R v Kwon (SKCA)
[May 7, 2020] Sexual Assault - Incapacity to Consent is a High Threshold - 2020 SKCA 56 [Reasons by Whitmore J.A., with Leurer and Tholl JJ.A. concurring]
AUTHOR’S NOTE: SKCA reminds us in this decision that there is a significant distinction between lack of memory and a lack of consent for sexual activity. When significant intoxication is involved, complainants in sexual assault cases can still have consented even though they completely lack any memory of doing so. There is no place for subsequent regret in this analysis. The standard is high and requires external evidence where the complainant is unable to supply the evidence directly. Of course, being asleep establishes incapacity to consent, but short of passing out or sleeping, the threshold for incapacity remains very high. Here, an intoxicated complainant who was fading in and out in her memory was unable to recall the sex act at all, but surrounding evidence did not suggest she was intoxicated close to passing out or sleeping when she left bar and she had some recollections from inside the accused's vehicle - just no memory of the sex act. New trial was the result as the trial judge lowered the bar for "incapacity" in this analysis. Notably, conviction cannot rest on an in the alternative finding of lack of consent or lack of capacity to consent (these findings demonstrate inconsistent findings of fact).
 At the operative time, the appellant owned and operated a bar in Grenfell, Saskatchewan. The complainant, A.D., and her husband were regular patrons at the bar. On the night of March 20, 2015, A.D. and her husband arrived at the bar around 10:00 p.m. They purchased some beer to take home, but A.D. wished to remain at the bar. Her husband left shortly after their arrival, leaving A.D. at the bar.
 The appellant gave A.D. a ride home, some 25 minutes away, after he closed the bar. The appellant asserts he had consensual sexual intercourse with A.D. in his van on the way to her home and that the sexual intercourse was initiated by A.D. A.D. testified she did not remember engaging in sexual intercourse with the appellant and remembered little of the evening.
 At trial, A.D.’s husband testified that A.D. had consumed approximately six bottles of beer at home on the evening of March 20 and he himself had consumed six to nine beers. As they were running low on beer, they drove to the bar in Grenfell, some 26 kilometers away, to purchase more. He testified that he left shortly after their arrival and that A.D. remained at the bar. When he left, A.D. was not slurring her speech and was walking normally. He testified he woke up in the night and found A.D. asleep on the couch with her clothes on and, the next day, A.D. asked him if they had had sexual intercourse the night before to which he replied they had not. He testified he took A.D. to the hospital for an examination.
 J.I., a friend of A.D., was at the bar that evening and testified that when she saw A.D., who had come over to her table to request a ride home, A.D. appeared very intoxicated. According to J.I., her speech was slurred and she was not sitting upright. J.I. testified A.D. told her she was at the bar because she had had a fight with her husband.
 J.I.’s husband, M.S., testified that A.D. appeared “a little bit drunk”, and said he could tell she was intoxicated by the way she was laughing and talking with J.I. He testified that A.D. was staggering a little. Neither J.I. nor M.S. were aware of A.D.’s capacity to consume alcohol.
 A.D. testified that she did not recall ordering or paying for beer after she arrived at the bar with her husband. She denied getting into a fight with her husband when he left. A.D. described her intoxication level that evening as being a nine or ten out of ten. She testified that, on the night in question, she had difficulty walking and was not sure if she had blacked out or was unconscious at the bar.
Consent and Capacity to Consent
 No consent can be obtained where the complainant lacks the mental capacity to give consent, as meaningful consent requires “a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act” (J.A. at para 44; see also R v Kishayinew, 2019 SKCA 127 at para 16, 382 CCC (3d) 560[Kishayinew]). The threshold to find that someone does not have an operating mind capable of consent is high (Kishayinew at paras 16 and 26). In cases where the complainant was asleep or otherwise unconscious, it is clear that the complainant did not have an operating mind capable of consenting to the sexual activity in question (R v Al‑Rawi, 2018 NSCA 10 at paras 33 and 60, 359 CCC (3d) 237 [Al‑Rawi], citing R v Esau, 1997 CanLII 312 (SCC),  2 SCR 777), but it is less clear that the complainant is incapacitated or does not have an operating mind where the evidence falls short of establishing unconsciousness.
 The majority in R v Hutchinson, 2014 SCC 19,  1 SCR 346 [Hutchinson], outlined the following basic analytical approach to consent as required by the Code:
 The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or [his or] her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate [his or] her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2)(c)).
 Therefore, the first step is to determine whether the Crown has proven the absence of consent. Consent involves agreement to the touching, its sexual nature, and the identity of the partner (Hutchinson at para 5). The absence of consent is “determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred” (R v Ewanchuk, 1999 CanLII 711 (SCC),  1 SCR 330 at para 26).
 If there is a reasonable doubt as to the absence of consent, one proceeds to the second analytical step outlined in Hutchinson, which is to consider whether the ostensible consent was valid at law.
 In G.F., Pardu J.A. found that the trial judge’s failure to consider the issue of consent separately from the issue of capacity was an error of law and stated that the trier of fact should not blur the analysis of the separate issues of consent and capacity to consent. The appeal was allowed and the matter was remitted for a new trial for two reasons. First, the trial judge erred in his capacity assessment as his reasons could be read as equating any degree of impairment by alcohol with incapacity. Second, the trial judge did not make a clear finding that the complainant did not consent to the sexual activity irrespective of capacity. Justice Pardu had the following criticism of the trial judge’s reasons:
The manner in which the reasons are structured leaves me uncertain as to whether the trial judge considered the issue of consent separately from the issue of capacity. It is clear that the trial judge did not engage the two-step analytical process I have articulated in these reasons, by first evaluating whether the complainant did not consent and then turning, if necessary, to whether or not the complainant had the capacity to consent. He also did not apply the jurisprudence discussing the level of intoxication which could result in a finding of incapacity, if it were necessary to go to that step. His statement that no consent is obtained where a complainant is intoxicated suggests that in his view, any level of intoxication was sufficient to vitiate consent. It is not clear that this belief did not constitute the basis for his statement that there was no consent.
 Although the trial judge states, at para. 52, that he “concluded that C.R. did not consent to the sexual activity” and, at para. 71, that “the balance of the evidence at trial convincingly supports the conclusion that G.F. and R.B. forced C.R. into having non‑consensual sex”, the convictions cannot be upheld on such a basis. First, as discussed above, the trial Crown did not invite the trial judge to convict on this basis. Second, the vague statement from the trial judge that the “balance of the evidence” at trial supports such a finding is not a sufficient basis to ground a conviction; it is not clear the trial judge was making a finding that the convictions could be sustained on the basis that the complainant did not consent, regardless of her capacity.
 In Kishayinew, this Court noted that relying on both pathways for conviction could lead to an inconsistent finding of fact. It found that a determination the Crown has proven beyond a reasonable doubt both an absence of consent and that consent was vitiated by lack of capacity is inconsistent, as the latter raises a reasonable doubt as to whether there was a lack of consent. The conviction can be upheld on appeal if the evidence supports incapacity but, as in G.F., if the evidence does not support incapacity, then a conviction cannot be sustained. In Kishayinew, both Barrington‑Foote J.A. (with Jackson J.A. concurring) and Tholl J.A. (dissenting) found that the trial judge did not rely on inconsistent findings of fact as the basis for conviction. Justice Barrington‑Foote held that the trial judge was unable to decide whether the complainant had consented and, therefore, relied on the second pathway for conviction (at para 24). Justice Tholl found that the trial judge relied on both pathways for conviction but that he had expressed no doubt there was an absence of consent before continuing his capacity analysis (at para 87).
Capacity to Consent
 The test for lack of capacity to consent was set out in Al-Rawi (at para 66) and adopted by the Ontario Court of Appeal in G.F. (at para 37). Justice Barrington‑Foote cited this test with approval in Kishayinew:
 Section 273.1(2) of the Criminal Code provides that one of the circumstances where consent is not obtained is where the complainant “is incapable of consenting to the activity”. Consent means “the conscious consent of an operating mind” (J.A. at para 36), and requires “a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act” (J.A. at para 44). In R v Al-Rawi, 2018 NSCA 10, 359 CCC (3d) 237, Beveridge J.A., after noting that some cases suggest “minimal” capacity is required to consent, offered the following useful summary of the law:
 Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of:
1. appreciating the nature and quality of the sexual activity; or
2. knowing the identity of the person or persons wishing to engage in the sexual activity; or
3. understanding [he or] she could agree or decline to engage in, or to continue, the sexual activity.
 In cases where consent and capacity to consent are live issues, the trial judge must determine if it has been established beyond a reasonable doubt that the complainant did not consent, or lacked the capacity to consent. As detailed above, these inquiries are entirely subjective.
 In R v G.F., 2019 ONCA 493, 146 OR (3d) 289 [G.F.], Pardu J.A. adopted this summary of the law “subject to the caveat that, in light of the varieties of human conditions which may raise issues of incapacity, it may not describe all of the circumstances in which a complainant could be found to lack an operating mind” (at para 37). I concur. I also agree with her opinion (at para 36) that “capacity for considered evaluation of the collateral risks and consequences of sexual activity” is not necessary for capacity to consent, and further:
 … while mere proof of drunkenness, loss of inhibitions, regret for a bad decision or some memory loss do not of themselves negate capacity for consent, some physical actions such as walking a short distance, making a phone call, speaking, and some awareness of or resistance to sexual activity do not necessarily preclude a finding of incapacity. I also agree that some memory of the events is not necessarily inconsistent with incapacity … As the case law demonstrates, the trier of fact must consider all the evidence to make the factual determination of the complainant’s capacity at the relevant time. Issues of incapacity can arise in a multitude of circumstances, including sleep, intoxication, illness, and intellectual disability.
 In summary, therefore, in order to rely on a lack of capacity to consent for conviction, the Crown must prove beyond a reasonable doubt the complainant lacked the capacity:
(a) to appreciate the nature and quality of the sexual activity in question; or
(b) to identify the person or persons wishing to engage in the sexual activity; or
(c) to understand that he or she could agree or decline to participate in or continue the sexual activity in question.
 As stated above, there is a clear line between capacity and incapacity where the complainant is unconscious, but the line can be less clear where the complainant is incapacitated short of unconsciousness.
Application to the Facts
 Turning now to the case at hand, this is why it is important whether A.D. was found to be incapacitated due to intoxication short of unconsciousness or whether she was found to be incapacitated because of unconsciousness. As noted, intoxication on its own does not, prima facie, vitiate consent. The whole of the Trial Decision raises a concern as to whether the trial judge properly concluded that A.D. was intoxicated to the point of incapacity. This concern will be expanded upon below, but in sum: first, there was no clear finding that A.D. was slurring her words, falling, stumbling, or sleeping at the bar. Second, there was no evidence of extreme intoxication, such as A.D. vomiting or behaving in an illogical or incomprehensible manner on the night in question. Third, the trial judge’s reasoning that A.D.’s conduct the next day was inconsistent with the position that she had consensual sex with the appellant and forgot about it is unsound.
 While this subsequent conduct may be consistent with someone who could not remember with whom he or she had had sexual intercourse, without further explanation it is only consistent with A.D.’s evidence that she did not remember having sexual intercourse. It has no value whatsoever in determining whether the conversations took place or whether the sexual intercourse was consensual.
 The trial judge should have explained why she did not accept the appellant’s evidence but she did not do so. Instead, she rejected the appellant’s evidence about the conversation simply on the basis it was inconsistent with A.D.’s subsequent conduct.....
 At paragraph 37 of the Trial Decision, the trial judge began her analysis of whether the appellant had an honest but mistaken belief that A.D. consented to the sexual activity. An element of this defence is whether the steps that were taken to ascertain consent were reasonable in the circumstances. There is both an objective and a subjective element: the accused must take objectively reasonable steps assessed in light of the circumstances known to the accused at the time (R v Barton, 2019 SCC 33 at para 104, 435 DLR (4th) 191). The inquiry into whether reasonable steps are taken is contextual and fact specific. It is often the case that the more intoxicated an individual appears to be, the more elevated the required reasonable steps will be.
 In coming to this conclusion, the trial judge mischaracterized the appellant’s evidence and drew inferences that cannot be supported on the record, at least without explanation....
 The trial judge believed A.D.’s evidence about her being helped into the car despite also finding that A.D. did not recall being in the car except for brief moments and that A.D. was significantly intoxicated. The trial judge did not explain or reconcile how A.D.’s testimony can be reliable for both positions. The explanation that the trial judge gave for not believing that the conversations in the appellant’s vehicle occurred was that A.D.’s subsequent conduct was inconsistent with the existence of those conversations. Without more, that explanation does not rule out the possibility that A.D. had those conversations but forgot.
 Those points made, the trial judge was still required to determine whether the whole of the evidence showed that A.D. either lacked the capacity to consent or did not consent in order to complete her analysis pursuant to W.(D.).
 Without the appellant’s evidence, the evidence of the offence is that A.D. had a vague recollection of being driven home by the appellant. She also remembered stumbling out of the bar to what she assumed was the appellant’s vehicle and that the appellant helped to hold her up. She speculated that the appellant offered to drive her home but, if any conversation happened, she did not remember any details of it. She clearly stated that she did not consider calling her husband for a ride. She recalled buckling up her seatbelt. She heard strange music and she remembered the appellant being in front of her. She felt pressure on her chest and that it was uncomfortable to breathe. She recalled being on a gravel road when the vehicle stopped beside a bush. The next thing she remembered was walking into her house and then waking up the next day feeling sick. She felt that she had had sex and found discharge in her vagina. After finding out she did not have sex with her husband, A.D. suspected the appellant because she remembered he drove her home. In cross-examination, she denied asking the appellant to stop the vehicle so she could urinate.
 The trial judge did not reconcile why she accepted that A.D. did not remember most of the ride home and yet did accept her evidence about what occurred shortly before the drive. This makes it difficult to understand why A.D.’s memory was affected but that what she did remember about the circumstances of the drive was reliable and credible.
 A.D.’s significant intoxication to the point of incapacity is not proven by J.I.’s and M.S.’s evidence. M.S.’s evidence is vague regarding A.D.’s degree of intoxication and J.I.’s evidence suggests that, while A.D. was drunk, she was still coherent and making sense shortly before the bar closed.
 The evidence also suggests that A.D. did not remember sexual activity because she was unconscious. The threshold for finding incapacity short of unconsciousness is high. It could be inferred from A.D.’s testimony that she had been unconscious or semi-conscious at the time of the sexual activity. Further, it can be inferred that a heavily-intoxicated person would fall asleep during a 26 kilometre drive at 2:00 a.m. If one were to disregard the appellant’s evidence and the incorrect concession about A.D. being asleep attributed to him by the trial judge, it would not be unreasonable to conclude that A.D. was not conscious during the sexual activity and, therefore, was unable to appreciate she was having sex. However, the trial judge did not draw that conclusion based on A.D.’s testimony. The only time the trial judge referred to whether A.D. was asleep was when she mistakenly acknowledged the appellant’s statement as a concession that A.D. was asleep.
 In G.F., the trial judge blurred the analysis for consent with the analysis for capacity to consent. In the circumstances of that case, this was found to be an error of law that necessitated a new trial. In the Court of Appeal, Pardu J.A. noted that the trial judge did not make a clear finding that the complainant did not consent to sexual activity irrespective of capacity and, because the capacity assessment could not be upheld, neither could the conviction.
 Similarly, in the case at hand, there is not much evidence to support the finding that A.D. was extremely intoxicated. If the intoxication assessment cannot be upheld, then the conviction can only be sustained if it is clear that A.D. was unconscious or did not consent. The trial judge did not make an explicit finding that A.D. was unconscious and did not make an explicit finding that A.D. did not consent, but rather found that “because she lacked the capacity to consent… [A.D.] did not consent” (at para 36).
 This leaves it unclear whether A.D. consented and the consent was vitiated by incapacity, or whether A.D. was unconscious and therefore did not consent.
 The trial judge accepted that A.D. did not recall having sex and then stated she was satisfied beyond a reasonable doubt that A.D. did not have the capacity to consent and therefore did not consent. A.D.’s inability to recollect what happened is only indirect evidence that she lacked the capacity to consent. Other indirect evidence includes the number of drinks A.D. had consumed and the evidence of J.I. and M.S. As stated above, the evidence of J.I. and M.S. is not helpful in establishing A.D.’s degree of intoxication. Further, A.D. had brief memories of the ride home, which indicates some level of awareness of what was going on, namely, that she was in the appellant’s van and on her way home, and she recalled details such as passing the bridge and that music was playing. While this is not conclusive proof that she had the required capacity to consent to sexual intercourse, it is relevant when weighing the whole of the evidence and should have been considered by the trial judge. As a result, the trial judge failed to conduct a proper W.(D.) analysis.
 Considering the evidence as a whole and in light of the errors identified, I am unconvinced that the “high bar set by the definition of incapacity to consent” has been met (Kishayinew at para 26)....
R v Charpentier (ONSC)
[May 14, 2020] Fraud - Elements - Requirement to Prove Identity of Victim Corporation - 2020 ONSC 2947 [Mr. Justice D.J. Gordon]
AUTHOR’S NOTE: While the acquittal in this case rests on multiple bases, the most unusual is the prosecution's failure to prove the identity of the victim corporation. Much of the Crown's problems seem to flowed from the fact that the "victim's" owner appeared to be a co-conspirator in crimes and therefore did not participate in the trial. Many issues of proof flowed from this fact. However, the case provides an excellent illustration of how a failure to prove a corporation's identity leads to an acquittal - no shortcuts are permitted in a criminal prosecution.
 Barry Lee Charpentier stands charged with one count of fraud, contrary to section 380(1)(a), Criminal Code of Canada. The indictment, dated August 28, 2018, and amended, on consent, on September 30, 2019, identifies the time period of the alleged offence as occurring between January 1, 2005, and June 30, 2013. The complainant is said to be E & E Seegmiller Limited.
 The amount involved in this case is $6,418,699.50, Mr. Charpentier receiving one-half, namely $3,209,349.75, by way of payments from Chym Engineering Limited (“Chym”) to Isle of Innisfree Designs Limited (“Innisfree”). Chym was a sub-contractor on the construction projects hereafter described. Innisfree was a company owned by Andrea Yates, the former spouse of Mr. Charpentier.
 There is no dispute regarding the amount involved or with the payments made and received. Rather, the disagreement, in essence, is with the characterization of those payments.
 As previously stated, E & E Seegmiller Limited is referred to as the complainant in the indictment. There is a serious issue raised by the defence as to whether the Crown has proven the identity of the company, particularly having regard to the essential elements of the offence. Accordingly, in the review of the evidence I will simply refer to the business entity as the Seegmiller company.
 The duties of Mr. Charpentier included identifying potential construction projects, preparing estimates for same and presenting bids to the project owners. Most, if not all, of the projects were put out to tender. If the bid was successful, a contract would be prepared by the project owner. Mr. Charpentier would then be involved as the project manager and was responsible for retaining sub-contractors as needed. Throughout the process, Mr. Charpentier reported to Tim Seegmiller, said to be one of the principals of the Seegmiller company. Mr. Seegmiller approved all bids.
 One of the sub-contractors, in all of the forty-three construction projects referred to in evidence, was Chym. Chym was retained to provide construction survey services on the projects. The principal of Chym was Ka-Leung Chau, known as “Buddie” Chau.
 The documentary evidence includes:
(a) project booklets;
(b) cheques from E & E Seegmiller Limited to Chym;
(c) cheques from Chym to C.P.S.; and
(d) cheques from Chym to Innisfree.
 The Crown’s case may be summarized in the following manner:
(a) Mr. Charpentier, on behalf of the Seegmiller company, would retain Chym as a sub-contractor on each project;
(b) Chym would further sub-contract with C.P.S. or C.S.S. to provide the actual construction survey services;
(c) C.P.S. and C.S.S. would deliver invoices to Chym for the work;
(d) Chym would deliver invoices to the Seegmiller company for amounts in excess of the invoices it received from C.P.S. and C.S.S.;
(e) Mr. Charpentier would deliver an internal progress payment certificate to the accounting department, advising it to pay Chym the amount as invoiced;
(f) the payment cheque would be forwarded to Chym;
(g) Chym would pay C.P.S. and C.S.S. as invoiced; and
(h) Chym would pay one-half of the excess amount to Innisfree.
 That excess amount was $6,418,699.50 between 2005 and 2013. $3,209,349.75.
 According to Mr. Chau, he was approached by Mr. Charpentier in 2003 or 2004 with a proposal of doing work “under the table”. Mr. Chau agreed to provide quotes on projects that were higher than the value of the work involved. He decided to sub-contract the work to C.P.S. and C.S.S. to cover the overbilling and to avoid questions from his partners.
 Mr. Chau indicated the initial cheques were issued by Chym in favour of Ms. Yates, then spouse of Mr. Charpentier, for one half of the excess funds. He made reference to an audit by Canada Revenue Agency at some point and, as a result, subsequent cheques or deposits were made to Innisfree, to give the appearance of business to business.
Identity of the Victim
 The indictment identifies E & E Seegmiller Limited as the victim of the alleged fraud. This corporate name appears on the cheques to Chym and some, but not all, documents tendered in evidence. The company was briefly mentioned by Mr. Nentwig and by Mr. Charpentier in their testimony, but no detail was provided. Mr. Nentwig also referred to the Seegmiller group of companies, but such was never defined.
 Defence counsel submits it is incumbent on Crown counsel to prove the identity of the victim on the requisite criminal standard. This, he says, was not accomplished in this case. Proof can be made in a number of ways, normally by presenting a certificate of incorporation from the Director, Companies Branch, pursuant to the Business Corporations Act. Mr. Nentwig, defence counsel argues, was an employee of the Seegmiller group of companies and, not being a director of E & E Seegmiller Limited, did not, and could not conclusively identify the company. Defence counsel further points to the absence of evidence from Mr. Seegmiller, sometimes referred to as a principal, presumably an officer and director, of the company.
 Section 380 refers to “person”. By way of definition in section 2, person includes an organization. But organization is defined as follows: “organization” means
(a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or
(b) an association of persons that
(i) is created for a common purpose,
(ii) has an operational structure, and
(iii) holds itself out to the public as an association of persons;
 There was no evidence to suggest E & E Seegmiller Limited was a public body, society, firm, partnership, trade union, municipality or an association of persons. That leaves only body corporate or company, the obvious entity when dealing with a purported incorporated entity. To the extent some of the documents tendered refer only to E & E Seegmiller, sole proprietorships are not “persons” capable of being defrauded. See: R. v. Campbell, 1986 CanLII 35 (SCC),  2 S.C.R. 376 (S.C.C.).
 In this case, Crown counsel chose to identify E & E Seegmiller Limited as the victim in the indictment. I conclude it is incumbent on Crown counsel to establish the named victim as a legal entity. The evidence presented does not meet the onus of proof beyond a reasonable doubt.
 Further, there are other and related matters not addressed by way of evidence. As previously mentioned, there was brief reference to the Seegmiller group of companies and to E & E Seegmiller Limited. But no corporate documents were tendered in evidence. The corporate structure is unknown. So too is ownership of the business operations. It is impossible, on this evidence, to ascertain who owned the assets and who was entitled to the funds arising from the projects. There was no evidence to identify the officers, directors and shareholders of the company or companies.
 In addition, no bank account or accounting records were tendered in evidence. Also absent are the project contracts. The only documentation are copies of cheques. Cheques are not proof of a company’s existence.
 In result, I conclude Crown counsel has not established the existence of E & E Seegmiller or that it was a victim. This, in my view, is fatal to the Crown’s case.
 The element of deprivation, as we see from Olan, is satisfied by proof of detriment, prejudice or risk of prejudice to the economic interests of the victim. In this case, the Crown alleges $6,418,699.50 was the amount of the fraud. The issue is whether the Seegmiller company was actually deprived of that amount, or any amount, or whether its economic interests were prejudiced or put at risk of prejudice.
 If the direct sheets presented in evidence by Charpentier, in both examination-in-chief and in cross-examination, were reviewed by Mr. Seegmiller, then it appears the inflated expense was, in fact, passed through to the project owners. These documents came from the corporate records. Only Mr. Charpentier and Mr. Seegmiller were present at meetings to discuss potential bids. But, Mr. Seegmiller was not called as a witness.
 Crown counsel argues Mr. Charpentier’s claim as to involvement of Mr. Seegmiller in the scheme is implausible. He further askes why Mr. Seegmiller would investigate the matter and then report it to the police if he was involved. The problem with this submission is that Mr. Seegmiller did not testify. Conclusions cannot be based on speculation.
 Mr. Charpentier’s testimony must be considered having regard to the documents presented and in the absence of other evidence. The documents support the proposition of excess cost being passed through to the owners. Mr. Charpentier was not receiving the compensation as set out in his employment contract. The potential for bid-rigging cannot be ignored. It is not necessary to conclude that Mr. Charpentier and Mr. Seegmiller had an agreement to pass costs to owners and divert same as compensation. But it is not so far fetched as to reject.
 Dishonesty alone is not fraud. While the evidence of Mr. Charpentier is offensive, I must conclude there is a reasonable doubt on this essential element of deprivation. Mr. Charpentier’s evidence was logical.
 As to the issue of risk of prejudice, Crown counsel argues the Seegmiller company was put in a position of liability to project owners for inflated costs due to the actions of Mr. Charpentier. The company, he says, was at risk of being sued. However, as set out in Olan, there must be proof of the risk. Here, no evidence was presented. The submission is based on speculation. Given that the Seegmiller company was the low bidder on these projects, it would be far too remote to infer a risk of prejudice.
 In result, I am not persuaded Crown counsel has proven deprivation beyond a reasonable doubt.
 In result, I find Mr. Charpentier not guilty.
R v Natkunarajaah (ONCJ)
[May 14, 2020] – Charter s.7 - Lost Evidence - Stay of Proceedings – 2020 ONCJ 247 [Justice P. Downes]
AUTHOR’S NOTE: In most circumstances, evidence has to be created, collected, and then lost for this remedy to clearly apply. Here, the circumstances were a bit more removed. The police tried to record an interview with a domestic assault complaint, but the audio failed. Also, no notes were kept of the conversation. Despite defence requests, the police did not confirm this problem existed until a week before trial. Nothing was done to preserve the complaint of the alleged victim. A stay resulted even through the trial judge found the accused guilty.
 Richard Natkunarajah is charged with two counts of assaulting his girlfriend, Nithusha Kugathasan, in October 2018. Ms. Kugathasan testified for the Crown as did her friend, Kameka Kirby-Chang. The heart of the Crown’s case is the complainant’s evidence, and the central issue on the trial proper is whether her account of being assaulted is credible and reliable such that it establishes Mr. Natkunarajah’s guilt beyond a reasonable doubt.
 The defence also applies to stay the proceedings because of lost evidence. The complainant gave a videotaped statement to the police. The audio of that statement failed to record, and the police took no steps to otherwise record the contents of the statement. There is no evidence of what the complainant said.
 Mr. Natkunarajah says that the police were unacceptably negligent in failing to preserve this evidence and as a result, his section 7 Charter right to make full answer and defence has been violated. He has been deprived of critical evidence and there is no adequate remedy short of a stay of proceedings.
 On the available evidence at this trial, I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Natkunarajah assaulted Ms. Kugathasan. I am also of the view, however, that the proceedings must be stayed. The failure to record the complainant’s statement in any meaningful way amounted to a loss of crucial evidence, and, while it was not willful or deliberate, it was unacceptably negligent. There was no other source of information available to the defence describing the allegations. The loss of this evidence prevented Mr. Natkunarajah from comparing the complainant’s viva voce evidence with what she told the police and seriously impaired his right to make full answer and defence.
 In my view, a stay of proceedings is the only meaningfully available remedy.
 Ms. Kugathasan got a tattoo. Mr. Natkunarajah did not approve and berated her for it. They spent some time driving around looking at Halloween lights, and at one point he punched her in the back of her head and smashed her face into the dashboard. He said she was stupid and was angry that she got a tattoo without telling him first. He wanted it removed. She said she had bumps on her head, but they were not visible. Later, also in the car, Mr. Natkunarajah deliberately poured coffee on her.
 The next day, Ms. Kugathasan went to a park where Mr. Natkunarajah had taken some of her property including her dog. She wanted them back. She described him approaching her in what she felt was an intimidating manner and her striking him mildly with the dog leash. She eventually called the police to report that he had taken her property. When police arrived, she gave them a statement which included telling them that he had been abusive to her on previous occasions. 3 It was after this that she went to the police station to give her videotaped statement. She and Mr. Natkunarajah broke up the following day.
 I accept Ms. Kugathasan’s evidence that she was assaulted in her car by Mr. Natkunarajah. The fact that there was no defence evidence is irrelevant to the Crown’s burden. But it also means that Ms. Kugathasan’s version of events, while tested as to its coherence and logic under cross-examination, is uncontradicted. I find that there are no obvious or unanswered problems with respect to Ms. Kugathasan’s evidence.
 I am satisfied that Mr. Natkunarajah punched Ms. Kugathasan and forced her head onto the dashboard while they were driving in October 2018. Subject to a consideration of Mr. Natkunarajah’s application for a stay of proceedings, I would find Mr. Natkunarajah guilty of one count of assault.
The Stay Application
 On October 13, 2018, D.C. Shaw met with Ms. Kugathasan to take a video and audio recorded statement. As it turned out, and unknown to anyone at the time, the audio portion did not record.
 D.C. Shaw testified that his normal practice in taking a recorded statement is to ensure that there is a second officer present to act as a “scribe” in case the video fails. As the interviewer, D.C. Shaw does not like to take detailed notes as he feels it diminishes his ability to effectively interview the witness. It is also his general practice to bring into the interview room a separate portable audio recording device, again as a failsafe in case the video recording equipment does not work. In this case, D.C. Shaw did neither of these things. It is not his practice to check the recording after the interview to see whether the recording functioned properly, and he did not do so on this occasion. Although D.C. Shaw took some notes during the interview, they were minimal and, as I understood his evidence, reflected little or nothing of the substance of what Ms. Kugathasan told him.4 [4 No one tendered a copy of the notes in evidence.]
 Early in 2019, after receiving disclosure, defence counsel alerted the Crown’s office that the audio from the interview was missing. Counsel received no response from the Crown’s office. D.C. Shaw was first made aware of the problem with the recording a week or so before the trial.
 An accused’s Charter right to make full answer and defence “will be impaired where there is a reasonable possibility that undisclosed information could have been used by the accused to meet the case for the Crown, to advance a defence or to otherwise make a decision which could have affected the conduct of the defence.”
 The following principles apply to a claim to lost evidence:
- The evidence must have existed and been disclosable under the Stinchcombe standard; the lost evidence doctrine does not apply to evidence that the police failed to gather or neglected to obtain in the first place.
- If information that the Crown would have been obliged to preserve has been lost or destroyed, the onus falls on the Crown to explain how this occurred and satisfy the court that it has not been lost or destroyed maliciously or owing to unacceptable negligence. This includes a consideration of whether the police acted reasonably in attempting to preserve it. The more relevant the evidence is, the more care should be taken to preserve it.
- Where the explanation is unsatisfactory, the Crown will have failed to meet its disclosure obligation and there will be a breach of section 7 of the Charter. There is no additional requirement to show prejudice in order to establish a breach in these circumstances.
- Even if the Crown has adequately explained the circumstances of the lost or missing evidence, there may still be a section 7 breach if “the loss of a document is so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial... The accused must establish actual prejudice to his or her right to make full answer and defence.” This has been described as an extraordinary circumstance.
- A failure to produce evidence may also be found to be an abuse of process if the conduct on the part of governmental authorities violates those fundamental principles that underlie the community’s sense of decency and fair play.
- If one or more of these breaches is established, the remedy must be found in section 24(1). The degree of prejudice is material to the fashioning of an appropriate remedy.
- A stay of proceedings is the appropriate remedy if:
- There is prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.”
- There is no alternative remedy capable of redressing the prejudice; and
- Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court balances the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interests that society has in having a final decision on the merits.”
Was the Evidence Lost?
 I disagree with the Crown that the evidence was not lost because it never existed. The Crown’s disclosure obligation includes the preservation of relevant evidence. The material evidence was the words spoken by the complainant in her interview. The police had control over this evidence at the time it was produced but failed to record it. In my view that amounts to a failure to preserve relevant disclosable information.
 The audio portion of the interview was disclosable evidence. The Crown has an obligation to provide a satisfactory explanation for its loss.
 D.C. Shaw did, however, candidly explain how he failed to preserve the content of the complainant’s statement in any other form. He did not take steps he ordinarily would when interviewing a witness, something he has done hundreds of times in his career. He did not have a second “scribe” officer, he did not use a backup audio recorder, and he did not check, after the interview, whether it had recorded properly.
 D.C. Shaw was not even aware that there was a problem with the audio until a week before the trial. He had no explanation for why he did not take the precautionary steps he typically took before a witness interview, only able to speculate that his audio recorder may have been out of batteries or he had forgotten it.
 D.C. Shaw was fair and open in his evidence. As he put it, he came to court with apologies, not excuses. He could not explain the failings but did say that this had never happened to him before in his career. I accept D.C. Shaw’s evidence. He is an experienced officer and was a credible witness. On this occasion circumstances conspired against him such that his failure to take precautionary steps ended up creating a significant problem.
 Does D.C. Shaw’s explanation satisfy the Crown’s burden of demonstrating that the loss of evidence was not a result of unacceptable negligence? In R. v. Hersi the Court of Appeal said this about assessing unacceptable negligence:
the phrase “unacceptable negligence” suggests conduct which is more than merely negligent….the reasonableness of the police conduct resulting in the loss or destruction of the evidence is a touchstone of the inquiry. The more obvious the importance of the evidence, the higher will be the degree of care expected of reasonable police officers.
 Although I am sympathetic to the situation D.C. Shaw found himself in, I nevertheless find that his failure to take the basic precautionary steps to secure the evidence amounted to unacceptable negligence. It is impossible to characterize the lost evidence as anything other than relevant and very important. Indeed, as I have said, it was the entirety of the meaningful disclosure in terms of the accused’s ability to challenge the complainant’s evidence at trial. Although D.C. Shaw’s general practice in conducting witness interviews is sound, in relation to the conduct of this interview, the Crown has not established that it was not unacceptably negligent. As a result, there has been a breach of Mr. Natkunarajah’s section 7 right.
Full Answer and Defence
 A section 7 violation can also arise out of lost evidence if it is “so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial.” Although I have found a breach because of the Crown’s failure to provide an adequate explanation for the lost evidence, I will nevertheless address this alternative basis because in my view it is the real concern here and what most clearly justifies a stay of proceedings.
 This inquiry places an onus on the accused to establish “actual prejudice to his or her right to make full answer and defence.” As Paciocco J. (as he then was) explained in R. v. Fitts, this is a curious aspect of the doctrine because it can result in a stay of proceedings in the absence of willful, malicious or abusive state conduct:
The “lost evidence” full answer and defence Charter breach appears to be more generous than the abuse of process fair trial standard would be. An abuse of process requires conduct by a state agent “that violates those fundamental principles that underlie the community's sense of decency and fair play” [cites omitted]. By contrast, the lost evidence full answer and defence breach appears to be triggered even by an explained loss of evidence, so long as the prejudice to the ability to make full answer and defence is profound enough. The two lines of authority do not sit well together.
 I have already described the how the loss of the complainant’s statement caused actual prejudice to Mr. Natkunarajah’s ability to make full answer and defence. It deprived him of one of the most significant means of testing the complainant’s credibility at trial.
 Mr. Natkunarajah seeks a stay of proceedings. A stay is granted rarely. It is a remedy of last resort that must meet the “clearest of cases” standard. It is an exceptional remedy because its effect is to deprive society of an adjudication on the merits.
 In Bero, the Court of Appeal observed that the principal considerations in determining whether a stay is warranted as a result of lost evidence are “the degree of prejudice” and “the availability of other means short of a stay to alleviate that prejudice.” The former contemplates an assessment of the nature of the lost evidence and how it might have been employed to assist an accused at trial, while the second looks at the impact of the lost evidence in light of the other evidence capable of achieving that same goal. In Bradford, the Court of Appeal described the test for assessing “actual prejudice” in this way:
The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration.
 Determining the impact of the lost evidence is, of course, problematic. Some speculation is inevitable given that it involves evaluating something that is non-existent and unknown. Nevertheless, a stay will only be justified if the applicant can “show that the lost evidence prejudiced him in a substantial or material way.”
 My review of the caselaw reveals that a stay of proceedings is not appropriate where there is an adequate substitute for the missing evidence. A stay of proceedings will generally only follow where there is no such alternative source available. In this case, the lost evidence is the only prior account given by the complainant of what she said the accused did to her, and there is no adequate substitute for it.
 In Sheng, a CAS worker took notes during a witness interview, the recording of which was lost. The Court of Appeal found that the worker’s notes, “materially lessened any prejudice to the respondent from the evidence lost from that investigation.”...
 Here, however, there are no meaningful contemporaneous notes of the complainant’s interview and no other recordings, summaries or accounts of what she said. D.C. Shaw testified that he took some notes during the interview, but they were not made part of the record, so I do not know exactly what they contained. He was not asked specifically what was included in this particular set of notes (as opposed to his general practice in taking notes), and as I understood his evidence, his notes were in any event difficult to decipher. Either way, there was no evidence of what the complainant said in her video statement.
 In my view the missing audio is not a run of the mill piece of evidence. It was, to all intents and purposes, the only meaningful disclosure capable of being provided to the defence. It was the principal means by which the complainant’s credibility and reliability could have been challenged at trial. There can be no doubting the potential impeachment value of a prior statement to an accused in cross-examining any Crown witness, much less the complainant.
 In his submissions as to Mr. Natkunarajah’s guilt on the trial proper, the Crown relied on a claim that the complainant displayed no “internal or external contradictions “in her evidence. That may have been so, but it demonstrates at least in part why the prior statement was of such potential value.
 In my view the “appropriate and just” remedy under s. 24(1) is a stay of proceedings. Nothing short of that would be capable of mitigating the prejudice to Mr. Natkunarajah’s ability to make full answer and defence.
 The proceedings against Mr. Natkunarajah are stayed.