R. v. Madi, 2026 ONCJ 285

ONTARIO COURT OF JUSTICE

CITATION: R. v. Madi, 2026 ONCJ 285 DATE: 2026 05 15 COURT FILE No.: Toronto 4810 998 23 48125771 4810 998 24 48107966

BETWEEN:

HIS MAJESTY THE KING

— AND —

HAROLD MADI

Before Justice M. Sean Gaudet

Heard on May 12, 13, 14, September 2, 2025

Ruling on “Lost Evidence” Voir Dire released on May 15, 2026

Counsel

M. Goldenberg..................................................................................... counsel for the Crown A. Ross................................................................. counsel for the defendant Harold Madi

Gaudet J.:

OVERVIEW

1The applicant is charged with having care and control of a conveyance while his ability was impaired by a drug and having a blood/drug concentration equal or exceeding that prescribed by regulation. He is also charged with simple possession of a Schedule 1 substance, namely methamphetamine.

2On December 6, 2023, the applicant was arrested by the Toronto Police Service (TPS) after being found slumped over in the driver’s seat of his motor vehicle parked at a busy intersection on Queen Street West, with the vehicle ignition running. The applicant was taken to Traffic Services where he was given the Drug Recognition Evaluation (DRE) demand and was administered a DRE. Based on his assessment of the applicant’s performance on the DRE, the officer concluded that the applicant was impaired by drugs and demanded that he provide a urine sample, which the applicant did. The urine sample revealed the presence of controlled drugs in the applicant’s urine, including methamphetamine.

3The trial began on May 12, 2025. During his cross-examination the officer who conducted the DRE of the applicant testified that the room in which the DRE was performed was equipped with a camera capable of video recording the DRE procedure, and he believed that the DRE was being video recorded. The officer’s evidence was contrary to information provided to the defence before trial. The defence was advised by the Crown before trial that no video of the DRE existed. After hearing the officer’s evidence, the Crown confirmed that the DRE room did have video recording capacity, but advised that due to the expiry of the applicable retention period any video recording of the DRE that may have existed was no longer available to be disclosed.

4Based on this new information the applicant brought a “lost evidence” application. He argues that the failure to preserve the video recording of the DRE violated his rights to full disclosure and his ability to make full answer and defence protected by section 7 of the Charter, and that a stay of proceedings is warranted.

FACTS

The DRE conducted of the applicant on December 6th 2023

5As noted above, on December 6, 2023 the applicant was charged by the police with operating a conveyance while impaired by alcohol or drug, having a blood/drug concentration equal or exceeding that prescribed by regulation, and simple possession of methamphetamine.

6Following the applicant’s arrest, he was taken to Traffic Services at 9 Hanna Street, Toronto, where he was taken to the DRE room. Officer Joseph Mate, who is certified as a Drug Recognition Expert, read the applicant the DRE demand and administered the DRE to him.

7Officer Mate provided a description of the DRE program as being a standardized, 12-step forensic procedure used by law enforcement to determine if a driver is impaired by drugs other than or in addition to alcohol.

8In terms of the applicant’s physical description, he described the applicant as shaky and fidgety, his face as flushed, his eyes as bloodshot, and his eyelids as droopy.

9Step 4 of the DRE consists of an eye exam. The officer testified during this exam he was looking for evidence of horizontal gaze nystagmus, vertical gaze nystagmus, and lack of convergence. Officer Mate made the following observations of the applicant:

a) the applicant was able to track his finger with his eyes;

b) the applicant showed signs of some horizontal nystagmus, but no sign of vertical nystagmus.

c) the applicant demonstrated the lack of ability to converge his eyes.

10Step 5 of the DRE are the divided attention tests. Officer Mate conducted the Modified Romber Balance Test which assesses whether there is body sway when the subject’s eyes are closed for 30 seconds. Officer Mate observed the applicant’s eyelids to flutter during this test. He also had the applicant perform the walk and turn, one leg stand, and finger to nose tests. He observed that the applicant had a lack of balance, shaking legs, and overall lack of co-ordination.

11Based on all the information gathered by Officer Mate during the DRE, he concluded that the applicant was on two classes of drugs, a Central Nervous System (CNS) stimulant and a CNS depressant. Accordingly, Officer Mate made the urine demand of the applicant, who complied and provided a urine sample which disclosed the presence of controlled substances.

Defence Counsel’s requests for disclosure of the video recording of the DRE

12It is important to note for the purpose of addressing this section 7 “lost evidence” application that counsel for the applicant, Mr. Ross, had expressly requested disclosure of the DRE video recording from the Crown prior to trial.

13In an e-mail to the Crown dated June 25, 2024, Mr. Ross requested “all available disclosure”, specifically including in his request “Booking / Breath Room / Cells videos”. The Crown acknowledged receipt of Mr. Ross’ request and provided disclosure to him electronically. However, the video of the DRE exam was not included in the disclosure.

14Defence counsel sent a further e-mail to the Crown on July 25, 2024, advising that the DRE video recording remained outstanding, and asked for it to be sent to him. Crown counsel, Ms. Goldenberg, who was also trial counsel, responded to Mr. Ross’ request the same day, advising him as follows: “There is no video of the DRE”.

15According to defence counsel, the issue of the failure to record the DRE testing procedure was also raised during a judicial pre-trial conducted in August 2024. The Crown’s explanation for the lack of a DRE video recording at that time was that video recording capacity had not been set up at Traffic Services on the date of the applicant’s arrest on December 6, 2023.

16As described below, it was only during cross-examination of Officer Mate that the Crown advised that the DRE room actually had recording capacity at the time of the applicant’s DRE. By that time, the retention period for any video-recording of a DRE conducted on December 6, 2023 had expired.

The video-recording of the DRE

17In his cross-examination Officer Mate testified that the room where DREs are conducted at Traffic Services had video recording capacity on December 6, 2023. He further testified that the video recording in the DRE room was engaged automatically and did not have to be activated manually, and that it was his belief that the DRE he conducted of the applicant was being video recorded. This is why he read the recording caution to the applicant.

18Another Crown witness, Officer Shemetova, testified to the same effect. Officer Shemetova had attended on the scene when the applicant was arrested, escorted the applicant to the DRE room and remained in the room while the DRE was conducted by Officer Mate. While she had activated her body-worn camera at the scene, she turned it off at the station except when she served the notices to the applicant. It was not activated during the DRE procedure. She also believed that the DRE was being video recorded.

19At the point of the cross examination where defence counsel began asking Officer Mate how the videorecording of the DRE would have been uploaded, Crown counsel raised an objection. The basis of the objection was that the evidence of Officer Mate on this topic was irrelevant given that the defence had been made aware by the Crown that the DRE had not been video recorded. Crown counsel advised the Court that the TPS did not video record DRE testing at the time of the DRE conducted of the applicant. If such a recording had existed, she advised that the Crown would have played a portion of it at trial.

20Crown counsel sought and was granted a recess to make further inquiries, following which she advised the Court that the practice of recording DRE exams at Traffic Services had actually begun in April 2023, i.e. several months before the DRE exam conducted of the applicant on December 6, 2023. However, given that there was a one-year retention period, any video recording of the DRE of the applicant no longer existed.

21At this point of the trial, counsel for the defendant advised the Court that he would be bringing a “lost evidence” application. The voir dire for the lost evidence application was scheduled for September 12th 2025.

22The Crown called one witness on the “lost evidence” voir dire: Ryan Tavares, a digital evidence specialist in the Digital Evidence Management Section (DEMS) of the Toronto Police Service.

23Mr. Tavares confirmed that there was video-recording technology in the DRE room on December 6, 2023, and that it was motion-activated.

24At the request of Crown counsel, Mr. Tavares had conducted a search of the Genetec video management system to try to find the video of the DRE exam conducted in the DRE room at Traffic Services on December 6 2023. He was unable to retrieve any video. He confirmed that the retention period was 365 days.

25Evidence.com is the TPS’s online digital repository used to hold all evidence and to process disclosure electronically. Mr. Tavares checked Evidence.com to see if the video recording of the DRE had been uploaded, and found no results. Mr. Tavares also checked the TPS’s video tape management system in case the video had been submitted on a physical disc, and found no results there either.

26Mr. Tavares testified that if a video recording existed, it would not have included audio.

27In cross-examination, Mr. Tavares confirmed that a disclosure request form had to be submitted to the DEMS by an officer of the TPS for his unit to manually download a video from the DRE room from Genetec and manually upload it to Evidence.com. Mr. Tavares confirmed that no disclosure request form was ever submitted for a video recording of the DRE conducted of the applicant.

28The applicant testified on the voir dire. He claimed that he wanted to be given the DRE because he believed that the DRE testing would demonstrate that he was not impaired. He confirmed that Office Mate informed him that the DRE was being recorded. The applicant disputed Officer Mate’s evidence that he had been aggressive or argumentative, and refuted Officer Mate’s description of his performance of the physical tests on the DRE. He denied having been shaky or fidgety. He was of the view that the video recording of the DRE would have shown that he was able to perform the DRE tests without losing his balance and without a lack of co-ordination. Without this evidence, it was just his word against that of an experienced police officer.

Evidentiary Gaps on the voir dire

29The evidence called by the Crown on the “lost evidence” voir dire established that efforts were made by the Crown to locate the video recording after the trial began on May 12, 2025, and that the evidence could not be located.

30However, it is important to emphasize that the Crown did not provide any evidence on the following issues:

a) There was no evidence that the video recording in the DRE room was not functioning on December 6, 2023.

b) There was no evidence explaining why the video recording of the DRE was not uploaded from Genetec to evidence.com by the TPS once the applicant was charged.

c) There was no evidence explaining what steps, if any, were taken by the police or the Crown to secure the video recording of the DRE after the applicant was charged.

d) There was no evidence explaining what steps, if any, were taken by the Crown to secure the video recording of the DRE after defence counsel specifically requested disclosure of it on June 25, 2024, and July 25, 2024.

e) There was no evidence from the Crown explaining the reason why Crown counsel informed defence counsel on July 25, 2024 that “there is no DRE video”.

Factual Findings

31Based on the totality of the evidence, I conclude on a balance of probabilities the following for the purpose of this “lost evidence” application:

a) that the DRE room had video-recording capacity on December 6, 2023.

b) that the video recording was motion-activated and automatically recorded without having to be activated by anyone.

c) that the video recording capacity was engaged when the DRE was conducted of the applicant on December 6, 2023.

d) that a video recording of the DRE conducted of the applicant was generated in the Genetec system.

e) that the video recording was only retained in the Genetec system for a period of one year, and that it was erased by December 7, 2024.

f) that the TPS did not submit a disclosure request form for the video recording to be uploaded to Evidence.com.

g) that counsel for the defence sought disclosure of the video recording of the DRE of the applicant on June 25 and July 25 2024, i.e. at a time when the video recording would have still existed in the Genetec system and could have been produced; and

h) that Crown counsel informed defence counsel that there was no video of the DRE.

THE CROWN BREACHED ITS DUTY TO DISCLOSE

32It is well-established that the Crown has a duty to disclose all relevant information its possession, whether inculpatory or exculpatory, regardless whether the Crown intends to rely on it. 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 is a principle of fundamental justice protected by s. 7 of the Charter (R v. La, 1997 309 (SCC), [1997] 2 SCR 680 at para 23, citing R. v. Carosella (1997), 1997 398 (SCC), 112 C.C.C. (3d) 288 at para 37)

33The Crown’s duty to disclose entails an obligation to preserve relevant evidence. An accused’s right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant (R v. La, supra, at para 20).

34Despite the best efforts of the Crown, evidence will occasionally be lost or destroyed due to “the frailties of human nature”. Where the existence of certain information has been identified but is has been destroyed or lost, it falls to the Crown to justify its non-disclosure by satisfying the Court that the evidence has not been destroyed or lost because of unacceptable negligence (R. v. La, supra, at para 20).

35The greater the relevance of the evidence, the greater the degree of care that is expected for its preservation.

36If the Crown can satisfy the Court that the loss of the evidence was not due to unacceptable negligence, the duty to disclose will not have been breached. To make this determination, the Court must analyze the circumstances surrounding the loss of the evidence and assess whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure to the defence (R. v. La, supra at paras 20-21).

37As a threshold issue, the Crown argues that the applicant bears the onus of proving that the video recording was “lost,” and that it has not met that burden because he cannot prove that it existed in the first place. If the video recording never existed, it could not have been “lost.” According to the Crown, at its highest, the evidence of Officers Mate and Shemetova was that they simply believed that the DRE had been video-recorded. Neither witness had viewed a video recording of the DRE, and the evidence does not establish that a video recording existed.

38I am satisfied that the applicant has established on a balance of probabilities that a video recording of the DRE existed. Officer Mate’s evidence was that the DRE room had recording capacity that was motion-activated, and that he proceeded with the DRE on the understanding it was being recorded. He told the applicant at the time that the DRE was being recorded. Mr. Tavares confirmed that the video recording in the DRE room was automatically engaged. No evidence was presented by the Crown that the video recording capacity was not functional on the date the DRE was conducted of the applicant. In the absence of such evidence, the logical inference based on the evidence presented is that the video recording technology was functioning properly and a video recording of the DRE was made, not the opposite.

39I also find that it ill behooves the Crown to take the position that the applicant has not proven that the video recording ever existed, when she informed applicant’s counsel on July 25, 2024 that the video recording did not exist, at a time when the video recording could have been downloaded from the Genetec system because the retention period had not yet expired. As noted above, the Crown called no evidence explaining the source of the Crown’s information that the video recording did not exist. No evidence was called detailing inquiries made by Crown counsel of the police about the existence of the video recording. It may be that Crown counsel was originally informed by the police that the DRE room did not have recording capacity as early as December 6, 2023, as she initially advised the Court. However, no evidence was called to this effect.

40The Crown also argues that the application should be dismissed because the police had no Charter-imposed obligation to record examinations conducted in the DRE room. This submission misses the mark. It was not suggested that the police’s failure to videotape the DRE violated the applicant’s section 7 rights. It was that if the DRE was video recorded, the video recording was not preserved and disclosed despite its obvious relevance, and its disclosure having been requested within the one-year retention period. To reiterate, no explanation was provided on the voir dire to explain why the video recording was not retained by the police, or whether the Crown made any efforts to secure it after its disclosure was requested by the applicant’s counsel.

41The Crown further argues that there is no basis to conclude that the video recording is likely relevant in the sense that it would have likely assisted the applicant in refuting the evidence of Officer Mate, because it is merely speculative that the video recording would have supported the applicant’s description of his performance in the drug recognition evaluation. This may be so, but that does not detract from the evidence’s obvious relevance. The video recording was important evidence that the Crown was required to disclose. It would have depicted the applicant during the course of the DRE, and provided some evidence as to whether he was able to perform aspects of the DRE.

42The DRE video recording had no audio component. At the end of the day, it may not have assisted the applicant. It may in fact have corroborated the evidence of Officer Mate. Nevertheless, the police had a clear obligation to preserve it, and Crown had a clear obligation to disclose it.

43The charges were laid against the applicant immediately after the incident, following the DRE. The police knew that the DRE room was video recorded. The police’s failure to download the video recording to the Genetec system within the 12-month retention period, thereby preserving it for future disclosure to the applicant was clearly negligent.

44The Crown has given no explanation why the video recording was not downloaded from Genetec, why the police did not upload it to Evidence.com, or the basis for the Crown’s assertion on July 25, 2024 that it did not exist. Given the importance of the video recording evidence and viewed objectively, the failure to preserve and disclose it had the potential to impact the fairness of the trial process (R. v. Vu, 2013 ONSC 2183 at para 56).

45The Court’s task on this voir dire was to consider the circumstances surrounding the loss of the evidence and whether the police acted reasonably in attempting to preserve it. The Crown bore the onus of explaining why the video recording was lost. The Crown failed to provide any evidence as to whether any steps were taken to locate or preserve the videorecording, or to explain why Crown counsel advised Mr. Ross on July 25, 2024 that it did not exist. Where the Crown gives no explanation why the evidence was lost, the Crown has failed to meet its disclosure obligation (R. v Sheng, 2010 ONCA 296 at para 34).

46Accordingly, I find that the Crown has not met its onus on this “lost evidence” voir dire. I find unacceptable negligence on the part of the police and Crown in failing to ensure the preservation and disclosure of the video recording. This has resulted in a violation of the applicant’s section 7 Charter right to disclosure and to make full answer and defence (R. v. Sheng, supra, at para 34).

REMEDY: A STAY OF PROCEEDINGS IS WARRANTED

47The applicant seeks a stay of proceedings, a remedy that is granted only in the “clearest of cases”. Two conditions must be met for a stay to be ordered: 1) the prejudice caused to the applicant will be manifested or perpetuated through the conduct of the trial or its outcome, and 2) no other remedy is reasonably capable of removing the prejudice (R. v. Cloutier, 2011 ONCA 484 at para 71). To justify a stay the applicant had to show that the lost evidence prejudiced him in a substantial or material way (R v. Sheng, supra, at para 46).

48In R. v. Bero, 2000 16956 (ON CA), [2000] OJ No 4199 at para 48, the Court of Appeal observed that the principal considerations in determining whether a stay is warranted because of lost evidence are “the degree of prejudice” and “the availability of other means short of a stay to alleviate that prejudice.” A stay of proceedings is not an appropriate remedy where there is an adequate substitute for the missing evidence.

49When evidence is lost, assessing prejudice is invariably problematic and to some degree speculative given that this involves evaluating something that is non-existent and unknown.

50In my view there was an air of reality to the applicant’s claim that the video recording would have assisted him in a material way, and that its loss resulted in prejudice to the applicant in conducting his defence. The video recording of the DRE was highly important evidence. It is the principal evidence that would have allowed the applicant to challenge Officer Mate’s observations and conclusions, as it would have provided the only truly objective record enabling the applicant to challenge the credibility and reliability of Officer Mate’s testimony.

51The video recording would have shown how the applicant performed on the physical components of the DRE, and whether Officer Mate’s description of his performance accorded with the video recording. For example, it would have shown whether the applicant was fidgety and shaky, whether he was able to maintain his balance as he was doing the walk and turn, whether his leg was shaking as he was performing the one leg stand, and whether he demonstrated a lack of co-ordination.

52Given that there was apparently no audio component, the video recording may not have proven to be as useful in refuting Officer Mate’s evidence that the applicant was argumentative and aggressive, but it may have been useful to the applicant in challenging Officer Mate’s evidence on this issue as well.

53There is no other evidence that recorded the DRE other than the testimony of Officer Mate. The Crown argued that there was other evidence available to the applicant to challenge Officer Mate’s testimony that would have been an adequate substitute for the DRE video recording. Specifically, she suggested that the applicant could have cross-examined Officer Shemetova about the applicant’s performance on the DRE, given that she was in attendance in the DRE room.

54I reject this argument. Cross-examining Officer Shemetova would have been an inadequate substitute for the DRE video recording, which would have provided objective evidence of the applicant’s performance. Officer Shemetova’s body-worn camera was turned off during the DRE because she believed that the DRE was being recorded. There was no suggestion that she was familiar with the DRE testing procedure in any way. This was her first arrest of a person accused of impaired by drug. She had never observed a DRE. Unlike Officer Mate, she was not a certified Drug Recognition Expert and was not trained on what to look for in forming an opinion about impairment by drugs. Cross-examining her to challenge Officer Mate’s observations and findings would have proven futile.

CONCLUSION

55The Crown’s failure to preserve and disclose the DRE video recording has prejudiced the applicant’s section 7 right to make full answer and defence. Given the importance of this evidence the only remedy available to removing the prejudice to the applicant is a stay of proceedings.