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 Crown’s 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 Children’s 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 complainant’s 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
          Children’s 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 complainant’s sworn
statement would have proved useful to the defence; whether there
were inconsistencies between the complainant’s evidence at the
preliminary hearing and the notes contained in the original
investigating officer’s 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 judge’s 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 complainant’s 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 complainant’s 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 judge’s 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 Children’s 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 officer’s
notebook.   By  the time of trial in June 1998, the investigating
officer was deceased.