R. v. Carosella [1997] 1 S.C.R. 80: Full answer and defence -- Disclosure -- Destruction of evidence by third party

1996: June 19; 1997: February 6.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Fundamental justice -- Full answer and defence -- Disclosure -- Destruction of evidence by third party -- Complainant interviewed by sexual assault crisis centre social worker -- Accused later charged with gross indecency -- Notes made by social worker during interview with complainant destroyed by centre prior to court ordering production of complainant's file -- Whether failure to produce notes breached accused's right to full answer and defence -- Canadian Charter of Rights and Freedoms, s. 7.

Constitutional law -- Charter of Rights -- Remedy -- Destruction of evidence by third party -- Complainant interviewed by sexual assault crisis centre social worker -- Accused later charged with gross indecency -- Notes made by social worker during interview with complainant destroyed by centre prior to court ordering production of complainant's file -- Accused's right to full answer and defence breached -- Whether stay of proceedings appropriate remedy -- Canadian Charter of Rights and Freedoms, s. 24(1).

In 1992, the complainant went to a sexual assault crisis centre for advice as to how to lay charges against the accused for sexual abuse that she alleged occurred in 1964 when she was a student in a school in which the accused was a teacher. The centre is provided with government funding pursuant to the terms of a comprehensive agreement which requires the centre, inter alia, to develop a close liaison with justice agencies and to maintain as confidential and secure all material that is under the centre's control, which is not to be disclosed except where required by law. The complainant was interviewed by a social worker for about an hour and forty-five minutes. During the interview, the social worker took notes and informed the complainant that whatever she said could be subpoenaed to court. The complainant said that was quite all right. Following the interview, the complainant contacted the police and shortly thereafter the accused was charged with gross indecency. After the preliminary inquiry, at which the complainant testified and was cross-examined, the accused was ordered to stand trial. In October 1994, prior to the commencement of the trial, the defence brought an application for production of the centre's file concerning the complainant. The Crown, the complainant and the centre consented to the order. When the file was produced, it did not contain the notes of the complainant's interview. A voir dire was held which indicated that the notes had been destroyed in April 1994 pursuant to the centre's policy of shredding files with police involvement before being served in relation to criminal proceedings. The social worker who had conducted the interview and later shredded the notes had no recollection of the contents of the destroyed notes. By consent, the case to meet was tendered by the Crown. It included the police officer's notes of his interview with the complainant made one day after she attended the centre, the complainant's police statement, her testimony at the preliminary inquiry, and other evidence. Based on this material, the trial judge ruled on the defence's application for a stay of proceedings. He found that the destroyed notes were relevant and material and that they would more likely than not tend to assist the accused. He concluded that their destruction had seriously prejudiced the accused by depriving him of the opportunity to cross-examine the complainant as to her previous statements relating to the allegations she made and that, as a result, the accused's Charter right to make full answer and defence had been breached. Since it would be unfair, in such circumstances, to permit the prosecution to proceed, the trial judge ordered a stay of proceedings. The Court of Appeal set aside the order and directed the matter to proceed to trial. The court stated that the evidence must disclose something more than a "mere risk" to a Charter right and that in this case no realistic appraisal of the probable effect of the lost notes could support the conclusion that the accused's right to make full answer and defence was compromised.

Held (La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be allowed.

Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: An accused who alleges a breach of his right to make full answer and defence as a result of non-disclosure or non-production is not required to show that the conduct of his defence was prejudiced. The question of the degree of prejudice suffered by an accused is not a consideration to be addressed in the context of determining whether a substantive Charter right has been breached. The extent to which the Charter violation caused prejudice to the accused falls to be considered only at the remedy stage of a Charter analysis.

The foundation for the Crown's obligation to produce material which may affect the conduct of the defence is that failure to do so would breach the accused's constitutional right to make full answer and defence. The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused's constitutional rights without the requirement of an additional showing of prejudice. The breach of this principle of fundamental justice is in itself prejudicial. It is immaterial that the right to disclosure is not explicitly listed as one of the components of the principles of fundamental justice. The components of the right cannot be separated from the right itself. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to s. 24(1) of the Charter. It follows that if the material which was destroyed meets the threshold test for disclosure or production, the accused's Charter right was breached without the requirement of showing additional prejudice.

In this case, the complainant consented to the application for production and it is clear, given the circumstances, that the file would have been disclosed to the Crown. As material in the possession of the Crown, only the Stinchcombe standard would have applied; however, even if the higher O'Connor standard relating to production from third parties was applicable, both standards were met in this case. There was abundant evidence before the trial judge to enable him to conclude that there was a reasonable possibility that the information contained in the notes that were destroyed was logically probative to an issue at the trial as to the credibility of the complainant. Once the material satisfied the O'Connor relevance test, the balancing required in the second stage of the test would have inevitably resulted in an order to produce since confidentiality had been waived and since the complainant and the Crown consented to production. The destruction of this material and its consequent non-disclosure resulted in a breach of the accused's constitutional right to full answer and defence.

The trial judge did not err in finding that a stay of proceedings was the appropriate remedy in the circumstances of this case. He instructed himself in accordance with the appropriate standard that the power to grant a stay is one that should only be exercised in the clearest of cases. Noting that credibility was a major issue in the case, the trial judge found that the destruction of the notes was significant and had seriously prejudiced the accused, depriving him of his basic right of the opportunity to cross-examine the complainant on previous statements made by her as to the incidents, and, as a result, had substantially impaired the accused's ability to make full answer and defence. The notes represented the first detailed account of the alleged incidents and constituted the only written record which was not created as a result of an investigation. Since the complainant would not likely admit that what was said was inconsistent with her testimony, any possibility of contradiction of the complainant by reference to her previous account was destroyed.

The presence of either one of the following two factors justifies the exercise of discretion in favour of a stay: no alternative remedy would cure the prejudice to the accused's ability to make full answer and defence, and irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued. The presence of the first factor cannot be denied. With respect to the second, the complete absence of any remedy to redress or mitigate the consequences of a deliberate destruction of material in order to deprive the court and the accused of relevant evidence would damage the image of the administration of justice. Confidence in the system would be undermined if the court condoned conduct designed to defeat the processes of the court by an agency that receives public money and whose actions are scrutinized by the provincial government.

Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): This case is not about disclosure. Disclosure is a concept which is binding solely upon the Crown. This duty to disclose does not extend to third parties. Nor does it impose an obligation upon the Crown to comb the world for information which might be of possible relevance to the defence. The centre is a third party, a party which has no obligation to preserve evidence for prosecutions or otherwise. Its policy decisions are for itself to determine and not for the Crown, the accused or the courts to interfere with, so long as it acts within the confines of the law. As well, this case is not, strictly speaking, about the production of records since the material requested is no longer available to be produced. The key issue is in what circumstances the unavailability of material previously held by a third party translates into a violation of an accused's rights. Although there would appear to be no government action which would trigger the Charter's application in this case -- the accused's allegation concerns the actions of the centre -- the Charter is engaged by the fact of the prosecution itself. Where the Crown pursues a prosecution which would result in an unfair trial, this constitutes state action for the purposes of the Charter.

While the production of every relevant piece of evidence might be an ideal goal from the accused's point of view, it is inaccurate to elevate this objective to a right, the non-performance of which leads instantaneously to an unfair trial. Where evidence is unavailable, the accused must demonstrate that a fair trial, and not a perfect one, cannot be had as a result of the loss. He must establish a real likelihood of prejudice to his defence; it is not enough to speculate that there is the potential for harm. Materials can be easily lost and setting too low a threshold for finding a breach of the right to full answer and defence would bring the justice system to a halt. While it is true that, with regard to certain rights, a court can infer the necessary degree of prejudice, this is not uniformly so. Where an accused alleges a violation of ss. 7 and 11(d) of the Charter, he will often have to demonstrate harm to his interests before a breach can be established. This is so because ss. 7 and 11(d) encompass extremely broad and multifaceted concerns, and not every action by the state will automatically trigger a violation. To demonstrate that a breach has actually occurred often demands a finding and measuring of the prejudice suffered. Given the nature of the action which is being challenged in the present case -- the actual pursuing of the prosecution -- it seems quite appropriate to require a demonstration of a real likelihood of prejudice. There are ample legal and policy reasons for placing this onus upon the accused. The burden is not an unmanageable one and is consistent with established jurisprudence. For missing evidence to cause a violation of the Charter, therefore, the accused must demonstrate upon a balance of probabilities that the absence of the evidence denies him a fair trial. For this to happen, there must be a real likelihood of prejudice to the right to full answer and defence, in that the evidence if available would have been more likely than not to assist the accused. It is not proper to state that a Charter right has been violated and that a fair trial cannot be had based on pure speculation.

In this case, the trial judge erred in not properly considering whether or not the accused had actually suffered a violation of his Charter rights by measuring the prejudice caused by the absence of the impugned material. Any loss was no more than a mere speculative risk to the accused's rights. Furthermore, if a proper inquiry into the need for the documents had been held, these notes would not even have met the standard for production to the trial judge set out in O'Connor since there is no basis to conclude that they were "likely relevant", aside from the bare assertion of the defence that the material could somehow have been used to cross-examine the complainant. If this lower standard is not met, the more difficult onus of showing prejudice to the accused's fair trial interest will also not be satisfied. The defence's request for production amounted to no more than a fishing expedition in the hopes of uncovering a prior inconsistent statement. Despite the finding of the trial judge, nothing on the record suggests that there was any discussion between the complainant and the social worker about the actual details of the events themselves. More importantly, the defence never asked a question about the details of the conversations to the complainant -- the one person who could have answered whether they were relevant or not. While there was some evidence indicating that the complainant spoke of the offence, this is a long way from saying that there were details given which could have impacted upon her credibility on a material issue if she were to be cross-examined. Finally, it should not be inferred from the sheer length of the conversations between the complainant and the social worker that there were notes made which could have been of assistance.

Since the notes were not "likely relevant", to accept the trial judge's finding that there was undoubtedly prejudice occasioned by their loss would involve a major "leap of logic". Moreover, these notes were merely a summary, and not a detailed recounting of the interview, and it is highly likely that anything which did appear inconsistent would have been of such low value given the circumstances that the prejudice from allowing the complainant to be cross-examined upon them would have outweighed any potential probative value. Even if the defence could have cross-examined the complainant on the destroyed notes, or laid a foundation for such cross-examination, their absence does not demonstrate prejudice in the context of this case. The defence had no shortage of material upon which to test the complainant's credibility and there is no indication that the notes made at the centre would have been materially different from the two detailed statements given to the police. In addition, the complainant was subject to cross-examination at the preliminary inquiry, in which the defence probed deeply into the details of the alleged offence. In light of the multitude of evidence which was available to the accused, it is purely speculative to suggest that anything the complainant said to the social worker may have been materially inconsistent, and even if it was, that it was not duplicated by what was available to the defence. The accused did not demonstrate a real likelihood of prejudice to his ability to make full answer and defence and, therefore, there was no breach of his rights in this regard.

Before coming to a concrete assessment of the appropriate remedy in a case where missing evidence is shown to affect the accused's right to full answer and defence, the trial judge must consider all the evidence and the assessment must be done in its proper context. A stay of proceedings should continue to be a remedy of last resort, and should come into play only in the "clearest of cases" where the prejudice suffered is irreparable, and no other remedy will suffice. The key factor in assessing whether other remedies are possible will be an examination of how the evidence could have potentially impacted upon the Crown's case.

The centre's conduct was not an abuse of process by virtue of being an affront to the judicial system. First, this "residual category" of abuse of process focuses on the motives and conduct of the prosecution, not on the motives of third parties. The question is whether the prosecution undermines the moral integrity of the system. The conduct of a third party cannot, unless it affects the fairness of the trial, disentitle the Crown to proceed with a case which it believes in good faith to be suitable for prosecution. Here, whatever the motives of the centre, the Crown was not abusing the court's process. The suggestion that the centre can be considered an arm of the Attorney General, or even a government agency, because it receives funding from the government and must follow certain guidelines in the process, cannot be seriously entertained. Second, even if third parties' conduct were relevant, the centre's conduct was not such an affront to the judicial system that it could be characterized as an abuse of process. The centre was not acting out of generalized animus against persons accused of sexual assault or at the instigation of the Crown. Rather, the centre was implementing a general policy designed to protect its clients' privacy. It was also under no obligation to create or maintain records. To suggest that a court should be able to enforce an obligation maintenance to property which might one day be needed by the courts is a hefty burden. The procedure set out in O'Connor does not impose a special obligation on therapists and counsellors to create or retain records.

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