Sentencing delayed as former Woodstock mayor seeks mistrial

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Instead of facing a sentencing hearing next week, the former mayor of Woodstock wants a do-over of his first sexual assault trial.

Trevor Birtch, 49, was in front of the judge at his first trial earlier this year with a mistrial application, arguing evidence disclosed in his second sexual assault trial wasn’t properly disclosed by the Crown to his defence lawyer for his first trial.

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“It’s hard not to scratch my head when I read the scenario,” said Superior Court Justice Michael Carnegie at the beginning of the hearing.

Carnegie was set to hold a sentencing hearing for Birtch on Nov. 18, after he convicted the disgraced two-term mayor of one count of assault and one count of sexual assault of a former girlfriend in 2021 when he was still mayor.

But, at the end of Birtch’s second trial in September involving a 39-year-old woman he was seeing at the same time as the victim in the first trial, defence lawyer James Battin indicated to Justice Spencer Nicholson he would seek a mistrial for the first decisions made by Carnegie.

Carnegie was told Tuesday the issue is the evidence of Birtch’s former friend who testified in the second trial, but was not called for the first trial.

The evidence at the second trial included audio and text messages sent to her by Birtch in December 2021 that contained graphic violent descriptions of sexual torture, including an account of locking the complainant in his attic, tying her up and torturing her.

Battin argued at the second trial the accounts were embellished and exaggerated because the friend was writing Birtch a book about his sexual exploits. And he said there was a conspiracy by a group of women to humiliate him.

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During the second trial, the friend agreed she was in contact with the victim in the first trial. Charges were laid against Birtch four days after she had spoken to the victim.

But that conversation, or evidence from the friend, wasn’t called in the first trial. Battin told Carnegie the transcript of the friend’s evidence was part of the Crown’s disclosure for the second trial, but wasn’t included in the package he received to prepare for the first trial.

And, Battin suggested, the evidence could indicate the mayor’s friend was not a confidante, but an agent collecting incriminating evidence against the former mayor.

The friend gave a police statement in June 2023 about both cases. “We did not know in this trial what impact (the friend) had because we didn’t know at that time that she was involved with (the victim) at all.”

Battin said Carnegie doesn’t know if the conversation the friend had with the victim from the first trial influenced her decision to have charges laid. It might have influenced the judge’s assessment of the victim’s credibility if that evidence had been called.

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There were two separate Crown attorneys handling the trials and two investigating officers dealing with the matter, and the absence of the evidence from the first trial might have been an oversight, Battin said.

But Carnegie noted the audio of the friend’s statement was disclosed before the first trial, not the transcript, and he could have used it for cross-examination in the first trial.

Reopening the trial would be impossible. If Carnegie agrees with the defence, he could either declare a mistrial or stay the charges.

Assistant Crown attorney Artem Orlov said he and the defence have “a fundamental disagreement as to what is disclosure and what is non-disclosure.”

He argued Carnegie should forge ahead with sentencing because the audio of police statement was shared with Battin – the lawyer handling both trials – even if it was only for the second trial file. It’s on the defence to review all of it.

But Carnegie said it appears the information had some relevance for the first trial. “This doesn’t become an issue if Crown disclosure is perfect, but it wasn’t.”

He said to the Crown trial judges are “greedy” about evidence so they can analyze the entire picture. “We want it all so I can have the best possible decision available to us,” he said.

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“I want it all so I can make the most informed decision I can possibly make. Because of it’s potential, it could have been significant.”

Carnegie also questioned why the issue wasn’t raised sooner by the defence when the trial could have been reopened and before his decision in the first case in August.

“This is quite the mess. It’s still a mess,” Carnegie said after listening to the arguments.

He cancelled Birtch’s upcoming sentencing hearing and will return Dec. 12 with a decision on the mistrial application.

jsims@postmedia.com

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