Court File and Parties

Court File No.: Regional Municipality of York 11-07216 Date: 2013-01-16 Ontario Court of Justice

Between: Her Majesty the Queen — and — Christopher Huber

Before: Justice Peter N. Bourque

Judgment January 16, 2013

Counsel: Mr. Michael Holme for the Crown Mr. Neil Singh for the accused Christopher Huber

Bourque J.:

Overview

[1] The defendant was arrested for impaired driving and driving with excess alcohol. The defendant admits that in the early morning hours of July 27, 2011, he was impaired by alcohol and also that his blood alcohol reading was 140 milligrams of alcohol in 100 millilitres of blood.

[2] The defendant denies that he was operating or had care and control of an automobile. He has also brought a challenge under section 7 and 24 of the Canadian Charter of Rights and Freedoms and states that the police were negligent in obtaining a video tape from a Tim Horton's location which viewed the scene where the offence took place. He states that as a result of the police negligence, the charges against him should be stayed.

The Evidence of Constable Paul Oakey

[3] Paul Oakey is a constable of some 2 years experience with the York Regional Police Services. As a result of a call he attended at the Tim Horton's outlet at Davis Drive and Langford Street South in Newmarket.

[4] He saw that Sergeant Hanko was beside a car, and the officer went up and saw the defendant in the driver's seat of an automobile. The officer noted signs of impairment (which are admitted by the defence) and arrested the defendant. As part of his investigation he went into the Tim Horton's and asked if the CCTV on the store captured any video. He was told to return the next day, and he did, whereupon the manager "Mark" gave him a disk with the CCTV footage on from the early morning. The officer put the disk in a property bag and delivered it to the station where it was put with the other disclosure materials. He did not look at the disk. Some three or so weeks later the disk was reviewed by an officer and found to be totally blank. The officer went back to the Tim Horton's to get a new disk but was informed that the portion had been "taped over" and there was no longer any footage available for the time of the incident. He believes that he was told that the retention time was some 24 hours.

The Evidence of Sergeant Trevor Hanko

[5] Was on patrol that morning and got a dispatch at 2:42 and went to Davis Drive and Langford Street to look for an automobile make and license number. The officer got there at 2:43 a.m. and drove down Langford and back to Davis Drive looking for the vehicle. He saw a vehicle which matched the description at 2:53 a.m. and saw it pull into the Tim Horton's parking lot. He was right behind and followed it into the lot and saw it stop partially in a spot. He parked nearby and went up to the vehicle. He saw the defendant alone in the driver's seat behind the wheel of the car. He noticed signs of impairment in his speech and eyes. There was no one else in the car. As he was standing beside the car officer Oakey and Janson came up and they took over the investigation. The Sgt returned to his car and saw the defendant being taken to Oakley's police cruiser. He described the defendant as being unsteady on his feet and taking deliberate steps.

The Evidence of the Accused Christopher Huber

[6] Christopher Huber testified in his own defence. He is working in real estate but was working in construction at the time of this incident. He admitted to having a criminal record of two entries, one for assault and the other for criminal harassment. He stated he was coming home from work and was called by a friend and went to his house, near the Tim Horton's at Davis Drive and Langford. He went to his friends and then took his car some half-hour later to the parking lot at Tim Horton's as there was no place to park at his friend's house. He stated that he walked back to his friend's house and while there he "partied" and drank a lot. At about 2:00 a.m. he went back to his car to get some cigarettes. He stated there was a carton in his car and he sat in the car, turned the key so the cigarette lighter would work and reclined the seat and smoked a cigarette.

[7] He states that a police officer came up to his window while he was smoking the cigarette and he was arrested for impaired driving. He admits that he was impaired. He denies that he entered the vehicle for the purpose of putting it in motion, as he was going to return to his friend's house, after finishing his cigarette.

[8] In cross-examination, he was asked if he could give the address of his friend's house. In chief he had stated that he had been to this house, "multiple times". He not only could not give the address of his friend's house, he could not even state which street he lived on. I believe that this omission is fatal to the defendant's credibility.

[9] I note as well that he quibbled with the Crown's suggestion that multiple times was the same as "many many" times. The area (as shown in Exhibit 2) is a suburban neighbourhood. His explanation that there was nowhere to park (not even on the street), seems unlikely, given the nature of the neighbourhood. Even if his friend lived in a basement apartment (as he stated), he could have found a place to park on the street.

[10] I also take into account that the defence has admitted that the defendant was indeed impaired by the consumption of alcohol. That does not lead inexorably to the conclusion that he should not be believed, but along with other factors can impact negatively on his credibility.

[11] I therefore cannot accept his evidence and I find that even applying the second part of R. v. W.D., I am not left with a reasonable doubt.

[12] For this reason, I cannot accept his explanation as to how he came to be parked at the Tim Horton's. It therefore does not provide me with sufficient evidence to make a finding under section 254 to displace the presumption that applies to a finding of care and control when a person occupies the seat normally occupied by a driver. While the defendant was charged with operating a motor vehicle, I believe that "care and control" is an included offence (R. v. Dun. - NTD - citation).

[13] Having said that, I find that the evidence of Sergeant Hanko was compelling. He testified directly that he saw the vehicle of the defendant drive into the Tim Horton's parking lot and park. He parked nearby and went up to the vehicle. He was not seriously shaken in his testimony in cross-examination. His notes are consistent with his testimony in court. There was no issue of his ability to see the defendant's vehicle, nor were there any traffic issues at 2:53 a.m. in the morning. The fact that he said the defendant was slumped in his seat does not confirm the defendant's evidence that he was reclined. Taking all of the evidence into account, I find that not only did the defendant have care and control of the automobile, he was, in fact, found by the police officer to be operating the automobile.

Charter Challenge

[14] Having made the findings of fact which would inexorably lead to a finding of guilt upon the charges, I must assess whether the issue with the missing CCTV evidence, is such that I could make a finding that the defendant's section 7 rights have been infringed, and if I make such a finding, should I consider that this is the clearest of cases and enter a stay of proceedings under section 24 of the Charter of Rights.

[15] The essential facts as set out in the evidence of Paul Oakey is as follows:

(a) He became aware during the investigation that there was the potential that the CCTV mounted on the Tim Horton's building could have captured the scene where the defendant parked his car and where he was arrested. There was the potential that the CCTV would have captured the arrival of the defendant's vehicle at the parking space and when that was Tim Horton's maintained a CCTV camera overlooking its property at this location. Tim Horton's is not an agent of the police and maintained this equipment for its own purposes;

(b) He took active steps to see if a recording was made, and if so to obtain a copy so it could be used in evidence;

(c) He took delivery of a disk, which he believed contained the information from the CCTV showing (from the camera's viewpoint) the scene of the incident;

(d) He did not take steps to view the disk, but took steps to preserve it so that it would be available for the prosecution and the defence. There is no evidence that anyone else in the police or Crown's office took steps to view it upon its receipt;

(e) When the disk was eventually viewed by the police, the disk had no information. I specifically accept the officer's statement that the disk had no information, as opposed to being corrupted by the police in some way, notwithstanding this suggestion by the defence in argument. There was no evidence upon which I could make such a finding;

(f) The officer sought to obtain another copy of the information but was informed that it was not possible as the information was no longer available from Tim Horton's.

[16] We do not reliably know what would have been on the disk, but there is clearly the potential to provide a video record of the events as they transpired. There is the potential that the defendant's version of events may have been confirmed by the video record. There is also the potential that the police version would have been borne out by the images.

The Law

[17] Section 7 of the Charter indicates: "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."

[18] R. v. La, [1997] 2 S.C.R. 680, sets out some principles including:

(a) The Crown's duty to disclose all relevant information in its possession gives rise to an obligation to preserve relevant evidence;

(b) When the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. If the explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached;

(c) The Crown fails to meet its disclosure obligations where it is unable to satisfy the judge and s. 7 of the Charter is accordingly breached. Such a failure may also suggest that an abuse of process has occurred. An accused need not establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose;

(d) The court, in determining whether the Crown's explanation is satisfactory, should analyse the circumstances surrounding the loss of the evidence;

(e) In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. As the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police;

(f) The actions of the police and Crown may amount to an abuse of process where the actions of the police or crown were such that they were intended to defeat the rights of the defendant;

(g) Even where the Crown has not breached its duty to disclose, the loss of a document may be so prejudicial that it impairs the right of an accused to receive a fair trial. To make out a breach of s. 7 of the Charter on the ground of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence.

Analysis

[19] The first question to decide is whether the crown has shown that the loss of the evidence is not due to unacceptable negligence on the part of the police. In our case, the error, as it was, was on the part of the third party, that is the evidence was never properly copied. The only element of police negligence was not in the preservation of the evidence but only in not immediately checking to see if the disk contained the information that they were led to believe was there. The disk itself was preserved and there is no evidence that any police action led to a loss of the information. In hindsight, the immediate review of the disk could have resulted in obtaining a new copy, but it must be remembered that the police did nothing to cause the original problem nor did they do anything to lose the evidence.

[20] In R. v. Singh, [2005] O.J. No. 5754, Justice Armstrong of the Ontario Court in Newmarket found that an officer was negligent in not reviewing a police made video tape to see that it showed events at the proper time. I note the court only used the word "negligent" to describe the conduct. I also note that the officer knew of the policy to destroy the original recording within 60 days. Here we not have the procedures of a third party, which are not necessarily known to the officer. I also note in Singh that there was an inconsistency in the police officer's evidence about his observations of the defendant's signs of impairment.

[21] I also note in Singh that the court went on to comment that the destruction of these tapes by the police after 60 days was arbitrary and was a "systematic disregard for the prosecution's obligation to preserve relevant evidence. This was in conformity with many cases decided in this jurisdiction that the destruction of the original tape by the police some 60 days later was in itself an unacceptable procedure and constituted unacceptable negligence.

[22] Unlike the situation in R. v. Carosella, [1977] 1 S.C.R. 80, there is no evidence that this was an intentional interference by a third party in the administration of justice.

[23] After due consideration, I cannot see how this is "unacceptable negligence". There was no obligation on the police to "double check" the work done by the third party.

[24] This was to paraphrase R. v. La, the result of "the frailties of human nature" and thus does not rise to the level of unacceptable negligence.

Has the failure to produce this video evidence prejudiced his s. 7 right to make a full answer and defence to the extent that it impairs his right to a fair trial?

[25] There are exceptional cases where, notwithstanding a lack of the requisite negligence, the courts have a discretion to grant a Section 7 application where the failure to produce the evidence impairs the defendant's right to a fair trial. In accordance with the test laid down by Ontario Court of Appeal in R. v. A.(D.), (1992), 76 C.C.C. (3d) 1 per Dubin C.J.O. at p. 8: "There must be an air of reality that the missing evidence would in fact and in a material way assist the accused".

[26] The onus is on the defendant on a balance of probabilities to assert this fact. If the video confirmed the defendant's story, then the onus is satisfied. Unfortunately, the converse could also be true, and thus it could assist the Crown's case. It may help no-one as there is no evidence as to exactly what area the camera covered and there is no evidence as to what period of time would be covered. It therefore becomes somewhat problematical for the defendant to satisfy the onus.

[27] Such a problem occurred in R. v. Nicholas where the court stated:

There is no evidence that DNA testing may have yielded evidence unhelpful to the prosecution. As was stated in Bero, at para. 52, a favourable forensic analysis simply creates a realistic possibility for the defence, and it is equally likely that the result would have been adverse to or neutral to the defence position.

[28] While there is potential here to assist the defence, it becomes a matter of speculation as to how far it could go. We have viva voce evidence of parties at the scene. To paraphrase the Chief Justice of Canada, the test is that of a "fair trial and not of a perfect one."

Conclusion

[29] I also note that in R v. Dulude, the court in discussing whether a stay was an appropriate remedy in that case (assuming a breach of section 7) discussed that the evidence of the Crown's failure to preserve the evidence may be a sufficient remedy, taking into account the actions of the police in not preserving the evidence. In this case, I have already found that the negligence was not "unacceptable". Even if it crossed that threshold, I do not think that the level of negligence could be such as to lead to the stay of the charges against the defendant.

[30] The Charter motion is dismissed.

[31] The defendant is found guilty on both counts and upon the principals in R. v. Keinapple, it would be my intention to stay the charge of driving with excess alcohol and register a conviction upon the charge of impaired driving.