Mistrial declared in former Woodstock mayor’s first sex assault trial

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Woodstock’s disgraced former two-term mayor will get a second chance at his first sexual assault trial.

A mistrial has been declared for Trevor Birtch, 49, the former mayor convicted in June of one count of sexual assault and one count of assault involving a 45-year-old former girlfriend in 2021.

On Monday, the judge who convicted him decided Birtch’s Charter rights had been breached because the Crown did not properly disclose critical evidence used at Birtch’s second trial in September that could have been applied in the first case.

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“Overall, I believe the appropriate remedy to address this Charter breach is, as requested, a mistrial,” said Superior Court Justice Michael Carnegie, adding “a meaningful redress of this Charter breach is required to ensure that the principle of justice and the right to make full answer to defence is truly respected.”

Bitch served as the top elected official of Woodstock until he was trounced at the polls in 2022, after the allegations of sexual misconduct surfaced.

Defence lawyer James Battin brought forward the mistrial application Nov. 12, two months after the completion of Birtch’s second Superior Court trial, involving a 39-year-old woman Birtch was seeing at the same time as the complainant from the first trial.

There were two separate police investigations. The Crown made a decision to try the two cases separately with two separate Crowns and with two sets of disclosure for Battin, who represented Birtch at both trials.

Included in both sets of disclosure was the audio of a police statement by a former friend and confidante of Birtch, who testified at the second trial, but not at the first.

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At the second trial, the friend testified and verified audio and text message sent to her by Birtch in December 2021 that included descriptions of sexual torture he said he inflicted upon the second complainant.

Battin argued at the second trial there was a conspiracy by a group of women to humiliate Birtch and Birtch had exaggerated and embellished the descriptions because he believed the friend was writing a book about his sexual exploits.

The friend agreed during her testimony she was in contact with the complainant in the first trial. Charges were laid against Birtch in February 2022 regarding that complainant just four days after the friend spoke to the complainant.

Carnegie reviewed what the friend told the police she told the complainant at the first trial: that she had concerns about Birtch’s “sexual proclivities and how they may impact vulnerable persons in the community”; about the first complainant’s relationship with Birtch: that Birtch was talking behind the complainant’s back and he said “very terrible, awful unhinged things about her” and he had been sexually violent with her.

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The complainant defended Birtch, said she loved him and vowed to stand by him even after the friend implored her to get away from him. However, within a week, he was charged.

The audio statement was not disclosed by the Crown to the defence until March 15, 2024. There was no transcript of the statement in the disclosure file for the first trial, but it was placed in the file for the second trial in September.

That was a problem. Battin didn’t access the audio file until June 13, 2024, 15 days after Birtch’s first trial ended. The transcript was a courtesy but wasn’t disclosed until Aug 23, 2024, and the Crown indicated it would be calling the friend as a witness at the second trial.

The transcript wasn’t disclosed until 16 days after Carnegie gave his judgment. The mistrial application for the first trial was filed at the end of the second trial.

Battin argued the Crown failed to provide proper disclosure of the evidence for the first trial and there was no transcript made available, while assistant Crown attorney Artem Orlov told Carnegie the Crown did nothing wrong and the audio statement was there for review.

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Carnegie said the argument that a transcript had to be provided to the defence “was absurd.” However, the Crown was clumsy in its disclosure obligations because of the two separate police investigations. Evidence collected for one investigation wasn’t necessarily shared with the evidence of the second investigation.  The “lack of targeted disclosure” meant the friend’s police statement wasn’t initially available for the first trial.

“When disclosure was made, it was made separately to defence counsel, not globally with respect to the applicant himself. I find, now, that the Crown cannot, now after the fact, point to the applicant‘s consistent legal representation as a means of excusing proper, targeted disclosure,” Carnegie said.

Because the defence didn’t review the statement until after the first trial ended, there was no way to argue the evidence was relevant, Carnegie said.

“The only uncontested evidence I have is that the defence counsel simply failed to review the evidence until the eve of the (second) trial and then, I presume realized that this disclosure was now relevant to the (first) trial matter,” Carnegie said.

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That doesn’t absolve the Crown, Carnegie said. “It doesn’t diminish the fact that the Crown failed to provide proper and targeted disclosure for the (first) prosecution,” and resulted in breach of Birtch’s Charter rights.

The friend’s evidence, Carnegie said, was relevant in the first case, particularly in addressing the complainant’s credibility and could have factored into his analysis “which was central to the findings made.”

Reopening the trial was not an option, the judge said, because the friend’s evidence “would be intertwined into the narrative requiring its substantive reconstruction. It would potentially significantly my former analysis of the parties’ credibility overall.

“The only remedy that made sense was to declare a mistrial,” Carnegie said. Birtch’s defence only asked for a mistrial on his two convictions, but he asked for submissions about whether any new trial would include Birtch’s third count, another sexual assault for which he was acquitted, should be part of a new trial.

The case will return for that discussion on Jan. 28.

Meanwhile, Birtch faces judgment from Superior Court Justice Spencer Nicholson for the second trial on Jan. 15.

A separate impaired driving count is slated to return to Woodstock court on Feb. 11.

jsims@postmedia.com

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