Court of Appeal for Ontario
Judges: Lauwers, van Rensburg and Trotter JJ.A.
Between
Her Majesty the Queen Respondent
and
Daniel Abreha Appellant
Counsel
Geoff Haskell, for the appellant
Susan Reid, for the respondent
Heard: April 26, 2019
Appeal Information
On appeal from the conviction entered by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury, on February 14, 2014, and from the sentence imposed on October 3, 2014.
Reasons for Decision
(1) The Conviction Appeal
1The appellant was convicted of numerous firearms offences arising out of an incident in downtown Toronto when he attempted to discard a loaded handgun. He was subsequently sentenced to five and a half years in jail, less credit for pre-sentence custody. He appeals his conviction and sentence.
2The appellant challenges his conviction on the basis that the trial judge erred in failing to grant a stay of proceedings based on the failure of the police to preserve relevant evidence, contrary to s. 7 of the Charter. In the proceedings before the trial judge, the focus was on the failure of the police to secure video footage from its own CCTV cameras and video footage from private businesses, as well as the failure of the police to ascertain the identity of, and obtain statements from, witnesses. On appeal, we are only concerned with the police CCTV footage.
3In the early morning hours of October 22, 2012, the police were patrolling an area of downtown Toronto known as the "Entertainment District". A concerned citizen approached a police officer, described a man across the street, and said that the man had a firearm in his waistband. The officer soon identified the person referred to – it was the appellant. He was talking on a cellphone while pacing back and forth on the sidewalk. After making eye contact with the officer, the appellant started to walk away.
4Two officers pursued the appellant. One of them drew his service pistol, pointed it at the appellant, and yelled at him to show his hands. The appellant did not comply. The other officer saw the appellant "fiddling with the front of his pants" as the appellant stood beside a taxi. The officer saw the appellant remove a handgun from his waistband, lower his hand to his side, and drop the handgun on the pavement. The officers tackled the appellant. Once they had him under control, the officers asked the taxi driver to move his vehicle forward. A handgun was found on the ground underneath where the taxi had been stopped.
5In the aftermath of this incident, the taxi left the scene. The driver was not identified. The concerned citizen who initially approached the police refused to reveal his identity. He too left the scene.
6On the voir dire pertaining to the application for a stay, it was "common ground" that there are police CCTV cameras in the Entertainment District. They scan certain areas and record activities. There was a CCTV camera located close to where the appellant was arrested. The trial judge found that the CCTV camera "continuously turns in a clockwise direction""rotates through a number of sectors, pausing in each for a matter of a few seconds", and zooms in and out.
7The CCTV system has limited memory capacity. The video footage captured by the system is overwritten every 72 to 96 hours. None of the officers involved in this case attempted to secure video footage from this CCTV camera.
8On the voir dire, the appellant testified that he dropped a cellphone, not a gun. He stated that he was aware of the nearby CCTV camera and told the arresting officers to check the camera footage to confirm his assertion. Both officers denied this claim, noting that the appellant remained silent during and after his arrest. The trial judge rejected the appellant's evidence on this point, and gave reasons for doing so.
9The first time that access to the CCTV footage was raised was at the preliminary inquiry, held in April of 2013. A formal request for disclosure was made in June of 2013. By that time, the footage was long gone.
10On the voir dire, the Crown produced a "sample video" from the same camera system located near the scene of the arrest. The sample video was created in late 2013. Based in part on the sample video, the trial judge found that it was unlikely that the cameras would have assisted in clarifying what the appellant dropped just before he was apprehended by the police.
11In dismissing the application to stay proceedings, the trial judge identified the framework for lost evidence applications articulated in R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.); R. v. La, [1997] 2 S.C.R. 680; and R. v. Dixon, [1998] 1 S.C.R. 244. This framework was restated in R. v. Hersi, 2019 ONCA 94, in which Doherty J.A. said, at para. 26, that the loss or destruction of evidence in the possession or control of the police will result in a breach of s. 7 when: (1) the material was disclosable under the standard set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326; and (2) the prosecution fails to show that the loss or destruction was not the consequence of "unacceptable negligence" by the police: see also La, at para. 22; and Bero, at para. 30.
12The appellant argues that the trial judge erred in the application of these principles by reversing the burden of proof. Although the trial judge's reasons may not have adhered strictly to the framework set out above, we are satisfied that he reached the correct result in finding that there was no breach of s. 7, let alone one that warranted a stay of proceedings. As Doherty J.A. said in Hersi, at para. 25, a stay of criminal proceedings "is the appropriate remedy only in extraordinary circumstances." In oral argument, counsel for the appellant acknowledged that, if there were a breach, standing alone this was not one of the clearest of cases warranting a stay of proceedings.[1] We agree with this assessment.
13Ultimately, the appellant received a remedy. In his charge to the jury, the trial judge provided an instruction on the failure of the police to preserve relevant evidence. After reviewing the relevant evidence, he said: "The effect that the unavailability of any such evidence may have on the Crown's obligation to prove the case against the accused will be for you [the jury] to say."
14This type of instruction is recognized as a remedy for failure to preserve evidence that results in a breach of s. 7 of the Charter: see Bero, at para. 67. The trial judge's instruction closely aligns with the model instruction in David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 432 (Final 43 – Lost, Destroyed or Unpreserved Evidence). To the extent that the appellant suffered any prejudice from the failure to preserve the CCTV footage, it was cured by this instruction.
15The appeal from conviction is dismissed.
(2) The Sentence Appeal
16At the hearing of the appeal, we were advised that the appellant has served his sentence. Nevertheless, he wished to proceed with his sentence appeal in the hope that the court might clarify an issue concerning the calculation of pre-sentence custody. Given that the appeal from sentence is effectively moot, we leave this issue for another day.
17Leave to appeal sentence is refused.
Signatures
P. Lauwers J.A.
K. van Rensburg J.A.
Gary Trotter J.A.
Footnote
1The appellant argued that this case, when considered alongside the case of R. v. Miniaci, 2011 ONCJ 491, discloses a pattern of conduct relating to a failure by police to secure CCTV footage from the Entertainment District. Given our finding in this appeal, it is unnecessary to consider this submission.
