Court File and Parties

Court File No.: BRAMPTON: 11-9713

Ontario Court of Justice Central West Region at Brampton

Between:

Her Majesty the Queen Respondent

— And —

Julian Cedrone Applicant

Before: Justice Ian B. Cowan

Counsel:

• Ms. E. O'Marra for the Crown
• Mr. M. Occhiuto for the applicant Julian Cedrone

Heard: February 9, 2012

Released: February 23, 2012

Ruling

Summary

[1] This is a ruling on a Charter application on the trial of Julian Cedrone, who is charged with impaired driving and driving with over 80 mgs. of alcohol in 100 mls. of blood.

[2] The applicant alleges that there has been a breach of section 7 of his rights under the Canadian Charter of Rights and Freedoms and seeks a judicial stay under section 24(1) of the Charter.

Summary of the Facts

[3] On July 22, 2011, two officers of the Ontario Provincial Police, on patrol on highway 407 near Airport Road in Brampton, observed a vehicle swerving within its lanes. They stopped the vehicle and interviewed the driver, who is the applicant before the court.

[4] Based on observations at the scene, they arrested Mr. Cedrone and transported him to the Aurora OPP detachment where he was turned over to an intoxilyzer operator. At the station, he provided two breath samples, yielding readings of 150 mgs. per cent blood alcohol, after which he was charged with driving with excess blood alcohol.

[5] He was released on a Promise to Appear with the first court date of August 8, 2011. On that date, written disclosure was provided by the Crown without video disclosure and the matter was adjourned to September 12, 2011. On the latter day, there was still no video disclosure and the matter was adjourned to October 3, 2011 with counsel submitting a written request to the Crown's office.

[6] On September 12, defence asked for disclosure of the police booking video and any other relevant video.

[7] On October 3, there was still no video disclosure and the matter was adjourned to October 18 with counsel submitting a reminder letter about the previous request.

[8] On October 18, there was still no video disclosure and the matter was adjourned to October 21, which was the final date by which the applicant could be eligible for "Stream A of the ignition interlock program" if he pleaded guilty to one of the charges.

[9] On October 18, counsel for the applicant received a written response from the Crown, dated October 17, advising that the OPP detachment in Aurora did not have video surveillance of the booking/cell area at the detachment.

[10] On October 18, counsel telephoned the Brampton Crown's office in the afternoon and received confirmation from the Crown that the OPP do in fact videotape all defendants in the intoxilyzer room and on October 18 counsel submitted another written request to the Crown's office for video disclosure.

[11] In counsel's letter of September 12, he urged the Crown to make disclosure of the video "in order that the applicant may assess possible participation in the interlock program in a timely manner", and emphasized that the applicant would be prejudiced by further delay.

[12] No video disclosure was available by October 21, and the applicant's eligibility for a Stream A expired.

[13] On October 31, 2011, the Applicant served the Crown with the Notice of Application returnable November 7, 2011 in relation to the Crown's failure to disclose the breath room video.

[14] On or about November 4, 2011, Ms. Kim of the Brampton Crown's office telephoned defence counsel in relation to this Charter application. Counsel advised Kim about his concerns regarding the information that the police station in question did not have video surveillance of its bookings/cell area, as the applicant had advised him that there was a visible video camera in his cell and was advised of this by police on the evening of his arrest. Further, paper disclosure indicated that the applicant was performing martial arts in his cell, which could not have been known without video surveillance.

[15] Approximately 15 minutes after this initial telephone conversation of November 4, Ms. Kim telephoned defence counsel, advising that she had phoned the Aurora OPP detachment and had been told that the police station did in fact have video surveillance of the booking/cell area but that the video surveillance did not record that area.

[16] Secondly, she advised that the breath room at the station lacked the capacity to videotape and thus no video of the breath room ever existed. She also told counsel that suspected impaired drivers who are stopped by the OPP in Brampton are routinely taken for breathalyzer tests to the closest OPP detachment in Port Credit, which is equipped with multi-camera video recording technology. She had no explanation as to why the applicant had been transported to Aurora for his breath tests.

[17] Counsel Mr. Occhiuto frankly conceded to me that his client had not anticipated pleading guilty within the 90 day period or thereafter. So that any consideration of a remedy, attempting to put the applicant into the same position as if he had pleaded within 90 days, based upon a later guilty plea, cannot be considered.

The Positions of the Parties

[18] The applicant argued that the Crown is under an obligation to disclose, on a continuing basis, all relevant information that is potentially useful to the defence. Failure to disclose relevant information impedes the ability to make full answer and defence.

[19] The applicant argued that there are two aspects to this argument in this case: firstly that the officers made a conscious decision to take the applicant to a police station where there would be no video recording done of the intoxilyzer tests. This decision impacts on the applicant's ability to test, by reliable evidence, the observations of impairment attested to by the officer and prevents the court from viewing for itself, the level of sobriety exhibited by the applicant.

[20] By agreement, this issue will be dealt with at trial when evidence is heard in a blended hearing.

[21] The issue the applicant urged the court to decide is whether the applicant's section 7 rights were violated when the police, and then the Crown, did not inform the applicant until after the 90 day "stream A" period had almost expired, that there was no intoxilyzer video available as part of disclosure, and that this prevented the applicant from assessing the strength of the Crown's case before such time, thereby impacting on a possible guilty plea and lesser penalty.

[22] The Applicant argued that although there are no cases on point dealing with this issue, the courts have routinely granted stays of proceedings due to a loss or destruction of the video. And there is no other appropriate remedy that would cure the prejudice.

The Position of the Crown

[23] The Crown urged me to dismiss this application on the basis that the applicant has pleaded not guilty on this trial. He at no time expressed an intention to plead guilty, either before or after the 90 day period and to take advantage of an early plea. While there was some misinformation provided by the Crown in terms of the existence of the video, this was done due to the police division, being outside of the Region of Peel and the Crown was unfamiliar with the police practices in that region.

[24] When it was ascertained that the video did not exist, counsel was informed of this.

[25] The Crown further argued that the "right to drive" is not a liberty interest protected by section 7. Further, the provincial licence suspension provided for in section 41 of the Highway Traffic Act is not "a punishment or treatment" for the purposes of an analysis under the Charter, but is rather a civil consequence of a criminal conviction.

The Charter of Rights and Freedoms

[26] Section 7 of the Charter provides that:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[27] Section 7 has been interpreted thusly:

The phrase "principles of fundamental justice" does not describe a protected right itself but rather qualifies the protected right not to be deprived of life, liberty and security of the person. The meaning of the principles of fundamental justice is to be determined having regard to the purpose of the section and its context in the Charter. Thus ss. 8 to 14 of the Charter address specific deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of this section. They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person. The term "fundamental justice" was not synonymous merely with natural justice. The principles of fundamental justice are to be found in the basic tenets and principles not only of our judicial process, but also of the other components of the legal system. While many of the principles of fundamental justice are procedural in nature, they are not limited solely to procedural guarantees. Whether any given principle might be said to be a principle of fundamental justice within the meaning of this section will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in the legal system as it evolves (emphasis my own): Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486, 23 C.C.C. (3d) 289.

The Highway Traffic Act

The Highway Traffic Act provides that:

[28] Suspension on conviction for certain offences

Section 41(1) Subject to subsections 41.1(1), (2) and (3), the driver's licence of a person who is convicted of an offence,

(a) under section 220, 221 or 236 of the Criminal Code (Canada) committed by means of a motor vehicle or a street car within the meaning of this Act or a motorized snow vehicle;

(b) under section 249, 249.1, 249.2, 249.3, 249.4 or 252 of the Criminal Code (Canada) committed while driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle;

(b.1) under section 253 or 255 of the Criminal Code (Canada) committed while,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or

(ii) operating or having the care or control of a vessel within the meaning of section 48;

(c) under section 254 of the Criminal Code (Canada) committed in relation to,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or

(ii) operating or having the care or control of a vessel within the meaning of section 48;

(d) under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40; or

(e) referred to in a predecessor to this subsection,

is thereupon suspended.

Ignition Interlock Program under the Highway Traffic Act

Established by O.Reg. 163/10 amending O.Reg. 287/08.

[29] Reduced suspension with ignition interlock condition:

(4.1) A person whose driver's licence is suspended under subsection (1) for an offence listed in clause (1)(b.1) or (c) may apply to the Registrar for the reinstatement of his or her licence before the end of the licence suspension period, and the Registrar may reinstate the person's licence before the end of the licence suspension period, if the person has been notified under section 57 that he or she is required to participate in a conduct review program under that section that consists of or includes an ignition interlock program. 2007, c. 13, s. 6(2).

Under s. 25(4) of the Highway Traffic Act regulations eligible offenders that plead guilty and are prohibited from driving within 90 days of the offence date can get shorter periods of suspension and ignition interlock: minimum 3 months suspension and 9 months ignition interlock.

For those convicted after a trial or guilty plea more than 90 days after the offence: Minimum 6 months suspension and 12 months ignition interlock.

Finding

[30] I'm not satisfied that the applicant has shown on a balance of probabilities that there has been a violation of his rights under section 7 of the Charter.

[31] While R. v. Stinchcombe, [1991] 3 S.C.R. 326 provides that substantial disclosure of the Crown's case should be provided by the first court appearance, there is a continuing obligation of the Crown to provide disclosure, and there is no rule in any court decisions that mandate that it be provided within 90 days.

[32] It is unfortunate that in this case, there was no notation in the intoxilyzer officer's notes that there was neither video or audio recording done in the intoxilyzer room. In the Region of Peel it is well known to participants in the justice system that intoxilyzer rooms have recording devices. So that DVDs are expected in disclosure packages for this type of offence.

[33] In my experience it is rare to have an arrest in Peel for an impaired related offence where the intoxilyzer tests are taken in Aurora. It is apparent that the Crown attorney Ms. Kim was not aware that there was no DVD recording made there, and I do not conclude that any Crown intentionally misinformed the defence of its existence.

[34] Of particular note is the fact that while the applicant, through his counsel, was aware that he could only participate in "Stream A" if he entered his guilty plea within 90 days, at no time did he consider doing that and he has entered a "not guilty plea" at trial. As a result he suffered no prejudice even if there was a breach, which there was not.

[35] This particular part of the section 7 application is dismissed.

[36] The second aspect of this s.7 application, dealing with the decision to take the applicant to a division where the breath room proceedings are not recorded, will continue by consent of all parties, to be considered after hearing evidence on a blended evidentiary hearing at the trial.

Released: February 23, 2012

Justice Ian B. Cowan