DATE: 19990607 DOCKET: C30268 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Appellant) v. GARY FRANK DAYE (Respondent) BEFORE: BROOKE, AUSTIN and MOLDAVER JJ.A. COUNSEL: Trevor Shaw For the appellant Robert A. Barr For the respondent HEARD: June 1, 1999 On appeal from the judgment of P.J. Cosgrove J. dated June 24, 1998 ENDORSEMENT [1] Unlike the situation in R. v. J.D., [1996] O.J. No. 1907 (Ont. C.A.), reversing [1995] O.J. No. 4091 (Gen. Div.), the trial judge in this case ordered the stay at the conclusion of the Crowns case, after hearing all of the evidence tendered by the Crown on the trial proper, as well as additional evidence relevant to the stay application led in the absence of the jury. [2] In his reasons for judgment, the trial judge reproduced the content of the stay application in its entirety and found that all of the material facts pleaded were confirmed by the evidence. These included the following items of significance: 1. In her original complaint to the Childrens Aid Society in May 1987, the complainant, then age 14, described a single incident of sexual abuse (forced sexual intercourse) at the hands of the respondent in late November 1985.1 One month later, in June 1987, she provided a detailed statement to the police in which she apparently complained of multiple incidents of abuse commencing in November 1985.2 In 1996, when the investigation was re-opened, the complainant reported multiple incidents of abuse commencing in 1981 or 1982 and continuing to 1985 or 1986; 2. For unexplained reasons, after receiving her comprehensive June 1987 statement, the police required the complainant to swear to its contents before a justice of the peace. The police also required the complainant to undergo polygraph testing; 3. After completing their investigation in 1987, the police provided the Crown with a complete brief, including the complainants sworn statement and the questions and answers from her two hour polygraph examination. After reviewing the file, the Crown Attorney recommended that no charges be laid. Consequently, the entire file, including the sworn statement and polygraph examination, was shredded some time two years later; and 4. Records dating back to 1987, produced from the Childrens Aid Society, revealed that the complainant had a history of manipulation and lying. [3] In his reasons, the trial explained why he had refused to rule on the stay application at the pre-trial stage. In short, he was concerned about several issues, including, whether there was an air of reality to the submission that the complainants sworn statement would have proved useful to the defence; whether there were inconsistencies between the complainants evidence at the preliminary hearing and the notes contained in the original investigating officers notebook; and the degree of prejudice that the respondent would suffer as a result of the missing evidence. [4] On the resumption of the application, after having heard all of the relevant evidence, the trial judge found it significant that in the context of her allegation of forced sexual intercourse (count 8 in the indictment), the complainant did not recall the respondent smearing seminal fluid on her chest and asking her to fellate him and he considered her lack of consistency to be a major defect in her evidence. Notably, this finding preceded the trial judges remarks that as a matter of law and common sense, while it was understandable that young people might not remember peripheral details, they could be expected to remember remarkable or dramatic experiences, such as the smearing of seminal fluid and a request to commit fellatio. [5] Based on the whole of the evidence, and in the face of the serious discrepancy noted, the trial judge was satisfied, on a balance of probabilities, that the complainants original sworn statement probably contained material that the respondent could have used to challenge her credibility. Given that credibility was the central issue, the trial judge determined that this was a case where the loss of relevant evidence occasioned actual prejudice to the respondent of such magnitude and importance that it effectively deprived him of the opportunity to make full answer and defence. [6] Contrary to the submission of the appellant, we are satisfied that the trial judge applied the correct legal principles in assessing the application and his ruling is therefore entitled to deference. In coming to this conclusion, we have not ignored the fact that in his reasons, the trial judge did not specifically address the issue whether the evidence that did exist provided an alternate source of information sufficient to make up for the lost evidence. In our view, when the reasons are read as a whole, it is apparent that the trial judge was satisfied that the existing evidence did not provide an adequate substitute. Had he been of a different mind, he would not have held that the prejudice occasioned by the missing evidence was so significant that it effectively deprived the respondent of the opportunity to make full answer and defence. [7] While the case is a close one, we think that this was one of those rare instances where it was open to the trial judge, in the exercise of his discretion, to grant the stay. In this regard, we note that the trial judge had the opportunity to observe and listen to the complainant, both in-chief and cross-examination, and he was uniquely positioned to assess the nature and extent of the prejudice occasioned to the respondent by reason of the loss of the complainants detailed sworn statement, as well as the loss of her two-hour polygraph examination. [8] Under these circumstances, we see no basis for interfering with the trial judges ruling and the appeal is accordingly dismissed. _______________________________ 1 The complainant described the incident as having occurred in November 1986 but this could not have been so since she was a ward of the Childrens Aid Society at that time. 2 The only reference to the sworn statement appears in a brief four line notation found in the original investigating officers notebook. By the time of trial in June 1998, the investigating officer was deceased. |