Warning: This story details sexual assault allegations and contains graphic content.
A judge in London, Ont., has declared a mistrial in one of two court cases involving former Woodstock mayor Trevor Birtch.
Superior Court Justice Michael Carnegie ruled the Crown failed to provide relevant disclosure, violating his right to a fair trial.
Birtch was found guilty in August of assault and sexual assault in relation to allegations from 2021 involving a woman he had been in a relationship with. A sentencing date was expected to be given on Nov. 18.
The defence filed a Charter challenge on Nov. 12, arguing a mistrial should be declared because the Crown failed to disclose all relevant evidence before the trial began in May.
The only appropriate remedy was to declare a mistrial, Carnegie said during a virtual hearing on Monday.
The matter will return to court on Jan. 28 to hear submissions about the scope of the declaration and whether it should include a second sexual assault charge against Birtch that was dismissed.
At the centre of the challenge was a statement to police, dated June 2023, by a former friend of Birtch. The friend indicated she had spoken with the complainant days before Birtch was formally charged in February 2022.
The friend was later called as a witness in Birtch’s second trial for three charges of sexual assault involving a different complainant. The judge-alone trial wrapped in September and a verdict is scheduled for Jan. 15.
The defence argued proper Crown disclosure would have enabled the friend to testify in the first trial.
Carnegie said Birtch’s lawyers believed the friend “had important evidence respecting possible witness-slash-complainant collusion, and/or, could establish an improper motive to fabricate on the part of [the] complainant.”
Although the friend’s statement was disclosed by the Crown to Birtch’s lawyers in March 2024, before both trials, Carnegie said it was shared only as part of the prosecution file for the second trial, which began in September.
The justice said both trials were carried out by two different Crown counsels and disclosure in each was separated by different electronic evidence files, both accessible to Birtch’s lawyers.
Friend was known to both complainants
Birtch’s longtime friend was known to the complainants in both cases and discussed their relative allegations with each, Carnegie said.
The friend “disclosed concerns about [Birtch’s] sexual proclivities and how they may impact vulnerable persons in the community,” and was concerned about his relationship with the first complainant and that a “vulnerable member” of her family was at risk.
“She confronted [the complainant] to tell her ‘everything I know about this guy,'” including that he had been cheating on her and had talked about being sexually violent with her, Carnegie said.
The woman defended Birtch. The friend indicated she had been Birtch’s confidant and urged her to get away from him, he said.
During Birtch’s second trial, Crown prosecutors presented audio files that Birtch had sent to the friend in which he bragged about tying up and spitting on a woman during what he described as an “attic torture scenario.”
The friend testified Birtch’s audio messages “made her so sick.” He testified the friend had requested made-up and embellished stories, sexual in nature, for her to turn into a book as a Christmas present.
“Despite references to [the friend’s] communications with the [complainant], this file was not disclosed as part of the [first trial] prosecution file,” Carnegie said.
Carnegie said Birtch’s lawyers accessed the audio file of the friend’s police statement in mid-June, two weeks after the trial had ended pending a verdict. On Aug. 23, two weeks after the verdict, the Crown disclosed a transcript as part of the second trial.
In his ruling, Carnegie rebuffed a defence argument that the Crown’s failure to provide a transcript before the first trial interfered with his right to make full answer and defence.
The media file itself had been provided but was “simply ignored” until after the first trial finished, Carnegie said. Beyond accessing the file in June, Birtch’s counsel didn’t review the statement until the Crown provided a transcript.
CBC News has sought comment from Birtch’s lawyer, James Battin.
“The only uncontested evidence I have is that the defence counsel simply failed to review the [friend’s] evidence until the eve of the [second] trial, and then, I presume, realized this disclosure was also relevant to the [first trial],” Carnegie said.
Carnegie said the Crown was obligated to provide the statement for disclosure in both trials, and the Crown itself had conceded the friend’s statement was relevant to the first trial.
No evidence was given as to why it wasn’t disclosed for the first trial, Carnegie said. A competent review of the statement by the Crown would have identified its relevance.
“The Crown, not the defence, elected to prosecute these complaints separately. The Crown, not the defence, elected to structure the separate prosecutions into two distinct files.”
Support is available for anyone who has been sexually assaulted. You can access crisis lines and local support services through this government of Canada website or the Ending Violence Association of Canada database. If you’re in immediate danger or fear for your safety or that of others around you, please call 911.
