DATE: 20040901
DOCKET: C39745
COURT OF APPEAL FOR ONTARIO
WEILER, LASKIN and FELDMAN JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Michal Fairburn, for the appellant
Appellant
- and -
VALERIE DULUDE
Donald J.C. Elliot Q.C., for the respondent
Respondent
Heard: February 6, 2004
On appeal from the order of Justice John H. Brockenshire of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated February 26, 2003, dismissing the appeal against the stay of proceedings entered by Justice Anne E. McFadyen of the Ontario Court of Justice, dated April 15, 2002.
LASKIN J.A.:
A. Overview of the appeal
[1] This is a Crown appeal against a stay of proceedings, granted because a security videotape was not disclosed to the defence and was later erased.
[2] Just after 3:00 in the morning on April 22, 2001 the respondent, Valerie Dulude, was pulled over by the police for driving erratically on a city street in Sarnia. The officer who stopped her smelled alcohol on her breath and observed other signs of impairment. He arrested her for impaired driving, cautioned her and made a demand for a breath sample.
[3] The officer took Ms. Dulude to the Sarnia police station, and put her in a room where a breathalyser technician could administer a breath test. The technician tried seven times to obtain a suitable sample of her breath. Each time, the machine registered “deficient sample”. Ms. Dulude was then charged with failing to comply with a demand for a breath sample.
[4] On May 28, 2001, just over a month after the charges were laid, Ms. Dulude’s defence counsel requested disclosure, including copies of all “videotapes”. No videotape was given to the defence. Four and a half months later, on October 10, 2001, defence counsel asked specifically for disclosure of “a copy of the videotape of breath samples being taken from my client”. He was told that none was available. Videotapes are used at the Sarnia police station only for safety and security, and are routinely re-used after sixty days.
[5] At the beginning of her trial, Ms. Dulude applied for a stay based on the destruction of the security videotape. The trial judge, McFadyen J., granted the application. She held that the videotape was relevant, the Crown had not explained why it had been destroyed and, therefore, Ms. Dulude’s right to make full answer and defence and her right to a fair trial had been compromised contrary to s. 7 and s. 11(d) of the Charter. A stay was appropriate in the trial judge’s view because proceeding without the videotape would bring the administration of justice into disrepute.
[6] The Crown’s appeal to the Summary Conviction Appeal Court was dismissed. In brief reasons, Brockenshire J. said he was not persuaded that the trial judge was “clearly wrong”.
[7] The Crown now appeals to this court on three grounds:
The security videotape did not have to be disclosed because it was not relevant;
Even if the videotape was relevant, the Crown’s failure to disclose it did not breach Ms. Dulude’s Charter rights because the defence failed to make a timely request for the videotape, and because the Crown was not unacceptably negligent in erasing it; and
Even if Ms. Dulude’s Charter rights were breached, a stay was inappropriate.
[8] I would uphold the trial judge and Summary Conviction Appeal Court judge on the first two grounds of appeal. However, I agree with the Crown on the third ground. A stay was unjustified. A lesser remedy is available to address what I consider to be minimal prejudice from the loss of the videotape.
[9] Before dealing with the Crown’s submissions I wish to comment briefly on the procedure adopted by the trial judge. The defence moved for a stay at the outset of the trial, as it was entitled to do. However, as the appropriateness of a stay was not obvious, the trial judge properly reserved on the motion until all the evidence had been heard. She and this court therefore had the benefit of a full record in assessing the degree of prejudice caused by the loss of the security videotape. See R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.) at para. 18.
B. Discussion
First Issue: Is the security videotape relevant?
a. What the videotape shows
[10] The Crown must disclose only relevant information. The relevance of the security videotape depends on what it shows, on the issues in the case, and how the one relates to the other. I therefore begin with a brief discussion of the evidence about what the videotape shows.
[11] A video monitoring system was in use at the Sarnia police station in April 2001 when Ms. Dulude was charged. The Crown’s witness, Staff Sergeant Devereux, gave evidence that the system is “not designed to capture evidence”; instead, its purpose is to protect the safety of officers and prisoners, and the security of the building.
[12] The security taping system consists of sixteen cameras, connected to a central terminal located at the front of the police station. The cameras focus on different locations in the building, including the sally port, holding cells and “various rooms where detained persons may be taken”. Visual monitors are kept at the front desk. The video equipment does not monitor or record sound.
[13] Significantly, the system does not provide for continuous taping of any of the sixteen cameras. Instead, the images taken from all sixteen cameras are stored on one tape. The tape records one second views in sequence of the sixteen video cameras. If one were to video an accused detained in a room at the station, the tape would show a series of single photo frames about fifteen seconds apart.
[14] Each tape runs constantly for twenty-four hours, and is changed at midnight each evening. Under the Sarnia Police Services retention policy the security tapes are kept for sixty days and then taped over. After a year all tapes are destroyed and a new set is put in circulation.
b. Relevance
[15] The arresting officer testified that he believed there was a video camera in the breathalyser room where Ms. Dulude was detained. Relying on this testimony and the evidence of how the system worked, the trial judge concluded that the videotape was relevant and should have been disclosed to the defence:
If one were to review a representative tape as we were given the opportunity, in relation to the tape that was brought by Staff Sergeant Devereux, it is quite clear that the tape in its form as shown, shows a very brief vignette at each particular station. The vignette, however, if there is in fact movement occurring within the vignette, would record that movement. Officer Devereux also testified that the tape, although it proceeded on illustration to move extremely quickly, could be slowed down...
It is common between the parties that there was a video tape available on that particular date and if it had been presented today and if it in fact had captured Ms. Dulude at any of their different stations, it might have presented evidence which would have allowed the officers to refresh their memory, perhaps to confirm their testimony, or to assist Ms. Dulude in her cross-examination of the officers and as well to provide full answer in defence to the allegations that had been put forth in the examination in-chief of the officers. As indicated the tape no longer exists.
[16] In her persuasive submissions for the appellant, Ms. Fairburn contends that the trial judge was wrong in stating that the trial Crown had acknowledged the relevance of the videotape and wrong in concluding that the tape could be relevant to the charges against Ms. Dulude – impaired driving and failing to provide a breath sample.
[17] I agree with Ms. Fairburn to this extent. The trial judge misapprehended the position of the trial Crown. There was no common ground on relevance. In his submissions, the trial Crown argued that the videotape was irrelevant.
[18] Also, in my view, at its highest the videotape was only marginally relevant. It produces what amounts to still photographs of a particular location in the police station once every fifteen seconds. Moreover, although the breathalyser room had a camera, no evidence was led about where it was placed in the room or what part of the room was videoed.
[19] I find it difficult to see how these one-second vignettes placed fifteen seconds apart could be more than minimally helpful in challenging the evidence of the prosecution’s two witnesses, the arresting officer and the breathalyser technician. The arresting officer testified that Ms. Dulude was “not making a complete seal on the mouthpiece” and that “her hair was blowing out beside her face as she was trying to provide the sample”. The breathalyser technician observed signs Ms. Dulude was impaired, including slow movements and watery, bloodshot eyes. He also said that she was puffing out her cheeks and lips, that her hair was untied and blowing, and that he could hear air escaping from around her mouthpiece. The tape was unlikely to capture the appearance of Ms. Dulude’s eyes, her gait, her blowing hair or her refusal to blow. Indeed, refusals to blow typically do not occur in a second or two, but over an extended period of time.
[20] Of course, as Ms. Fairburn points out, if the tape were different or if the charge were different the defence would have a much stronger argument on relevance. For example, if there were a continuously running videotape of what went on in the breathalyser room, that tape would be highly relevant to the charges against Ms. Dulude. Or, if the charge were an assault in custody then even the one-second vignettes at intervals could be relevant in showing two people in the room and the existence or absence of noticeable injuries.
[21] That said, I am not inclined to disturb the trial judge’s finding that the security videotape was relevant. I am not inclined to do so for three reasons.
[22] First, although she misunderstood the Crown’s position, the trial judge gave other reasons for her finding of relevance, and that finding is entitled to deference in this court. Second, the case law from the Supreme Court of Canada has repeatedly emphasized that the relevance threshold is very low: in the words of Cory J. in R. v Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244 at para. 23, the right to disclosure “... includes material which may have only marginal value to the ultimate issues at trial”; and in the words of Lebel J. in R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, “little information will be exempt from the duty that is imposed on the prosecution to disclose evidence” (at para. 60 ).
[23] Third, though perhaps of lesser importance, as Libman J. noted in R. v. Hakkarainen (2003), 112 C.R.R. (2d) 24 (Ont. C.J.), security videotapes are “routinely made the subject of disclosure requests accepted and processed by the Crown Attorney’s office” (at para. 20).
[24] Although I would not disturb the trial judge’s finding that the security videotape was relevant and ought to have been disclosed to the defence, I consider its relevance to the charges against Ms. Dulude to be marginal. As I will discuss, the tape’s marginal relevance becomes a critical factor in devising the appropriate remedy for this lost piece of evidence.
Second issue: Did the Crown’s failure to disclose the security videotape breach Ms. Dulude’s rights under s. 7 and s. 11(d) of the Charter?
[25] Even accepting that the security videotape was relevant, the Crown puts forward two arguments why the failure to disclose it did not breach Ms. Dulude’s Charter rights: first, the defence failed to make a timely and specific request for its disclosure; and second, the Crown was not unacceptably negligent in erasing it. I do not agree with either argument.
[26] In R. v. Bero, supra, at para. 29, Doherty J.A. observed that the defence’s failure to pursue disclosure with reasonable diligence may militate against a claim that non-disclosure resulted in a breach of an accused’s Charter rights. The Crown relies on this observation and on other case law suggesting the defence has an obligation to pursue disclosure diligently. See, for example, R. v. Dixon, supra, at paras. 37-38 and R. v. Bramwell (1996), 1996 352 (BC CA), 106 C.C.C. (3d) 365 at para. 33 (B.C.C.A.), aff’d 1996 156 (SCC), [1996] 3 S.C.R. 1126. It argues that where the relevance of information is not immediately obvious – and it puts the videotape in this category – an accused who does not make a timely and specific request for disclosure cannot later claim a breach of s. 7 of the Charter.
[27] Here, in May 2001, well before the videotape had been erased, the defence made a timely written request for disclosure in the following terms:
Would you also please provide us with copies of all witness statements, officers’ notes, videotapes, notebooks, occurrence reports, memorandum, criminal records and convictions and any other documents in your possession relating to this matter [emphasis added].
[28] The Crown labels this letter a “boiler plate request” for disclosure, which it could not reasonably interpret to apply to the security videotape. It contends that the defence’s later specific request for the videotape was not timely because it was made in October 2001, well after the tape was erased.
[29] This case does not require a general discussion of the Crown’s submission on the appropriate degree of specificity of a defence disclosure request. A simple and direct answer to the Crown’s argument lies in the trial judge’s finding. She found that the defence’s May 2001 request for disclosure of all videotapes was sufficient to trigger the Crown’s obligation to obtain a copy of the security videotape and turn it over to counsel for Ms. Dulude. I would not interfere with this finding. The Crown led no evidence that it even made inquiries about a videotape and it does not suggest that tactical considerations motivated the generality of defence counsel’s initial disclosure request.
[30] Even if relevant evidence is not disclosed and then irretrievably lost or destroyed – as the videotape was in this case – an accused cannot claim an automatic breach of her constitutional right to disclosure and, thus, to her right to make full answer and defence under s. 7 of the Charter, or of her constitutional right to a fair trial under s. 11(d). Courts recognize that because of “the frailties of human nature, evidence will occasionally be lost”: See R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680 (S.C.C.) at para. 20. A Charter breach will be established only where relevant evidence is lost because of the Crown’s unacceptable negligence.
[31] Here, the appellant submits that the Crown was not unacceptably negligent in erasing the videotape. The trial judge implicitly rejected this submission in holding that the Crown did not explain why it failed to obtain a copy of the videotape.
No evidence was provided to this court as to whether the prosecution turned its mind to the existence of such a video tape and no explanation was provided as to why a request was not made for such a tape of the Sarnia Police Services, so this court is somewhat left in the dark as to how the request for this particular aspect of disclosure was handled by the Crown and why inquiries were not made of Sarnia Police Services.
[32] Again, I would defer to this finding. The Crown had an obligation to explain why the tape was not disclosed before it was erased. Yet the Crown gave no explanation. See La, supra, at paras. 20-21. Without an explanation, this court cannot be satisfied the Crown has met its burden of showing the loss of the tape was not due to unacceptable negligence.
[33] For these reasons, I am not persuaded that the trial judge and the Summary Conviction Appeal Court judge erred in holding that the Crown breached Ms. Dulude’s Charter rights.
Third Issue: Was a stay the appropriate remedy?
[34] An order for a stay of proceedings is a discretionary remedy and, for that reason, ordinarily is entitled to deference from a reviewing court. However, this stay warrants no deference because in ordering it the trial judge committed two material errors. First, she wrongly analyzed the appropriateness of the stay under s. 24(2) of the Charter. That section deals with whether evidence obtained in breach of the Charter ought to be excluded from a trial. Whether a stay is appropriate must be analyzed under s. 24(1) of the Charter – “an appropriate and just” remedy “in the circumstances” – and in the light of the well-established jurisprudence for granting one. Second, the trial judge failed to apply the stringent “clearest of cases” standard for granting a stay. The Summary Conviction Appeal Court judge did not seek to justify the stay on a different basis. He simply said that in staying the proceedings the trial judge was not “clearly wrong”.
[35] I disagree with the Summary Conviction Appeal Court judge. In my view, even if the trial judge’s stay order is entitled to deference, I consider it so “clearly wrong” that this court is justified in interfering with it.
[36] I therefore consider the appropriateness of a stay afresh. A stay is a remedy of last resort, rarely granted because both the accused and the community are entitled to a verdict on the merits. A stay because of the Crown’s failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices either the accused’s ability to make full answer and defence, or the integrity of the administration of justice. See R. v. Bero at para. 42; R. v. Leduc (2003), 2003 52161 (ON CA), 176 C.C.C. (3d) 321 (Ont. C.A.) at para. 99; R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 at para. 68; and R. v. La, supra, at para. 23.
[37] In this case, the integrity of the justice system has not been prejudiced. The defence has not alleged that the Crown intentionally erased the tape to avoid disclosure or that erasing the tape reflected a “systemic disregard for the prosecution’s obligation to preserve relevant evidence”: See R. v. Bero, supra, at para. 45. Nothing in the record would support such allegations.
[38] Therefore, whether a stay is warranted turns on the effect of the lost videotape on Ms. Dulude’s ability to make full answer and defence and, therefore, on her ability to have a fair trial. The main considerations are the degree of prejudice to Ms. Dulude caused by the loss of the security videotape and whether the prejudice that does exist can be alleviated by means short of a stay: See Bero at para. 48.
[39] Because the security videotape has been irretrievably lost, assessing the degree of prejudice is, to some extent, speculative. However, as I have already discussed earlier in these reasons, at best the videotape was marginally relevant to the defence. Correspondingly, the prejudice from its loss is minimal. Certainly, its loss does not irreparably prejudice Ms. Dulude’s ability to make full answer and defence or her right to a fair trial. Therefore, a stay is not warranted. Another remedy short of a stay is readily available to alleviate any prejudice.
[40] If the defence believes it has been prejudiced by the loss of the videotape it should be allowed to put before the trial judge evidence that the Crown failed to preserve and disclose the videotape despite its obligation to do so. The defence should also be allowed to lead evidence about how the tape may have assisted Ms. Dulude in raising a reasonable doubt about her guilt on the two charges she faced, or in showing how the Crown had failed to meet its burden of proof. The trial judge will then be able to assess the significance, if any, of the lost evidence.
[41] My proposed remedy is similar to the remedy ordered by Doherty J.A. in Bero. Indeed, his judgment in Bero shows just how inappropriate a stay is in this case. In Bero, the accused was charged with impaired driving causing bodily harm and driving “over 80”. The charges arose out of a car accident in which the accused and a man named Mills were thrown from the car and injured. The sole issue at trial was the identity of the driver. Mills, the main Crown witness, testified that the accused was the driver. Forensic testing of the car may well have established who the driver was. However, the Crown had inadvertently permitted the car to be destroyed before the defence had an opportunity to examine it. The defence sought a stay.
[42] This court held that the destruction of the car caused a breach of the accused’s rights under s. 7 of the Charter. However, even though the car was potentially highly relevant and, therefore, its loss was potentially highly prejudicial to the defence, the court did not order a stay. Instead, it ordered that at the new trial the defence should be allowed to lead evidence that the Crown failed to preserve the car despite its obligation to do so, and that forensic testing on the car might have assisted in determining the identity of the driver. In Doherty J.A.’s words, at para. 54, “had the defence been allowed to make these points and to relate them to its position that the Crown had failed to discharge its burden of proof, the prejudice caused to the appellant would have been substantially reduced.”
[43] If the destruction of the car in Bero did not warrant a stay despite the car’s relevance and the potential prejudice from its loss, I do not see how a stay is justified in this case where the security videotape is but marginally relevant and its loss only minimally prejudicial to Ms. Dulude’s defence.
C. Conclusion
[44] This is not one of those rare cases where the prejudice to the accused from the lost evidence was so great that a stay was justified. Accordingly, I would grant leave to appeal, allow the appeal, set aside the decision of the Summary Conviction Appeal Court and order a new trial.
RELEASED: Sept. 1, 2004
“KMW”
“John Laskin J.A.”
“I agree K.M. Weiler J.A.”
“I agree K. Feldman J.A.”