicant are the only witnesses to the alleged offences. The Applicant’s ability to cross-examine the complainant on prior inconsistent statements is of critical importance.
4. The 3-September-1997 statement was the only contemporaneous statement on which the Applicant could have cross-examined the complainant. (The only other contemporaneous police statement or observations that might have been made was on 9 March 1998. On that day, Police Constable Daniel C**** attended at the home of the complainant and the Applicant. Officer C**** escorted the complainant from the home. No charge was laid against the Applicant. However, on 5 December 1998, the complainant alleged that the Applicant assaulted and threatened her before Officer C**** arrived. Unfortunately, Officer C****’s notes are also lost, and he has no recollection of the events on 9 March 1998 concerning the Applicant and the complainant.)
The prejudice is irreparable because there is no alternative source of information or documentation which could assist the Applicant. Two and one-half years have elapsed. Memories have faded. The complainant’s nephew, who acted as the interpreter, testified at the preliminary hearing that he could not remember what was said during the 3-September-1997 interview. Officer S**** also cannot remember the details of the interview. Similarly, Officer C**** cannot recall the events of 9 March 1998 involving the complainant and the Applicant.

(iii) the lost police officer’s notes — the appropriate remedy

It is respectfully submitted that a stay is the appropriate remedy, having regard to the following considerations:
1. The importance to the trier of fact of observing witnesses while being cross-examined on prior inconsistent statements.
2. The importance to the trier of fact of actually proving a prior inconsistent statement pursuant to section 11 of the Canada Evidence Act.
3. The specific importance in this case of the 3-September-1997 statement to Officer S****. It was the only contemporaneous statement on which the Applicant could have cross-examined the complainant, and which could have been proven as being inconsistent.
4. The source of the other possible contemporaneous statement or observations is also lost. (Officer C****’s notes regarding the 9-March-1998 incident are lost, and he has no memory of those events.)
5. Credibility is the primary trial issue. The complainant and the Applicant are the only witnesses to the alleged offences.
6. The lack of an alternative source of information or documentation that could address the prejudice suffered by the Applicant.

PART IV — ORDER REQUESTED

It is respectfully submitted, therefore, that this Application be allowed, and that these proceedings be stayed

RESPECTFULLY SUBMITTED THIS 15TH DAY OF MARCH 2000.

Craig Penney, Counsel for the Applicant

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